Tunisia : Legislative frameworks and practices hindering freedom of expression
Abu Al-Khadhra Al-Tunisi [1] (This pseudonym is used to ensure safety and security)
Legal and human rights expert, renowned for their pivotal role during Tunisia's democratic transition following the Revolution of Freedom and Dignity. As a fervent advocate, Mr. Al-Tunsi has dedicated his career to championing the rule of law, freedom of expression, and the independence of the judiciary in Tunisia.
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Today, the most critical challenge facing the Arab region is the regimes’ systematic violation on individuals and sectors of civil society, including associations, parties, syndicates, journalists, bloggers, artists, and others in the equal right to freedom of expression and publication, as guaranteed by their constitutions and legislation, hindering broad political participation. These violations cause serious damage to the right to freedom of expression and of the media. These are essential rights for every democratic and pluralistic society and respect the right to freedom of expression, for members of the press, individuals, and others, in whichever forms they choose to express their opinions and monitor power.
Theses legislative policies or authoritarian practices contribute to restriction of the public space, criminalizing expression and freedom of opinion, and preventing various forms of media from their essential roles in communicating to all without regard to illegal restrictions. Although, most constitutions in the Arab region explicitly adopt the right to freedom of expression, the legislative policies adopted by the regimes deviate from the constitutional mandate granted to prosecutorial councils. Thus, the general trend is deterrent and restrictive to the right to freedom of expression.
The Tunisian experience[2] is a blatant demonstration of this legislative deviation from the rights enshrined in the suspended Constitution of 1 June 1959.[3] The Tunisian Constitution of 1959 explicitly guarantees the right to freedom of expression, press, and publication, and refers to the laws to control and regulate it. Article 8 therein stipulates “Freedom of thought, expression, the press, publication, assembly and the establishment of associations is guaranteed and shall be exercised in accordance with the law.”[4] Regimes use this reference to regulate this right by emptying its content, introducing punitive legislation with heavy penalties in the Tunisian Press Code,[5] including sentences of up to five years in prison, financial penalties, confiscation of journals, and prohibiting their promotion and publication. Global transformations, including technological ones, greatly disrupted the withholding of information and fueled protests against the suppression of opinion and thought, and the inability of authoritarian regimes to control the flow and exchange of information, revealing the extent of the violations suffered by activists. These transformations led to online campaigns aimed at resisting tyranny and exposing the grave violations against political activists, journalists, syndicate members, and others.
Zouhair Yahyaoui’s sarcastic blogs in Arabic angered the Tunisian authorities and the Ben Ali regime, who tortured him in the corridors of the Ministry of Interior, subjecting him to various forms of torture until he died in 2005. Zuhair Yahyaoui, known after as “Ettounsi,” (the Tunisian) became the first victim of the Ben Ali regime’s cyber police.[6]
Civil society, including parties, associations, and organizations, gathered through protests to demand freedom and dignity. Youth in various regions, universities, and online led these movements to resist the tyranny of the regime, sparking the revolution in Sidi Bouzid following Mohamed Bouazizi’s self-immolation, to overthrow an authoritarian regime of 23 years.
The most prominent demand of this massive popular uprising was “Work, freedom, national dignity,” after the release of individual and collective wills. The angry masses reclaimed one of the most important verses of Aboul-Qacem Echebbi’s poem from his book The Will to Live: “If, one day, the people wills to live,”[7] as their constitution to redeem their right to public space, freedom, and national dignity. The masses further called for “No fear, no terror, the power belongs to the people,” providing an opportunity for a new constitution for the country. The new constitution was the result of a broad consensus representing a common denominator among all political factions, preceded by the establishment of a general framework for the exercise of most basic rights through decrees enacted by the Higher Authority for Realisation of the Objectives of the Revolution, Political Reform and Democratic Transition.[8] This Higher Authority issued Decree No. 87[9] regulating political parties, Decree No. 88[10] regulating associations, Decree No. 115[11] regulating the press, and Decree No. 116[12] establishing a revisionist commission, which was the result of important work by the Independent National Commission for Media and Communication Reform.[13]
Tunisia’s democratic transition is characterized by difficulties and complex political crises that almost derailed it after the political assassinations of Chokri Belaid and Mohamed Brahmi and the terrorist attacks. Despite the broad consensus on the Constitution of the Second Republic on 27 January 2014,[14] the transition crisis affected all the achievements after the 2019 elections, and after President Kais Saied announced on 25 July 2021, the suspension of the constitution. On 25 July 2022,[15] a new constitution was enacted, overturning those expectations and deepening the political and human rights crisis in the country.
