Day 4 of constitutional debate: Tunisia Votes in Freedoms and Liberties

Following a busy evening session that ended at 10 p.m. on Sunday night, the National Constituent Assembly plenary resumed on Monday at 11.30 a.m. after morning meetings of the Consensus Committee and the ISIE nominations committee. First up in the discussions was a new request – a petition by a number of deputies to reopen article 12, which had already been adopted the previous day.

Statistics for Day 4:

25%: of the constitution adopted so far

17: Number of articles adopted

171: Average number of deputies voting per article

165: Average number of yes votes per article – that is on average 96% of deputies present, and 76% of total number of deputies.

3.4: Average number of NO votes per article – that is on average 2% of deputies present, and 1.6% of total number of deputies

Following the reopening of article 6 on Sunday night to add a new amendment prohibiting calls to violence and calling others “apostates”, a number of deputies insisted article 12 should also be reopened, and signed and submitted a petition, using Article 93 of the Internal Regulations, to request that article 12 be amended to include a duty for the state to institute positive discrimination in favour of deprived regions, so that the amended article would read thus, “The state shall seek to achieve social justice, sustainable development, and balance between regions, and to make good use of national resources based on national indicators and the principle of positive discrimination”. The same amendment had been defeated the previous day.

The amendment, which had been defended by a number of deputies the previous day who recalled that regional equality was at the heart of the principles of the revolution, was passed and the amended article approved with 150 for, 3 against and 11 abstentions.

Discussion then moved onto Chapter 2 of the Constitution, Freedoms and Liberties. Progress was remarkably swift, a result of the success of the discussions within the Consensus Committee in reaching agreement on a number of points of previous contention. Most of the articles were adopted unanimously, the only contentious article being article 21 on the right to life. Two proposed amendments sought to remove the possibility for the use of the death penalty, but failed to pass.

Another issue that provoked some debate was the right to strike – with a proposed amendment emphasizing that the right to strike does not cancel out the right to work and the obligations on the state to maintain minimum services in some areas. Ahmed Smiai, of Ennahdha Party, argued that strikes (estimated to number over 35,000 since 2011) had crippled the country since the revolution. The amendment was defeated but with a close vote – 77 for, 26 Abstentions and 73 against.

A number of articles were passed unanimously:

A number of articles were passed unanimously:

• Article 22 (prohibition against torture)
• Article 23 (right to privacy + freedom of movement)
• Article 24 (banning stripping of nationality, exile and extradition)
• Article 25 (right to political asylum)
• Article 26 (presumption of innocence and right to fair trial)
• Article 28 (detention)
• Article 29 (rights of prisoners)
• Article 30 (freedom of media, opinion, expression)
• Article 34 (freedom of association)
• Article 36 (freedom of assembly and protest)

No deputy voted against the above articles. In the case of Articles 22, 24, 25, 26, 29, there were also no abstentions.

Below is a translation of the articles and how they were voted on:

Article 20

Draft: “All citizens, male and female alike, have equal rights and duties, and are equal before the law with no discrimination. The state guarantees to citizens individual and collective rights, and provides them with the conditions to lead a dignified life.”

The original draft of the article was adopted with 159 for, 7 against and 3 abstentions.

Article 21

Draft: “The right to life is sacred and shall not be prejudiced except in exceptional cases regulated by law.”

A proposed amendment to prohibit the death penalty was not passed, with 102 against, 50 for, 15 abstentions.

The original draft of article 21 was adopted with 135 for, 11 abstentions and 28 against. This was by far the highest number of “against” votes in today’s votes, as most other articles were either unanimously adopted or rejected by a small number of deputies (up to 9). This was the only article that did not achieve 2/3 majority on Monday.

Article 22

Draft: “The state shall protect human dignity and the sanctity of the body and shall prohibit all types of psychological and physical torture. Crimes of torture are imprescriptible [not subject to a limitation period].”

The original draft of article 22 was adopted with 173 for, 0 abstentions, 0 against.

Article 23

Draft: “The state shall protect the right to a private life and the sanctity of domiciles, and the confidentiality of correspondence and communications, and personal information. Every citizen shall have the right to choose a place of residence and to free movement within the country, and shall have the right to leave the country. These rights and freedoms shall not be prejudiced unless under circumstances provided for by law and a judicial order, except in cases of flagrant delicto.”

An amendment proposed by the Consensus Committee sought to remove “These rights and freedoms shall not be prejudiced unless under circumstances provided for by law and a judicial order, except in cases of flagrant delicto” and was passed with 153 for, 1 abstention and 0 against.

The amended article 23 was adopted with 157 for, 1 abstention and 0 against.

The final version of article 23 as adopted reads thus: “The state shall protect the right to a private life and the sanctity of domiciles, and the confidentiality of correspondence and communications, and personal information. Every citizen shall have the right to choose a place of residence and to free movement within the country, and shall have the right to leave the country.”

Article 24

Draft: “No citizen shall be stripped of his or her nationality, exiled, extradited or prevented from returning to his or her country.”

The original draft of article 24 was adopted with 168 for, 0 abstentions, 0 against.

