The general limitation clause in the new Tunisian Constitution:
Its origins, scope and challenges
Amna GUELLALI
Introduction
The new Tunisian Constitution, drafted over a period of more than two years by the National
Constituent Assembly (NCA), holds the promise of a new era, breaking away from the misguided ways
and wrongdoings of the dictatorship that was established in Tunisia for over 50 years. Born from
negotiations and a balance of power between the different political currents that make up Tunisia, the
Constitution is the legal text that provides the new foundations of power, of the relationship between
citizens and authorities, and that attempts to reconcile the Tunisian society's diverging views.
Rights and freedoms make up a specific chapter, which includes an entire catalogue of three
generations of human rights. However, the whole structure of the chapter is based more around one
crucial article, article 49, which considerably restricts the authorities' margin to undermine these rights.
Thus, the rationale behind this article is to no longer give the legislator free rein to butcher human rights
as he sees fit and accordingly to the political trend, as had been the case under the old regime. Any
restriction imposed on the rights stated in the Constitution must comply with four cumulative criteria:
firstly the criterion of legality, which demands the existence of a current legislation for each restriction;
the criterion of legitimacy, which gives the authorities the right to restrict freedom only for very specific
and legitimate purposes; the need for these restrictions in a civil and democratic State, and finally the
proportionality between the restrictions and the desired objective.
The tribulations that the article encountered in different versions of the constitution were also a
reflection of the legal and political turmoil that incessantly interfered in the drafting of the constitutional
text. Over the two years it took to draft, the Constitution was permeable to numerous external
influences. The text underwent transformations dictated by the balance of power between the different
parties and sectors of the Tunisian society. From one version to the next, drafting of the constitutional
text evolved with the successive crises, was subject of the pressure of civil society, who continuously
suggested and put forward new wordings for certain problematic articles, became the object of harsh,
relentless negotiations about words and expressions that were considered as the reflections of the
society's different views. Article 49 was one of these articles around which several points of view were
confronted. Unlike for other articles, the divide here was not based on ideological choices, but rather on
the technical question of how best to formulate the limitations. In the following paragraphs, we shall
first attempt to look back over the history of the drafting of this article. We shall then look into the
significance of the article in the constitution's overall structure, before then exploring the perspectives
of its future application.
I.
Limitations in the 1959 Constitution
Begun the day following the proclamation of independence, the drafting of the first Tunisian
Constitution took 3 years, from 1956 to 1959. It provides a list of rights and freedoms, but refers to the
law to define the limitations to their implementation. Thus article 8 provides that "The freedom of
opinion, expression, press, publication, assembly and association shall be guaranteed and exercised in
accordance with the conditions defined by the law". In the same way, confidentiality of correspondence,
the right of freedom of movement, and the right of ownership are also exercised on the same basis.
Meanwhile, the 1959 constitution, in addition to these specific limitations, also included a general
limitation clause, which established that "citizens shall exercise the fullness of their rights in the forms
and under the conditions provided for by the law. The exercise of these rights may only be limited by a
law enacted for the protection of the rights of others, for safeguarding public order, national defence,
economic development and social progress." It should be noted that this clause extends well beyond the
permissible restrictions provided for by international law. Indeed, article 19 of the International
Covenant on Civil and Political Rights stipulates that restrictions to the freedom of expression, for
instance, can only be legitimate on the basis of a law that is necessary for the protection of rights or of
the reputation of others, or for safeguarding national security, public order, health, or public morals1.
In the years following the adoption of the constitution, Freedom-destroying laws were successively
passed, draining the rights and freedoms of the 1959 constitution of their substance. Amongst the most
symbolic authoritarian drifts through law were the press code, the law on associations, and the law on
demonstrations. The law on associations2, promulgated on 7 November 1959, provided that the cause
and purpose of the association must not go against "good morals" or "public order" or other vague
concepts. The press code3, promulgated in 1975, was packed with articles on press offences. Offence to
the President of the Republic, broadcasting of false news likely to disturb public order, defamation, were
all liable to lead to a sentence ranging from 1 to 5 years in prison.