Despite the similarity between the 2014 and 2022 constitutions, the legislative system that emerged after 25 July 2022, including Decree No. 54,[16] and judicial practices, witnessed a major reversal of the guarantees enshrined in the Constitution of 25 July 2022, for the enjoyment of rights and freedoms. The Constitution of 25 July 2022 withdrew all legal and institutional guarantees for judges and considered them a body subject to the control and instructions of the executive authority.[17] The constitution of 2022 further paved the way for circumventing all commitments made by Tunisia to fulfill its international obligations related to the protection of human rights contained in ratified international conventions. International conventions have supremacy over national laws, but lower than the constitution, and precede in application through the exclusionary rule, which the judge assumes as the guarantor of the protection of the rights and freedoms stipulated in these treaties and guaranteed by the constitution of the Republic.
I. Constitutional frameworks and restrictions on the right to freedom of expression, press, and publication
1. Constitutional enshrinement of the right to freedom of expression and its de facto and de jure evolution
1.1. The constitutional evolution of the right to freedom of expression
Tunisia’s first modern constitution was the Basic Charter of 1857. This was followed by the Constitution of 1861, and was replaced after the departure of the French administrators in 1956, by the Constitution of 1959, adopted on 1 June 1959 and amended in 1999 and 2002, following the Tunisian constitutional referendum of 2002. Following the Tunisian revolution from 17 December 2010 until 14 January 2011, a Constituent Assembly was elected with the main task[18] of enacting a new constitution. The post-revolution constitution was adopted on 27 January 2014, by 200 of 217 members of Assembly of the Representatives of the People. Its preamble stated, “Breaking with the old regime of tyranny and the suppression of the will of the people by illegally remaining in power and rigging elections, and to remain loyal to the principles of the Tunisian people’s revolution aimed at establishing a legitimacy based on democracy, freedom, equality, social justice, dignity, pluralism, human rights and the rotation of power and based on the will of the Tunisian people to elect a National Constituent Assembly to draft a new constitution for the country. Considering that the previous electoral law did not guarantee democratic, pluralistic, transparent and fair elections, it was agreed to elect the National Constituent Assembly.” On 22 September 2021, Presidential Decree No. 117 of 2021 was issued concerning exceptional measures, suspending most of the chapters of the 2014 constitution. On 25 July 2022, a new constitution was subsequently enacted by referendum,[19] drafted by the President of the Republic himself and submitted to a popular referendum.
1.2. Explicit enshrinement of the right to freedom of expression in the 2014 and 2022 constitutions
Despite fears that prevailed throughout the political class and civil society that the president’s unilateral enactment of a new national constitution would undo the rights and freedoms section of the Tunisian Revolution Constitution of 2014, the Constitution of 2022 preserved the rights and freedoms section of the repealed constitution, including the guarantees of freedom of opinion, thought, expression, information, and publication, setting two basic rules to protect the right to freedom of expression.
The first rule: Prohibiting prior censorship of audiovisual and other media content
One of the most important provisions of the 2014 Constitution and the 2022 Constitution is the prohibition of prior censorship of audio, visual, and written content related to freedom of expression, as stipulated in Articles 37 and 38 of the 2022 Constitution.[20]
Second rule: Establishing legal controls to restrict the right to freedom of expression
The new Tunisian constitution of 2022, similar to the 2014 constitution, set basic controls to define rights and freedoms through articles 49 and 55,[21] prohibiting any amendment that would undermine these rights and not compromise the essence of the right. However, despite these controls, the practice, application, and obligations of the state to fulfill and guarantee them have emerged by weakening the role of the judiciary and treating it as a function without guarantees of independence from the executive authority.
1.3. Constitutional regression and the weakening of regulatory institutions to protect rights and freedoms
Weakening the judiciary and transforming it from a judicial authority to a functional judiciary
Following the declaration of exceptional measures[22] and in accordance with the provisions of Article 80 of the Constitution of 2014 and the promulgation of the Constitution of 2022, the role of the judiciary in guaranteeing “the administration of justice, the supremacy of the Constitution, the rule of law, and the protection of rights and freedoms” was abolished, contrary to the provisions of Article 102 of the 2014 Constitution, and only Article 55 of the 2022 Constitution mandated the judicial bodies protect rights and freedoms. The legal profession was not considered a partner in the administration of justice.[23]
Retreating from the elected Supreme Judicial Council to an absent interim Supreme Judicial Council and granting the Minister of Justice’s full control over the career paths of judges
After the declaration of exceptional measures and the suspension of the 2014 constitution except for Chapters I and II, the elected Supreme Judicial Council was dismantled into three separate councils using the term “supervises” in a general and unclear manner. The organization of these councils was referred to the legislator without any restriction or conditions. The weakening of guarantees of judicial independence has had a direct impact on the role of the judge in protecting rights and freedoms, including the protection of the right to freedom of expression and freedom of the press, printing, and publishing.