Article 25

Draft: “The right to political asylum shall be guaranteed as prescribed by law. Surrendering political refugees shall be prohibited.”

The original draft of article 25 was adopted: 165 for, 0 abstentions, 0 against.

Article 26

Draft: “A defendant shall be presumed innocent until proven guilty in a free trial where he or she is granted all guarantees of the right of defense throughout all phases of prosecution and trial.”

The original draft of article 26 was adopted with 165 for, 0 abstentions, 0 against.

Article 27

Draft: “Punishments shall be individual and shall not be imposed unless by virtue of a legal provision issued prior to the occurrence of the punishable act, except in the case of issuance of a more favorable provision for the defendant.”

The original draft of article 27 was adopted: 157 for, 2 abstentions, 1 against.

Article 28

Draft: “No person may be arrested or detained unless in flagrant delicto or by virtue of a judicial order. The person placed under arrest shall be immediately informed of his or her rights and the relevant charges. The person may request the services of a lawyer. The period of arrest and detention shall be defined by law.”

The original draft of article 28 was adopted with 166 for, 1 abstention, 0 against.

Article 29

Draft: “Every prisoner shall have the right to humane treatment that preserves his or her dignity. In imposing a punishment that deprives an individual of freedom, the state shall take into account the interests of the family and shall guarantee the rehabilitation and re-integration of the prisoner into society.”
The original draft of article 29 was adopted with 176 for, 0 abstention, 0 against.

Article 30

Draft: “Freedom of opinion, thought, expression, media and publication shall be guaranteed. These freedoms shall not be subject to prior censorship. Freedom of expression, media, and publication may not be restricted unless by virtue of a law protecting the rights, reputation, safety, and health of others.”

An amendment proposed by the Consensus Committee to remove “Freedom of expression, media, and publication may not be restricted unless by virtue of a law protecting the rights, reputation, safety, and health of others” was passed.

The amended version of article 30 was adopted with 173 for, 9 abstentions and 0 against.

The final version of article 30 as adopted reads thus: ““Freedom of opinion, thought, expression, media and publication shall be guaranteed. These freedoms shall not be subject to prior censorship.”

Article 31

Draft: “The right to access to information shall be guaranteed within the limitations of national security and the rights guaranteed within the constitution.”

An amendment proposed by the Consensus Committee to amend the article to “the state shall guarantee the right to communication and access to information” was adopted with 170 for, 4 abstentions and 2 against,

The amended version of Article 31 was adopted with 171 for, 8 abstentions, 1 against.

Article 32
Draft: “Academic freedoms and freedom of scientific research shall be guaranteed. The state shall seek to provide the necessary resources to develop scientific and technological research.”

The original draft of article 32 was adopted with 171 for, 4 abstentions, 6 against.

Article 33

Draft: “The rights to election, voting, and candidacy shall be guaranteed, in accordance with the law.”

A proposed amendment to add “The state seeks to guarantee women’s representation in elected councils” was adopted by 125 for, 22 abstentions, 3 against.

The amended version of article 33 was adopted with 166 for, 3 abstentions, 9 against.

The final version adopted thus reads: “The rights to election, voting, and candidacy shall be guaranteed, in accordance with the law. The state seeks to guarantee women’s representation in elected councils.”

Article 34

Draft: “The freedom to establish political parties, trade unions, and associations shall be guaranteed. The law shall regulate the procedures for establishing political parties, trade unions and associations without prejudice to the essence of this freedom. Political parties, trade unions and associations must abide, in their internal charters and activities, by the constitution, the law, financial transparency and the rejection of violence.”

A consensual amendment to remove “The law shall regulate the procedures of establishing political parties, syndicates, and associations without prejudice to the essence of this freedom” was passed with 165 for, 6 abstentions and 2 against.

The amended version of article 34 was adopted with 173 for, 4 abstentions, 0 against.

The final version adopted thus reads: “The freedom to establish political parties, trade unions, and associations shall be guaranteed. Political parties, trade unions and associations must abide, in their internal charters and activities, by the constitution, the law, financial transparency and the rejection of violence.”

Article 35

Draft: “The right to join and form trade unions is guaranteed including the right to strike.”

The amendment proposing to add “This right does not apply to the military institution” was adopted then changed to “This right does not apply to the national army”, the latter being adopted with 162 for, 8 abstentions, 2 against.

The amended version of article 35 was adopted with 156 for, 6 abstentions, 6 against.

The final version adopted thus reads: “The right to join and form trade unions is guaranteed including the right to strike. This right does not apply to the national army.”

Article 36

Draft: “The right to peaceful assembly and demonstration shall be guaranteed. This right is to be exercised according to procedures regulated by the law, without undermining the essence of this freedom.”

A “consensual amendment” to remove “This right is to be exercised according to procedures regulated by the law, without undermining the essence of this freedom” was passed with 164 for, 7 abstentions, 2 against.

The amended version of article 36 was adopted with 173 for, 4 abstentions, 0 against.

The final version adopted thus reads: “The right to peaceful assembly and demonstration shall be guaranteed.”