II. History of the article in the 2014 constitution
Drafting a general clause on rights and freedoms only began at a late stage of the drafting of the
constitution. In fact, all in all, there were four versions or drafts of the constitution, spread out over two
years. The first three, made public on 13 August 2012, 14 December 2012, and 22 April 2013, did not
include any reference to a general clause. Instead, there were specific limitations in several articles of
the chapter on rights and freedoms. Besides the wording of the freedom itself, the articles on freedom
of expression, assembly and association, as well as trade union rights, were accompanied by limitative
clauses. For instance, article 24 of the second version, of 14 December 2012, maintains freedom of
expression while specifying that it can only be limited "in virtue of a law protecting the rights of others,
their reputation, security or health". The article also excluded the possibility of exercising censorship on
the freedom of expression a priori .
According to several members of the commission for rights and freedoms, there was no discussion
on a general limitation clause in the first stages of the drafting works. Rather, the discussion was about
the limits to exercising certain rights, such as the freedom of expression, association and assembly, as
well as trade union rights. Certain members of the commission4, as well as of civil society5, started, from
1
International Covenant on Civil and Political Rights, 1966, http://ec.europa.eu/justice/policies/privacy/docs/un-art17_fr.pdf
Law no. 59-154 of 7 November 1959 pertaining to associations, http://www.legislation-securite.tn/fr/node/28527
3
Law no. 75-32 of 28 April 1975 promulgating the "press code", http://www.legislation-securite.tn/fr/node/28679
4
For example, Selma Mabrouk, member of the Commission for Rights and Freedoms, at the time a member of parliament of
the Ettakattol party.
2
the time of the first version, to put pressure on the commission to include a general clause and to
eliminate the specific limitations in some articles. But at first, discussion did not enable a deep
understanding of the stakes or the scope of such a clause. Some members opposed the clause, fearing
that such an article might open the way for an absolutist interpretation of the rights. They regarded
specific limitations to each article to be sufficient for providing an adequate framework to the exercise
of these rights6.
The general clause only appeared in the constitutional text from the draft of 1st June 2013,
which contained a new article, article 48. The article states that:
The law establishes the limitations to the rights and freedoms guaranteed by the constitution
and their methods of implementation, without detriment to their essence. The law protects the
rights of others, public order, national defence or public health. The jurisdictional bodies shall
protect these rights and freedoms from any violation.
This late insertion occurred after a first turn in the drafting of the constitution. In fact, the
political parties, on the initiative of the Presidency of the Republic, met in May 2013 to find a
compromise around the controversial points of the constitution7. These matters related, at the same
time, to the chapter on rights and freedoms, the balance between the references to Islam and
enshrining a civil State that guarantees universal human rights, as well as the division of prerogatives
between the head of government and the President of the Republic. At the end of these meetings, the
parties signed a compromise agreement to adopt a number of points. Amongst them were the
introduction of a new article in the constitution with a general limitation clause and the withdrawal of
specific restrictions in the articles of the chapter on rights and freedoms. This wording was then
reproduced in the 1st June constitutional text, after going through the constitutional commission.
In the final version of the constitution, the wording of the article was altered to integrate two
notions that had not featured in the 1st June version: they are the notions of necessity and
proportionality, essential to a full and well-defined limitation system that complies with international
law. This is how article 49 of the final version of the Constitution, as adopted on 26 January 2014, came
to read as follows:
The limitations that can be imposed on the exercise of the rights and freedoms guaranteed in tjis
Constitution will be established by law, without compromising their essence. Any such
limitations can only be put in place for reasons necessary to a civil and democratic State and
with the aim of protecting the rights of others, or based on the requirements of public order,
national defence, public health or public morals, and providing there is proportionality between
these restrictions and the objective sought.
Judicial authorities ensure that rights and freedoms are protected from all violation.