The process of dismantling the system of governance after July 25 can be observed, after the president consolidated all powers through decrees No. 4, 11, and 35 of 2022.[24] Decree No. 11[25] dissolved the elected Supreme Judicial Council,[26] and replaced it with a council whose members are all appointed, although most are appointed in an ad hoc capacity. This aforementioned decree allows the president to ask the Interim Supreme Judicial Council to review appointments and conduct partial judicial movements (Article 15), and to object to the nomination, appointment, promotion, or transfer of judges during a judicial movement (Article 19). It further allows him to request the dismissal of any judge who violates his professional duties and to take the decision to dismiss if the council does not decide on the file (Article 20). The president was not satisfied with these powers and further issued Decree No. 35 of 2022, in which he revised Article 20, granting himself the power to dismiss judges without referring to the Supreme Judicial Council, following which 57 judges were relieved of their duties under Order No. 516 of 2022.
Failure of the executive authority and the Ministry of Justice to recognize the rulings of the administrative judiciary
Despite the Administrative Court ruling to suspend the implementation of these decrees, the executive authority did not implement these rulings, weakening the judicial authority’s position in protecting rights and freedoms, contrary to the international conventions ratified by Tunisia, which are considered an integral part of the national legal system. This paved the way for the adoption of the penal legal code with its broad, multiple, and conflicting texts with Decree No. 115 of 2011. Decree No. 115 of 2011 regulated freedom of expression, publication, and the press profession, which is the legal framework for the exercise of freedom of expression and the establishment of legal controls related to the restriction of rights and freedoms after spreading a climate of fear in the judicial environment, which has turned into a function subordinate to the executive authority.
2. Acceptable restrictions on the right to freedom of expression, press, and publication
2.1 The function of the press in a democratic society
The European Court of Human Rights has ruled that “The function of the press includes the creation of forums for public debate. However, the realization of this function is not limited to the media or professional journalists. In the present case, the preparation of the forum of public debate was conducted by a non-governmental organization. The purpose of the applicant’s activities can therefore be said to have been an essential element of informed public debate. The Court has repeatedly recognized civil society’s important contribution to the discussion of public affairs. The applicant is an association involved in human rights litigation with various objectives, including the protection of freedom of information. It may therefore be characterized, like the press, as a social ‘watchdog.’ In these circumstances, the Court is satisfied that its activities warrant similar Convention protection to that afforded to the press.”[27]
2.2 International standards on restricting the right to freedom of expression
Restrictions on the right to freedom of expression and the press can only be applied in accordance with the Tshwane Principles[28] on National Security and the Right to Information, particularly the three-part test. The Human Rights Committee has particularly emphasized that Article 19 of the International Covenant on Civil and Political Rights (ICCPR) includes “news and information, of commercial expression and advertising, of works of art, etc.; it should not be confined to means of political, cultural or artistic expression.”[29] The right to freedom of expression further extends to controversial, erroneous, or even shocking material because the mere fact that an idea is unpopular or believed to be incorrect cannot justify preventing a person from expressing it. Although the right to freedom of expression under international law is not absolute, it can be restricted in certain narrowly defined situations, and those restrictions must meet the so-called three-part test.
Obligations of States to promote freedom of the press and publication
Public authorities are obliged not to withhold information unless proven that the information
a) relating to a legitimate purpose provided for by law
b) its disclosure threatens to cause significant harm to that purpose
c) the harm to the purpose outweighs the public interest in obtaining the information
Article 55 of the Tunisian Constitution of 2022 defines the controls related to the rights and freedoms guaranteed by this constitution and their exercise without compromising their essence. Article 55 thereof states, “No restrictions shall be placed on the rights and freedoms guaranteed by this Constitution except by virtue of a law and for the necessity of a Democratic System, national defense, public security, public health, protection of the rights of others or public morals. These restrictions must not affect the essence of the rights and freedoms guaranteed in this Constitution, and they must be justified by their objectives and consistent with their justifications.”
