Terrorism Law: On the Back Burner Once Again?

After months of discussion and close examination in the National Constituent Assembly, media and public discourse, Tunisia’s draft organic law to combat terrorism and money laundering has been put on hold. The Constituent Assembly’s bureau announced at the end of September that in view of the request by the Presidency and government to prioritise urgent legislation on economic matters, discussions on the draft terrorism law would be suspended until 27 October, after the legislative elections.

The postponement is a welcome development given the complexity of the draft law and its far-reaching impact on many areas of citizens’ lives including the exercise of individual and collective liberties such as freedom of expression and association, educational and cultural activities, and economic activity. Many Assembly members will be preoccupied in the coming weeks in campaigning for the legislative elections rather than negotiating the minutiae of a counter-terrorism legislative framework that is able to guarantee the security of citizens and the state while respecting human rights. In addition, many Assembly members had failed to turn up to many of the debates on the draft law, leading to suspension of voting due to a lack of quorum.

The draft law, presented as a proposal by the government in January 2014, comes at a time of heightened security threats in Tunisia. The country has witnessed a series of armed attacks on security forces and the army, including an attack on the Interior Minister’s home in July of this year. These attacks are being judicially dealt with under the 2003 anti-terrorism law issued in the Ben Ali era, which remains in force. The 2003 law has been widely criticised for violating human rights and the basic requirements of a fair trial, based on a very broad and vague definition of terrorism which includes “disturbing public order”, enabling the prosecution of peaceful protests and gatherings. The law was used by the Ben Ali regime to prosecute over 3000 individuals, including its political opponents, prompting the former special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism Martin Scheinin to label it “a tool of oppression against any form of political dissent.”

All political actors in Tunisia agree that the weaknesses of the 2003 law and its status as a symbol for the worst excesses of the former regime make drafting a new counter-terrorism law an urgent priority. The draft law came as the product of a long drafting process that involved consultations with human rights organisations and civil society actors, including the Tunisian League for Human Rights, the Lawyers’ Union, the Judges’ Association and Human Rights Watch, and the government held a number of closed hearings with the Constituent Assembly to discuss various aspects of the law.

However, this has not made it any easier to reach agreement on a new law. The draft law proposed by the government seeks to introduce a new more precise definition of terrorism, reframe the list of terrorist acts, and provide tools to prosecutors and the security services to combat terrorism while maintaining respect for human rights and the right to a fair trial. However, the law has met with criticism from some Assembly members and human rights organisations, primarily focused on the following aspects:

1. Definition of terrorism

The draft law defines terrorism as an act that “First: kills a person or several people, or inflicts considerable physical damage; Second: causes damages at facilities of diplomatic and consular missions, and international organizations; Third: does substantial damage to the environment, putting residents’ lives and health at risk; Fourth: Harms public or private property, vital resources and infrastructures, transportation means, communication networks, information and computer systems or public facilities; or aims by its nature and context to terrorize the population or to force a state or an international organization to carry out or refrain from carrying out an action.” (Translation courtesy of Human Rights Watch)

This definition vastly improves on the 2003 definition, by excluding the vague act of “disturbing the public order, peace or international security”. However, it has been criticised for including property damage and harm to public services and infrastructures, which leaves open the possibility of prosecutions against, for instance, peaceful protests that block public roads, causing delays to transport or harm to public facilities.

There is wide divergence among national anti-terrorism laws on whether property damage should be included within the acts that constitute terrorism. The UK’s anti-terrorism law, for example, includes damage to property. This goes against the proposed definition of terrorism put forward by the UN in Security Council resolution 1566. A possible compromise is to include as terrorist acts only that property damage that has serious consequences for human life or safety. For instance, Canada and New Zealand’s terrorism laws include, as terrorist acts, property damage only where such damage is likely to cause death or serious bodily injury, or a serious risk to the health or safety of the public.

The draft law includes a list of terrorist acts, including membership of, or support for, a terrorist group. The draft represents a vast improvement on corresponding provisions in the 2003 law, which criminalise membership of or support for “an organisation or entity, whatever its form and the number of its members, that has, even if coincidentally or incidentally, used terrorism as a means of action in the realisation of its objectives”, without requiring that the accused have been aware of the terrorist nature of the organisation.

2. Vagueness of “glorification of terrorism” offence

The draft law contains an article criminalising incitement to terrorism and a separate article criminalising the praising of terrorism.

Article 5 states that “any person publicly calling for the perpetration of acts of terrorism when these calls, by nature or due to context, may constitute real execution threats, shall be considered a perpetrator of acts of terrorism and shall be sentenced to half the sanctions provided for in this type of crimes.” (Translation courtesy of Human Rights Watch)

This article is largely in line with international human rights norms, which require that incitement be criminalised only where the incitement creates a real threat of a terrorist act being committed.

Article 28 of the draft law makes it a criminal offence for anyone to “publicly and in any way [praise] a terrorist crime, the perpetrator of a terrorist crime, an organization or an alliance connected with terrorist crimes, their members or their activities.” (Translation courtesy of Human Rights Watch). Such acts are punishable by prison terms of one to five years and a 5,000 to 10,000 dinar fine.

This article raises concerns regarding restrictions of freedom of expression, due to the lack of a requirement that there be any intention to incite terrorism or that such praise actually result in an act of terrorism or makes such acts more likely. Furthermore, “praise” is a vague term that can be applied to a broad range of expression. For example, could the lawyer of a terrorism suspect who praises his or her client’s character or conduct be deemed to be praising terrorism? An incident earlier this year already demonstrates the difficulty of distinguishing between legitimate exercise of freedom of expression and of the press, and praise of terrorism – a private television channel, Attounsiyya, aired an interview with the father a terrorism suspect following his son’s death. The interview provoked intense criticism for “humanising” and “praising” terrorists, and the Higher Commission for Audiovisual Media banned the programme from from being re-broadcast. Human Rights Watch has also raised the example of human rights campaigners who have criticised the conduct and alleged human rights abuses of security services in Tunisia during anti-terrorism operations, and who have as a result been accused by members of security services of ‘siding with the terrorists’ and supporting terrorism.

3. Inadequate protection for right to a fair trial and right to privacy

The draft law has been criticised for several provisions which could undermine the right to a fair trial, in particular provisions allowing for closed hearings and anonymous witnesses and requirements that lawyers must reveal any information they have where “informing the relevant authorities about could prevent the commission of terrorist acts in the future”.

Right to Privacy

The draft law gives investigating judges and prosecutors powers to request, via a written order, surveillance of a person’s personal communications for a period of no more than four months renewable once for the same period. While this may be necessary in investigations, it is important to specify more clearly the circumstances in which such powers can be exercised, and to set clear supervisory mechanisms for independent effective oversight of surveillance.

Conclusion

Overall, the draft law represents a significant improvement on the existing 2003 law. It seeks to introduce a new Tunisian Commission to Combat Terrorism which would bring together representatives of ministries and allow greater coordination and oversight of counter-terrorism efforts as well as sustained engagement and consultation with civil society. This more consultative approach can be seen in the drafting of the law itself and the engagement of many professional and human rights associations. In addition, the scrutiny to which the law was subjected in the Constituent Assembly illustrates the arrival of a new actor in the field of security governance – the legislative assembly, which is asserting its oversight of all policy domains including this highly sensitive one that was formerly the preserve of the executive. These developments point to a qualitative shift in security governance in Tunisia and the new emerging dynamic in which government, state institutions, legislature and civil society each play a role in managing the public interest. However, it raises the issue of reform of security forces, whose capabilities, techniques and strategies are in need of an overhaul to reflect a new context of novel security challenges and altered public expectations.