5
For example, see the HRW press release of 22 January 2013, http://www.hrw.org/news/2013/01/22/letter-tunisian-nationalconstituent-assembly-draft-constitution ; Conference report, Tunisian Association of Constitutional Law, http://www.fichierpdf.fr/2013/06/03/projet/preview/page/1/
6
Interview of the author with Farida Laabidi, president of the National Constituent Assembly's Commission for Rights and
Freedoms.
7
See Seif Soudani article, "La Polit-Revue: Playoffs islamistes et simulacres de dialogues nationaux" (Islamist playoffs and sham
national dialogues), Nawaat, 19 May 2013, http://nawaat.org/portail/2013/05/19/la-polit-revue-playoffs-islamistes-etsimulacres-de-dialogues-nationaux/
The final wording of the general limitations clause, as adopted in the constitution, was also born of
dialogue and debates by what has been called the "consensus commission". This commission, created in
July 2013 to bring together the points of view of different parliamentary groups on matters that
remained controversial in the constitution, was suspended in the aftermath of the assassination of
deputy Mohamed Brahmi on 25 July 2013, member of the left-wing coalition "The popular front".
Opposition deputies then decided to withdraw from the National Constituent Assembly (NCA), and a sitin was organised by different opposition tendencies, who demanded the resignation of the
governmental coalition in power since 23 October and the establishment of a technocratic government,
as well as the acceleration of the constitutional drafting process. Several months of political and
institutional crisis followed, during which time the power struggle between the opposition and the
troika in power was at its height, with sit-ins and huge demonstrations opposing supporters of both
groups. Mustapha Ben Jaafar, president of the NCA, decided to temporarily suspend the work of the
Assembly. In the month of December, the National Dialogue, a platform for dialogue between all the
political parties, initiated under the auspices of four civil society organisations, including the powerful
Tunisian General Labour Union (UGTT), reached a final agreement which entailed the replacement of
the troika government by a technocratic government, the resumption of the NCA's work, as well as a
roadmap for the adoption of the constitution and the organisation of legislative and presidential
elections. The Consensus Commission then resumed its work on the basis of agreements signed in the
National Dialogue. It revisited the articles and points of contention one by one, some of which remained
in suspense up until the day before the vote on the constitution, article by article. The constituents
quickly agreed on the wording of article 48, to which the criteria of necessity and proportionality were
introduced, having been requested by civil society for a long time.
III. Significance of the article in the overall structure of the constitution
The final version, by virtue of its complexity and richness, allows us to measure the transformations
of the concept of limitations itself. This version constitutes a leap forward, by incorporating the notions
of necessity in a "civil and democratic state" and the notion of proportionality, both essential to the true
protection of rights and freedoms. The Tunisian version of the limitations clause, incorporated in the
final draft under article 49, also includes several distinctive features in relation to international law and
to other comparable constitutions in countries in democratic transition. Indeed, according to
international standards on human rights, the principle of necessity is interpreted according to the
"requirements of a democratic society". According to the Siracusa Principles, devised by eminent
experts and considered to set out the condition of international standards on the matter, the expression
"in a democratic society" must be interpreted as introducing an additional condition. "Although there is
no sole model of democratic society, a society can be considered as democratic when it recognises,
respects and protects the human rights set out in the United Nations Charter and in the Universal
Declaration of Human Rights."8
Article 49 talks about a democratic State but not about a democratic society. According to a
member of the Consensus Committee, this specific point was discussed at length, finally leading to the
replacement of the term "society" by "State", a less ambiguous and better defined term, with a judicial
rather that sociological definition9. Another defining feature was the addition of the adjective "civil" to
8
st
Siracusa principles, presented at the United Nations Commission on Human Rights, 41 session, 28 September 1984,
file:///C:/Users/User/Documents/HRW%20Dossier/Projects%20and%20action%20plan/Constitution%20drafting/48abd56bd%2
0(2).pdf
9
Interview of the author with Farida Laabidi, member of the consensus commission and president of the Commission for rights
and freedoms.