Establishing the principle of the right to freedom of expression without harassment
The right to freedom of expression includes the right of the individual to express his opinions, and further includes the right of the public to receive these opinions and information without hindrance. This justifies the requirement of a compelling interest to limit the protection of freedom of expression, not just a potential or undefined interest. Accordingly, the right to expression is a fundamental constitutional right, thus the presumption in cases of opinion and expression must be to protect this right, which is the origin, while restriction is the exception. The judge must interpret narrowly in accordance with the rule of Article 540 of the Code of Obligations and Contracts, which requires that “Restrictive laws and exceptions to general or other laws must not be extended beyond the time and form they express.”
Article 19 of the International Covenant on Civil and Political Rights states, “3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.”
The three-part test is used to determine whether these restrictions are narrowly defined. This test requires that the restrictions are prescribed by law, the purpose of the restrictions is legitimate, and the restrictions do not conflict with the stringent test of necessity and proportionality,[30] enshrined in Article 49 of the Tunisian Constitution of 2014.
First paragraph: The three-part test for restricting the right to freedom of expression under Article 19, paragraph 3 of the International Covenant on Civil and Political Rights
International law generally allows some restrictions on the right to freedom of expression to protect various interests, but the legality of any restriction on this fundamental right must be assessed, according to international standards. International instruments include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention, the American Convention, and the African Charter, and further provide a “three-part test” to determine the legality of any restrictions on freedom of expression. All courts in countries that have ratified these documents are obliged to apply this three-part test when dealing with cases involving freedom of expression.
First: Condition of legality: Restrictions must be authorized by law
Article 19, paragraph 3 of the ICCPR requires that restrictions on the right to freedom of expression be prescribed by law. This condition requires a normative assessment. To qualify as law, a rule must be formulated with sufficient precision to enable an individual to regulate his or her behavior accordingly.[31]
Vague or overly broad restrictions on freedom of expression, or any failure to clarify the precise scope of their application, render them unacceptable under Article 19, paragraph 3.
The Tshawne three-part test is contained in Article 55 of the Tunisian Constitution of 2022. However, Decree No. 54 of 2022, dated 13 September 2022, related to combating crimes related to information and communication systems, has had serious consequences in the penal policy under which civil society activists, journalists, and bloggers are prosecuted, despite the violation of Article 24 of Decree No. 54 of the three-part test and the harm to freedom of expression and the protection of public order.
II. Frameworks of international treaties on the right to freedom of expression, press, and publication
Article 74 of the Constitution of 2022 stipulates that international treaties ratified by the Tunisian state are considered superior to laws and inferior to the Constitution.[32] The last paragraph thereof states, “Treaties ratified by the President of the Republic and approved by the Assembly of the Representatives of the People are superior to laws and inferior to the Constitution.” This imposes an obligation on the state party, whether in its legislation or practices, to respect this superiority and at the same time imposes on the national judge in the event of a conflict between the text of the treaty enshrining the right to freedom of expression and the text of the treaty to apply the rule of exclusion to guarantee rights and freedoms.
Universal Declaration of Human Rights
Freedom of expression a is basic human right. Article 19 of the Universal Declaration of Human Rights states, “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In one of its decisions, the European Court of Human Rights considered that “freedom of expression is one of the essential foundations of a democratic society and one of the fundamental conditions necessary for its advancement and the development of every human being.”
International Covenant on Civil and Political Rights (ICCPR)
The ICCPR gives binding force to many of the rights enshrined in the Universal Declaration of Human Rights. The ICCPR obligates its 167 state parties to respect and implement its provisions at the national level.[33]
Article 19, first and second paragraph of the ICCPR guarantees the right to freedom of expression, stating,
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
Tunisia ratified the International Covenant on Civil and Political Rights (ICCPR) in 1969 and entered into force on 23 March 1976.[34]
As a state party, Tunisia is bound by the provisions of the Covenant as a matter of international law, which is an integral part of the national legal framework, and is obliged to take the necessary legislative measures to put the treaty into effect in its national legislation.
General Comment No. 34 on Article 19, dated 12 September 2011, at its 102nd session[35]
The United Nations Human Rights Committee in its General Comment No. 34 of 21 June 2011,[36] the body charged with monitoring the implementation of the International Covenant on Civil and Political Rights by States parties, elaborated on the interpretation of the requirements of Article 19 by defining the totality of the rights contained in Article 19 of the International Covenant on Civil and Political Rights.
