The undersigned regional and international NGOs join Tunisian organisations in their demands that the government immediately withdraw a draft law on the broadcasting regulator which fails to meet international standards on freedom of expression and independent broadcasting in democratic countries.
As part of the important process of harmonising Tunisian legislation with the 2014 Constitution, a draft law was submitted to the Assembly of People’s Representatives in December 2017 and it is currently under review by the parliamentary Commission of Rights and Freedoms. The draft law would partly replace the existing legislation in this area -Decree-Law No. 116-2011, on the Freedom of Broadcasting Communication and the creation of the Higher Independent Audio-Visual Communication Authority (HAICA) – with new legislation solely establishing a new broadcasting regulator, the Audio-Visual Commission.
The draft law and associated reforms have already been criticised by civil society, as the bill was prepared by the Tunisian government without substantial prior dialogue with local human rights and professional groups.
In June and again in December 2017, Tunisian and international human rights and professional groups wrote open letters to President Beji Caid Essebsi, Parliament Speaker Mohamed Ennacer and Prime Minister Youssef Chahed, expressing their deep concern about the draft law, its “unsatisfactory wording”, the “dangerous restrictions” of the prerogatives of the broadcasting regulator it would create, and the “deficiencies in the safeguards guaranteeing” its independence. They also explained that fragmenting of the legal framework “would open the door to ambiguity, conflict and limitation of the freedom of audiovisual communication and the independence of the regulatory body.” There has been no response.
Two legal analyses of the draft Law were made public in Tunis in early January 2018 by Vigilance for Democracy and the Civic State (VDCS) and by ARTICLE 19, which concluded that the draft law did not comply with applicable international standards.
We, the undersigned, call on the Tunisian government to immediately withdraw its draft law and initiate a constructive dialogue with relevant civil society and professional groups, independent media experts, and members of parliament. Such a dialogue would help pave the way for the adoption of a comprehensive audiovisual law, in line with the 2014 Constitution and international standards.
Signed,
Vigilance for Democracy and the Civic State
7amleh – Arab Center for the Advancement of Social Media
Adil Soz – International Foundation for Protection of Freedom of Speech
Afghanistan Journalists Center (AFJC)
Africa Freedom of Information Centre (AFIC)
Americans for Democracy & Human Rights in Bahrain (ADHRB)
Arabic Network for Human Rights Information (ANHRI)
ARTICLE 19
Association for Freedom of Thought and Expression (AFTE)
Association for Media Development in South Sudan (AMDISS)
Bahrain Center for Human Rights
Cartoonists Rights Network International (CRNI)
Center for Independent Journalism – Romania
Center for Media Freedom and Responsibility (CMFR)
Committee to Protect Journalists (CPJ)
Digital Rights Foundation
Foro de Periodismo Argentino
Foundation for Press Freedom – FLIP
Freedom Forum
I’lam Arab Center for Media Freedom Development and Research
Independent Journalism Center – Moldova
Index on Censorship
Maharat Foundation
Media, Entertainment and Arts Alliance
Media Institute of Southern Africa (MISA)
Media Watch
National Union of Somali Journalists (NUSOJ)
Pacific Islands News Association
Pakistan Press Foundation
Palestinian Center for Development and Media Freedoms (MADA)
Syrian Center for Media and Freedom of Expression (SCM)
Trinidad and Tobago’s Publishers and Broadcasters Association
World Association of Community Radio Broadcasters (AMARC)
World Association of Newspapers and News Publishers
Arab Society for Academic Freedoms
Association Ifouki Media Bladi (IBM), Morocco
Community Media Solutions (CMSO)
Community Radios Association (ARAM), Morocco
Euromed Rights
Center for Media Freedom (CMF), Morocco
Organization for Freedom of Expression and of the Media (OLIE), Morocco
Forum for alternatives in Morocco (FEMAS)
Freedom Now, Morocco
International Media Support (IMS)
Lawyers for Justice in Libya
Libya Al-Mostakbal Center for Media and Culture
Libyan Center for Press freedom (LCPF)
Moroccan Association for Investigative Journalism (AMJI)
Index on Censorship in association with Article 19, Tunisia, invite you to a workshop to launch Frontline Freespeech, a pilot project seeking to amplify the voice of individuals under pressure.
This workshop will bring together grassroots activists alongside leading free expression campaigners to share their recent experiences of censorship, to record and map current censorship challenges and to build impactful free speech networks in Tunisia.