the criterion of necessity. This adjective plays quite an important role in the overall meaning of the
article. The "civil" character of the State is indeed one of the essential pivot points of the constitutional
text, introduced only after a considerable struggle between the currents know as Islamist and the
"modernist" currents. The civility of the State refers to a system rooted in positive law, in which the
source of legal order derives from the will of the people and not from divine sources. This concept of a
civil State is designed to be a counterweight to the religious referents that are scattered throughout the
text. It appears in the preamble, where the constituents maintain that they lay "the foundations for a
democratic and participative republican regime, in the context of a civil State where the sovereignty of
the people is exercised, by way of political alternation of power, through free elections". It can also be
found in article 2 of the constitution, which states that "Tunisia is a civil State, founded on citizenship,
the will of the people, and the supremacy of law". Thus, if we want to lay the grounds for an
interpretation of the text, we shall say that any limitation must be devised in the context of these
concepts: a democratic State, by definition, is a State that respects pluralism, that does not impose any
univocal vision of the society, and that strives to respect the rights and freedoms of all citizens, on an
equal footing, without discrimination and without arbitrariness. From another perspective, a civil State
lays the foundations for a secular law system in which it is the sovereignty of the people that is the
source of all legitimacy rather than religious referent.
The third observation that comes to mind upon reading the article is that it relates to all the rights
and freedoms guaranteed in this constitution, in other words, its scope is broader than the specific
chapter on these rights and encompasses other chapters, such as the rights of defence in Chapter V
relating to judicial power. Article 49 must also be read in light of the other articles of the constitution. In
fact, article 146 stipulates that "the provisions of this Constitution shall be understood and interpreted
together, as an indivisible whole". What happens when contradictory interpretations of the constitution
emerge? Could article 49 play a conciliatory part? The Constitutional Court, whose mandate is to control
the constitutionality of the laws, could surely make the article the cornerstone of its reasoning. It can be
noted that certain problematic articles of the constitution are indeed those which bear an ambiguity
liable to give them different meanings. It is the case, for instance, for article 6 of the Constitution, one of
the most debated, which states that:
The State is the guardian of religion. It guarantees freedom of conscience and belief, the free
exercise of religious practices and the neutrality of mosques and places of worship from all
partisan instrumentalisation. The State undertakes to disseminate the values of moderation and
tolerance and the protection of what is sacred, and the prohibition of all violations thereof. It
also undertakes to fight against calls for Takfir [allegations of apostasy] and the incitement of
violence and hatred.
These three sentences, loaded with meanings and referents, are also full of contradictions and
vague wording, which opens the door to different interpretations, that could go up to the most
freedom-hostile in the name of violation of what is sacred or of the prohibition of incitement to hatred.
We can assess to what extent article 49 could help to find the point of balance required by this article,
amongst others. Any legislation or governmental action that aims to protect what is sacred should thus
avoid being detrimental to the freedom of expression, aside from the limits of article 49.
IV. Enforcement of the article and future challenges
Article 49 is the cornerstone of rights and freedoms in Tunisia. Certain rights are absolute and can
not be affected by any limitation. Such is the case, for instance, for the right to physical integrity, which
prohibits torture under any circumstances. But other rights are necessarily subject to restrictions, given
the need to regulate the field of social and political interactions, as well as the need to regulate peaceful
coexistence, to establish each individual's free space and its interaction with the interests of the national
and human community. The article's objective is two-fold: on the one hand, it allows for a certain
flexibility in the implementation of the rights; on the other hand, it seeks to minimise any risk of abuse
and prevents the restrictions from being transformed into tools to rid the right of its meaning and its
essence.
The application of Article 49 is mandatory for the legislative, judicial or executive power. It should
serve as a means for controlling the laws and their enforcement.