Freedom of Opinion
Article 19, paragraph 1, requires the protection of the right to hold opinions without interference. This is a right to which the ICCPR does not permit derogation or restriction. Freedom of opinion extends to the right to change one’s opinion at any time and for any reason of one’s own free choice. None of the rights enshrined in the Covenant may be impaired on the basis of actual, perceived, or presumed opinions. All expressions of opinion are protected, including those of a political, scientific, historical, moral, ethical, or religious nature. Criminalizing the holding of any opinion is incompatible with paragraph 1. The harassment, intimidation, or stigmatization, including arrest, detention, trial or imprisonment, of a person on account of his or her views constitutes a violation of article 19, paragraph 1.
Freedom of Expression
Article 19, paragraph 2 of the ICCPR requires States parties to guarantee the right to freedom of expression, including the right to seek, receive, and impart information and ideas of all kinds, regardless of frontiers. This right includes the expression of information that includes any form of ideas and opinions that can be transmitted to others or received, subject to the provisions of article 19, paragraph 3, and article 20. This right further includes political speech, personal commentary, public affairs commentary, opinion polling, discussion of human rights, journalism, cultural expression, art, teaching, and religious discourse, and may further include commercial advertising. The scope of paragraph 2 even covers the expression of an opinion that may be considered highly offensive, although this form of expression may be subject to restriction, in accordance with the provisions of Article 19, paragraph 3, and Article 20. Paragraph 2 provides for the protection of all forms of expression and their means of dissemination. These forms include spoken and written language, sign language, and non-verbal expression, including images and artifacts. Means of expression include books, newspapers, leaflets, posters, banners, signs, clothing and legal documents, and all audio-visual forms, and electronic and networked modes of expression.
Freedom of Expression and Media
A free, uncensored, and unhindered press or other media is indispensable for any society to ensure freedom of opinion, freedom of expression, and the enjoyment of the other rights enshrined in the Covenant. The press or other media is the cornerstone of a democratic society. The Covenant establishes the right of the media to receive information on which to base the performance of their functions. The free exchange of information and opinions on matters of public and political affairs between citizens, candidates, and elected representatives is essential. This implies a free press and other media able to comment on public matters without censorship or restriction and to inform public opinion. The public further has a corresponding right to receive what the media produce as a means of protecting the rights of media users, including members of ethnic and linguistic minorities, to receive a wide range of information and ideas.”
General Comment No. 34 is an authoritative interpretation of the minimum standards guaranteed by Article 19 of the International Covenant on Civil and Political Rights and a detailed elaboration of the provisions of international law relating to freedom of expression and access to information.[37] As the jurisprudence of the Human Rights Committee, this comment helps address issues related to freedom of opinion and expression in Tunisia by referring to its content with the help of the HRC’s jurisprudence on freedom of expression and in particular the application of Article 19 to the International Covenant on Civil and Political Rights.
The African Charter on Human and Peoples’ Rights
Tunisia is a party to the African Charter on Human and Peoples’ Rights,[38] adopted by the Organization of African Unity, which later became the African Union, signed in Nairobi, Kenya, on 28 June 1981, and entered into force on 21 October 1986, guaranteeing freedom of expression in Article 8. Tunisia ratified the Protocol as a member state and deposited a declaration accepting the Court’s jurisdiction like eight other African countries, allowing its citizens and NGOs with observer status to the African Commission to submit complaints directly to the Court. Ibrahim Belguith, a Tunisian lawyer,[39] was able to file a petition against Tunisia before the African Court of Human and Peoples’ Rights, demanding the court to “annul Presidential Order No. 117 of 22 September 2021, concerning exceptional measures. These exceptional measures had a direct impact on the functioning of institutions and legislative options, especially with regard to fundamental rights and freedom of expression, press, and publication after the issuance of Decree 54 of 2022,[40] related to combating crimes related to information and communication systems.
III. The national legislative framework and its challenges in relation to the constitution and ratified international treaties
The Tunisian legislative framework in relation to freedom of expression, press, and publication is characterized by the frequency and abundance of texts regulating the same field between the legal texts contained in the Tunisian Penal Code,[41] the general trend during the transitional stages, and the refusal to implement the requirements of Decree-law 115 of 2011,[42] related to the freedom of the press, printing, and publishing. Article 1 of Decree-law 115 of 2011 states, “The right to freedom of expression is guaranteed and exercised in accordance with the stipulations of the International Covenant on Civil and Political Rights, other related treaties ratified by the Republic of Tunisia and the provisions of the present decree-law. The right to freedom of expression includes the free circulation of ideas, opinions and information of all kinds, their publication, reception and exchange. Freedom of expression may only be restricted by virtue of a legislative text and provided that:
- it is in pursuit of a legitimate interest consisting in respect for the rights and dignity of others, the preservation of public order or the protection of national defense and security.