A wide audience are expected to attend the workshop:campaigners, community leaders, network co-ordinators, human rights defenders, journalists, bloggers, artists, scholars and representatives of minority groups facing free expression challenges alongside key human rights organisations and independent media.
Tuesday 30 September 2014
Golden Tulip El Mechtel 3 Avenue Ouled
Haffouz | El Omrane, Tunis – Tunisia
To RSVP for this workshop please email Amira Cherif, [email protected], +21652479557
Registration will close on Tuesday 23 September 2014 | PDF
After decades of dictatorship and two years of arguments and compromises, Tunisians passed a new constitution laying the foundations for a new democracy. (Photo: Mohamed Krit / Demotix)
“A model to other peoples seeking reform” said UN Secretary-General, Ban Ki-moon on the successful passing in 2014 of the new Tunisian Constitution. Championing a secular political and legal system following the popular uprisings of 2011, this constitution sought to maintain robust protections of fundamental freedoms. However, the recent creation of the Technical Telecommunication Agency (ATT) threatens to undermine such progress and all in the service of digital surveillance.
Established by decree no. 2013-4506, bypassing parliamentary approval, ATT “provides technical support to judicial investigations into ICT-related crimes”, enabling it to monitor and record online traffic with full access to networks and information held by Internet Service Providers. Many critics of the agency liken it to the NSA; Tunisian Pirate Party member Raed Chammem stated on Twitter “We finally have our own Tunisian law-abusing agency…#NSA-like #A2T”.
The drafting process of the constitution demonstrated the core divergent forces at play in Tunisia. Central to this tension was the positioning of media freedom, most notably in the mandate and impartiality of the High Independent Authority for Audiovisual Communication (HAICA). Articles 122 and 124 reduced the authority to an advisory role as opposed to that of a regulator and required its membership to be elected by parliament. It took concerted lobbying by civil society activists and the National Union of Tunisian Journalists to modify both articles. As stated by Freedom House “the revised language is not just a victory for press freedom and the media sector, but also a triumph for Tunisia’s growing civil society.”
The fight for greater oversight by civil society and regulatory bodies as seen in the last minute amendments to the constitution has not, to date, impacted the creation and implementation of the ATT. The International Business Times wrote that the ATT “fails to properly define the organization’s relationship with judicial authorities, and there is no legal framework for providing civilian accountability”. They go on to quote Tunisian lawyer, Kais Berrjab who states that the ATT represents a “battery of legal irregularities related to unconstitutionality and illegality.”
With an emergent blogger-community, any movement to restrict, monitor or record online content, strikes at the heart of media freedom in Tunisia. Article five of decree no. 2013-4506 outlines that ATT activities will be “secret, unpublished and only sent to the government”. When coupled with the head of the agency being appointed by the Minister of Information and Communication alone, and government plans to exempt the ATT from legal obligations, which exist for all other agencies, in regards to transparency, the prominence of the state raises pertinent questions about the impartiality and non-partisanship of the agency.
The IB Times highlights a key motivation behind the creation of the ATT; the belief “that monitoring the activities of private citizens is essential to counterterrorism effort.” Indeed this argument is playing out across the world, most notably in the US concerning the actions of NSA and the UK with its own GCHQ.
Mounting public pressure to confront recent high-profile assassinations, as well as the perceived threat of Islamic extremism has been highlighted as key reasons for this move towards creating a more investigative body – ATT in all essences replaces the Tunisian Internet Agency (ATI) – however criticism remains as to how it can operate within the legal and political parameters outlined in the 2014 constitution.
In the same IB Times article, Jillian York of the Electronic Frontiers Foundation is quoted as saying, “starting with legitimate concerns about security, the state can then push beyond that and you see surveillance used against political dissidents or just in violation of basic privacy.” Herein lies the central conflict; the last minute redrafting of the constitution established civilian oversight, an impartial regulator and robust protections, but will the ATT, wired to the central government, through the Minister of Information and Communication, undermine such progress, making online participation as dangerous for journalists and bloggers as seen under the leadership of Zine el-Abidine Ben Ali?
The passing of the constitution proved to be a powerful call-to-action for Tunisian civil society, reshaping the government’s relationship with the media and civil society and embedding freedom of media and expression at the core of the legal and political system. But with the establishment of the ATT, Tunisia risks damaging this precedent, undermining the progress, as part of an ill-defined counterterrorism campaign.