Regarding the legislative power's control, we know that the new constitution has granted Tunisia
with a Constitutional Court, responsible for controlling the constitutionality of laws, both upstream and
downstream. Made up of twelve members, the Constitutional Court can be seized either prior to the
laws being adopted, by the President of the Republic or by thirty members of parliament, or by the
courts where an exception of unconstitutionality is raised upon the request of one of the parties to a
dispute10. Until the Constitutional Court is established, which is to take place a maximum of one year
from the legislative elections11, a provisional body responsible for regulating constitutionality has been
set up12. The constitution rules that no "court is authorised to regulate the constitutionality of laws", as
this function is attributed exclusively to the provisional body until the Constitutional Court is
established.
However, even if the courts are banned from controlling the constitutionality of laws, they are
obliged to interpret them in light of the new Constitution, which is applicable as of its entry into force
and constitutes the highest level in the hierarchy of norms. Article 49 is crucial in this respect. It can
allow judges to rule on the applicability of certain very controversial and repressive articles of the penal
code. Since the start of 2012, the judicial authorities have prosecuted many journalists, bloggers, artists
and intellectuals for having peacefully made use of their right of expression, leaning on provisions of the
penal code that punish acts such as "defamation", "profanities towards agents of the State", and
"infringements of public order", which are all liable to prison sentences. These articles of the penal code
were part of the repressive judicial arsenal employed by Ben Ali's government to punish dissidents and
to silence human rights activists. The Constituent Assembly took no initiative to abolish or suspend
these laws and no court has declared them incompatible with international human rights standards. It is
particularly the case of article 125 of the Tunisian penal code, which gives a maximum sentence of one
year of imprisonment for any person who insults a government official in performing duty. Moreover,
article 247 calls for a sentence of up to six months of imprisonment for defamation against individuals or
institutions and article 226 bis prohibits actions or speech that are detrimental to public morals or
decency. Article 121 ter sentences any individual who distributes information with the purpose of
damaging public order or good morals to five years imprisonment. Jaber Mejri, a blogger from Mahdia,
was sentenced to seven years in prison on the basis of this article, in April 2012, for having published
cartoons of the prophet Muhammad on his Facebook page13. Artists, bloggers, and journalists14, have
10
Tunisian Constitution, 27 January 2014, article 120.
Tunisian Constitution, 27 January 2014, article 148 paragraph 5.
12
Organic law no. 2014-14 of 18 April 2014 relating to the provisional authority of control of constitutionality of draft-laws
13
See HRW press release on the matter http://www.hrw.org/news/2012/04/06/tunisia-seven-years-jail-mocking-islam
14
For example, see the Zied el Hani affair, a journalist prosecuted for defamation against a public officer,
http://www.hrw.org/news/2013/09/13/tunisia-spate-prosecutions-free-speech
11
also been criminally prosecuted on the basis of these articles, which were automatically applied to them
under the pretext that they are contained in the law and that the judge is thus obliged to enforce them.
Yet the use of article 49 of the constitution could, fittingly, introduce the obligation for the judge to
interpret such articles and not to apply them when the criteria decreed by article 49, namely legality,
legitimacy, necessity and proportionality are not all met. But it seems that Tunisian justice struggles to
integrate this article into judicial reasoning. This was reflected in a matter before the military court of
first instance, which convicted a police union leader for defamation of the army. He had declared, during
a television broadcast, that the Tunisian Minister of Defence had, one week earlier, been the victim of
an attack by an armed group, killing sixteen Tunisian soldiers. This information had been issued by the
intelligence services, along with the date and details of the plan of attack but no steps had been taken to
ensure the safety of the soldiers. The military judges, leaning on article 91 of the code of military justice,
that penalises insult to the army, convicted the trade unionist in absentia to two years of imprisonment.
And yet, military judges, just like civil judges, are required to apply the constitution, which dictates
scrupulous compliance with the freedom of expression, provided for in article 31 of the new
Constitution. Disregarding the new constitution, particularly this crucial article for the protection of
rights, would be seriously called into question and rid the constitution of its meaning.