- and that it is necessary and proportionate to the measures that must be adopted in a democratic society, without constituting a risk of infringement of the substantive right to freedom of expression and information.”
First approach: Applying the requirements of Decree-law 115 of 2011 to freedom of expression cases
In the case of Adel al-Nafti against Mohamed Na’im bin Mohamed Al-Hajj Mansour,[43] the court ruled that only the victim has the right to file a complaint and that the public prosecution can only initiate public proceedings in the field of freedom of expression, according to certain procedures regulated by the aforementioned Decree-law 115. The court stated in one of its reasoning, “Contrary to the Court of First Instance’s view that Decree-law No. 115 does not apply to the facts of the case, given that the article in question was published on a website, the provisions of the decree are fully applicable to the facts of the case, given that the criticized article was published on a blog open to the public on the Internet. Article 56 of the decree prescribes a penalty for anyone who commits the crime of defamation through one of the methods specified in Article 50 of the decree, including the means of “electronic media.” Regardless of whether it is proven that the accused deliberately made an fake allegation or attribution in public that would damage the complainant’s reputation and cause him direct harm, the legislator requires anyone who claims to have been defamed through one of the methods listed in Article 50 of the decree summon the complainant before the court in accordance with the conditions and procedures outlined above and under Article 72 to enable him to present a counterargument, as required by Article 59 and in accordance with the procedures outlined in Article 73, otherwise “the prosecution will be nullified.””
Second approach: Judicial instability over the application of Decree-law 115 on freedom of expression
The approach that we referred to in the case of Adel al-Nafti was not adopted by most judicial bodies at various levels. The legal debate on the application of the requirements of Decree-law 115 of 2011 did not end political and ideological conflicts over the concepts of freedom of expression, press, and publication as it represents a strong control for all the ruling system. Regimes that come to power often do everything in their power to restrict freedoms in general, including freedom of expression in its various forms.
Third approach: The dangerous retreat from the application of the requirements of Decree-law 115 of 2011 and its serious repercussions on the right to freedom of expression, press, and publication
Numerous judicial tendencies considered Decree-law No. 115 of 2011 to be specific to journalists, making its scope of application narrow, contrary to what is stipulated in Article 2 thereof. Article 2 stipulates, “This decree aims to regulate freedom of expression. The following terms have the meaning of this decree.” The decree defines its scope of application strictly to everything related to freedom of expression for journalists and others to protect the right to freedom of expression. Other courts have limited its applicability to anyone who uses public means of dissemination to express, transmit, or publish ideas and opinions of all kinds. The public prosecution has regained control over prosecution in the field of freedom of expression by referring to the penal texts contained in the Criminal Code, the Telecommunications Code, or Decree No. 54 of 2022. The application of legal texts, including those that came after the revolution, is characterized by decrees and the establishment of the Audiovisual Communications Commission, pursuant to Decree 116 of 2011,[44] which played a key role in modifying audiovisual content until its activity was halted due to the suspension of the pensions of some of its members and its president’s retirement.
The legislative challenges are characterized by the reversal of the legal texts enshrining the right to freedom and pluralism and the application of punitive texts, which guarantee custodial penalties for all forms of expression, given the nature of their broad wording, allowing them to be adopted by the public prosecution in a context hostile to freedoms in general, including freedom of expression, press, and publication. These punitive legal texts include Article 120,[45] Article 121,[46] and Article 125[47] of the Criminal Code, and Article 86 of the Telecommunications Code.[48] This is contrary to the direction of the Court of Cassation in its penal decision,[49] which stated, “Since the defamation and attack on honor was not committed in a traditional way, and outside the framework of the physical public space, but in a virtual space open to the public, represented by the website called Al-Sada on the pages of the social media site Facebook. It falls outside the scope of the crime of defamation provided for in the Penal Code and its punishment, and becomes part of the press, printing and publishing crimes regulated by Decree-law 115 of 2011, according to Article 55 of the decree, which stipulates that the decree applies when the statements are made in the form of online speeches, writings, posts, or publications.”
The period following the declaration of exceptional measures on 25 July 2021, witnessed a serious deviation in the implementation of the 2014 Constitution in its two chapters that were not suspended related to rights and freedoms. Although the new constitution re-adopted all the provisions of the chapter on rights and freedoms, especially regarding the right to freedom of expression, press, and publication, it has been confirmed by the practices and policies followed, especially the penal ones that the application of the requirements of Decree-law 115 of 2011 has been completely ruled out. Decree-law regulates freedom of expression, press, printing, and publication as a special text that takes precedence over other texts, whether in special laws or in the penal code. This was highlighted by the public prosecution’s reliance on Article 22 of the Code of Criminal Procedure[50] to initiate criminal proceedings, and the extensive use of Article 67 of the Criminal Code to prosecute journalists, politicians, and citizens for publicly expressing their opinions, including through audiovisual media or social networks.