The constitution cannot exist outside any effort to counter terrorism; it should, in fact, lie at the core of these efforts. The combatting of militancy and terrorism requires the support and involvement of all sectors of society, including the media and civil society. But if it is the state that strikes the first blow against the ideals and optimism contained within the constitution, will the emergent civil society be able to defend it?
After decades of dictatorship and two years of arguments and compromises, Tunisians finally have a new constitution laying the foundations for a new democracy. Deputies celebrating the ratification of the new constitution for Tunisia. Photo: Mohamed Krit / Demotix
Tunisia’s new constitution took effect on 10 February. The document which observers and commentators hailed as progressive and democratic, was overwhelmingly approved by the National Constituent Assembly (NCA) on 26 January.
Though the charter establishes Islam as the state religion, it makes no reference to Islamic law as a source of legislation. Instead, the document states that “Tunisia is a civil state based on citizenship, the will of the people, and the supremacy of law” (article 2).
Despite provisions banning “attacks on sanctities” and “apostasy accusations”, the constitution guarantees fundamental rights and liberties, including free expression, the right to privacy, access to information and women’s rights. The charter further enshrines third generation human rights such as access to communication networks and the right to a healthy environment.
Now that Tunisia has a constitution which does not fall short on human rights, what’s next? After all, a constitution is not an end in itself but a means to build democratic institutions and uphold rights and liberties
While, acknowledging that the constitution “responds to the main aspirations of the majority of Tunisians”, the Tunisian Association for Constitutional Rights highlighted the necessity for its “democratic implementation”.
“The most beautiful of constitutions could be amended, misapplied or even violated,” journalist Bechir Ben Yahmed warned in an opinion piece. “Read the constitutions of former USSR and the Republic of China. They are good, generous and progressive. Have they prevented Stalin and Mao from using them as they wish?”
In fact, after the ratification of its post-revolt constitution, a set of legal reforms await the cradle of Arab uprisings.
Amira Yahyaoui, a human rights activist and founder of the parliamentary watchdog Al Bawsala, told Index that the most urgent reform is “establishing a constitutional court to attack all stupid laws”.
The Tunisian constitution provides for the establishment of a 12 member constitutional court tasked with overseeing the constitutionality of laws. This court will be put in place after parliamentary elections take place later this year. In the meantime, the NCA will elect a temporary commission to supervise the constitutionality of draft laws.
Yahyaoui mentions legislation which does not permit children to travel abroad with their mothers unless the father issues a written authorisation. Fathers, however, do not require any authorisation if they were to travel with their children. She says, these measures are now unconstitutional since the 2014 charter enshrines “gender equality before the law”.
The future constitutional court should also revise anti free speech legislation, Yahyaoui adds. Three years after the ousting of the Ben Ali regime, prosecutors and judges still deploy his anti-free speech laws to intimidate journalists, artists and bloggers.
Journalist and blogger Hakim Ghanmi is facing military trial for merely criticising the staff of a military hospital in a blogpost he published last April. He was charged with “defamation”, “the undermining of the reputation of the army” (article 91 of the military code) and “harming others or disrupting their lives through public communication networks” (article 86 of the Telecommunications Code).
Indeed, the Tunisian Penal Code criminalizes defamation of public officials and state institutions (articles 128, 245 and 247) and punishes by up to two years imprisonment anyone convicted of “accusing a public official of committing an offense while holding office without having evidence to prove the accusation”.
Article 121 (3), further bans the publication of materials “liable to cause harm to public order or public morals” and punishes those convicted by up to five years imprisonment.
These laws are inconsistent with the new constitution which guarantees “freedom of opinion, thought, expression, media and publication” and bans “prior censorship”.
Privacy law also requires revision. “The state protects the right to privacy, the sanctity of domiciles, the confidentiality of correspondence and communications, and personal data,” article 24 of the 2014 constitution reads. Yet, this right remains under threat since the 2004 fundamental privacy law gives state authorities the power to process and collect personal data without the supervision of an independent body.
Besides, Tunisia’s data protection authority, the National Authority for the Protection of Personal Data (INPDP), remains powerless and lacks independence from government interference under the same law.
Tunisia made a major stride by adopting a new constitution. However, the long road to reform is far from over as the authorities should amend or abolish all repressive laws of the dictatorship era.
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