Tunisia faces legislative inflation, with the penal texts in force, which have not been amended and conflict with the provisions of the constitution and ratified international conventions amid absence of guarantees for an independent judge. This situation makes the right to freedom of expression, press, and publication, a right contingent on the will of the political authority, which directs it to its advantage every time, utilizing the weakness of the judiciary and the absence of constitutional oversight of laws, due to the absence of a constitutional court despite the possibility of establishing it under the Constitution of 25 July 2022.
[1] A Tunisian judge
[2] Law No. 57 of 1959. 1 June 1959. Concerning the sealing and promulgation of the Constitution of the Republic.
[3] Suspended on 3 March 2011 and repealed by Constitutive Law No. 6 of 2011 dated 16 December 2011 on the temporary organization of public authorities.
[4] Article 8, Paragraphs 3, 4, 5, 6 and 7 were added by Constitutional Law No. 65 of 1997 dated 27 October 1997.
[5] Law No. 32 of 1975 dated 28 April 1975 promulgating the Press Code.
[6] Late 2001, Zouhair Yahyaoui, a 33-year-old with a master’s degree in economics, launched an online magazine called TUNeZINE, a reference to President Ben Ali’s first name. Yahyaoui’s team’s colloquial Arabic-language blog writings with sarcastic humor angered the Tunisian authorities and the Ben Ali regime, who tortured him in the corridors of the Interior Ministry until his health deteriorated and he died in 2005. He became known as the martyr of the Internet.
[7] Aboul-Qacem Echebbi. Tunisian poet. Born in the village of Chebia, on the outskirts of Tozeur, the capital of the Tunisian oases in the south, and learned Arabic at the Zitouni Institute in Tunis.
[8] Decree No. 6 of 2011. 18 February 2011, establishing the High Authority for the Achievement of the Objectives of the Revolution, Political Reform and Democratic Transition.
[9] Decree No. 87 of 2011. 24 September 2011 on the organization of political parties.
[10] Decree No. 88 of 2011. 24 September 2011 on the organization of associations.
[11] Decree No. 115 of 2011. 2 November 2011 on freedom of the press, printing and publishing.
[12] Decree No. 116 of 2011. 2 November 2011 on freedom of audiovisual communication and the establishment of an independent High Authority for Audiovisual Communication.
[13] Decree No. 10 of 2011. 2 March 2011, establishing an independent national authority for the reform of media and communication.
[14] The Constitution of the Republic of Tunisia promulgated on 27 January 2014.
[15] Presidential Decree No. 578 of 2022. 30 June 2022, concerning the publication of the draft of the new constitution of the Republic of Tunisia, the subject of the referendum scheduled for 25 July 2022.
[16] Decree No. 54 of 2022. 13 September 2022 on combating crimes related to information and communication systems.
[17] Article 117, “The judiciary is an independent function exercised by judges who are subject to no authority other than the law.”
[18] Decree No. 35 of 2011. 10 May 2011, concerning the election of the National Constituent Assembly.
[19] The results announced on the evening of 26 June 2022. The total number of voters was 2,830,094, with an overwhelming majority of 2,607,884 (94.60 percent) in favor, and 148,723 (5.40 percent) rejecting the new draft constitution.
[20] Article 37, “freedom of opinion, thought, expression, information and publication is guaranteed. No prior censorship may be exercised on these freedoms.”
Article 38, “the state guarantees the right to information and the right of access to information. The state shall endeavor to guarantee the right of access to communication networks.”
[21] Article 55, “Restrictions on the rights and freedoms guaranteed by this constitution may only be imposed by law and only when necessary for national defense, public security, public health, protection of the rights of others, or public morals. Such restrictions must not affect the essence of the rights and freedoms guaranteed by this Constitution and must be justified by their objectives and proportionate to their necessity.
No revision may jeopardize the gains of human rights and freedoms guaranteed by this constitution. All judicial bodies must protect these rights and freedoms from any violation.”
[22] Presidential Decree No. 117 of 2021. 22 September 2021, concerning exceptional measures.
[23] Article 105, “the legal profession is a free and independent profession that participates in the administration of justice and the defense of rights and freedoms.”
[24] Decree No. 35 of 2022. 1 June 2022, amending Decree No. 11 of 2022. 12 February 2022, establishing the Interim Supreme Judicial Council.
[25] Decree No. 11 of 2022. 12 February 2022 establishing the Interim Supreme Judicial Council.
[26] Organic Law No. 34 of 2016. 28 April 2016, concerning the Supreme Judicial Council.
[27] European Court of Human Rights. Freedoms Society v. Hungary, Application No. 37374/05 (2009), paragraph 27.
[28] Drafted in Tshwane, South Africa and issued on 12 June 2013.
[29] Ballantyne and Davidson v. Canada, Communication No. 359/1989 and McIntyre v. Canada, Communication No. 385/1989, UN Doc No. CCPR/C/47/D/359/1989 and 385/1989/Rev 1. 5 May 1993, Annex, paragraph 11.3.
[30] Velichkin v. Belarus, UN Doc. International Covenant on Civil and Political Freedoms /S/85/S/1022/2001 (2005).
[31] Leonardus Johannes Maria de Groot v. State of the Netherlands, Report No. 578/1994, UN Doc, Covenant on Civil and Political Rights, 1995.
[32] Article 74, “The President of the Republic ratifies treaties and authorizes their publication. Treaties related to state borders, commercial treaties, treaties related to international organization, and those related to the state's financial commitments, and treaties containing provisions of a legislative nature, may not be ratified except after approval by the Assembly of the Representatives of the People. Treaties are not valid until they are ratified, provided that they are implemented by the other party. Treaties ratified by the President of the Republic and approved by the Assembly of the Representatives of the People are superior to laws and inferior to the Constitution.”
[33] Article 2 of the Covenant on Civil and Political Rights. General Assembly Resolution 2200 xxi, 21, Official Records of the United Nations General Committee 16 in UN Doc. A/6316 (1966); 999 UNTS 171; 6 ILM 368 (1967) 2200 xxi.
[34] Pursuant to the ratification by the House of Representatives pursuant to Law No. 30 of 1968, dated 29 November 1968, published in the Official Gazette of the Republic of Tunisia No. 51 of November 29, 1968, p. 1477). Without any reservation.
[35] Human Rights Committee Decision No. CCPR/C/GC/34, adopted on 12 September 2011 at its 102nd session.
[36] Ibid
[37] Article 19, Statement on the Human Rights Committee, General Comment No. 34.
[38] Adopted on 27 June 1981, OAU Doc. CAB / LEG / 67/3 Revised on 21 May I.L.M. 58 (1982), entered into force on 21 October 1986.
[39] “I acted as any responsible citizen but also as a lawyer,” Belguith statement following the publication of the case.
[40] Decree No. 54 of 2022. 13 September 2022, on combating crimes related to information and communication systems.
[41] Order of 9 July 1913, concerning the promulgation of the Penal Code.
[42] Decree No. 115 of 2011. 2 November 2011, on freedom of the press, printing and publishing.
[43] Appellate Decision No. 2500. 14 February 2013 Adel al-Nafti v. Mohamed Na'im bin Mohamed Al-Hajj Mansour.
[44] Decree No. 116 of 2011. 2 November 2011, concerning freedom of audiovisual communication and establishing an independent High Authority for Audiovisual Communication.
[45] Article 120 of the Penal Code, “A conspiracy created to commit violence against public officers is punishable by a three-year prison term if the conspiracy was not premeditated. If the act was premeditated, the punishment is 5 years.”
[46] Article 121b of the Penal Code, “When done knowingly, the sale, distribution and the reproduction of prohibited works, the publication or the distribution under a different title or name of a prohibited book or work are punishable with a prison term of between 16 days and one year and a fine ranging from 60 to 600 dinars.
The Ministries of interior proceed will to order administration stop the reproduction or publications, and seize all banned books or works.”
[47] A penalty of one year in prison and a fine of one hundred and twenty dinars shall be imposed on anyone who violates the side of a public official or a quasi-public official by word, gesture, or threat while performing his job or in connection with it.
[48] Article 86 of the Telecommunications Code, “shall be punished with imprisonment for a period ranging from one to two years and a fine of one hundred to one thousand dinars.”
[49] Criminal Censure Decision No. 31028. 20 December 2020.
[50] Article 20, “The Public Prosecution shall initiate and conduct public proceedings. It requires the application of the law and ensures the execution of legal decisions.”
Article 21, “The Public Prosecution is required to issue written summonses in accordance with the instructions given under the conditions set out in article 23. It is free to develop oral observations which it considers appropriate for the good of justice.”