Executive summary
This policy brief will examine the provisions of the draft law on the “repression of attacks against armed forces”, discuss its pertinence, and underline its limitations. It will demonstrate that whilst legislative reform processes are important, a parallel institutional and structural reform must be undertaken to ensure striking the right balance between protecting the armed forces and the full respect of human rights.
Introduction
Following the 2011 uprisings, Tunisia has witnessed a deterioration of its security. The country was hit by a series of lethal terrorist attacks over three consecutive years from 2013 to 2015. The brutal attacks killed dozens of police forces, soldiers, and tourists. As the frequency and brutality of attacks against the security forces have dramatically increased[1], the general context became highly volatile. However, a legislative expansion took place at the same time as the country witnessed an increasing sectoral demand where almost every public sector pressed for an increase in wages, benefits, or structural reforms.
In response to the repeated attacks on the security forces, the Ministry of Interior proposed a draft law which, as its name indicates, aims to repress of attacks against the armed forces. Instead it has sparked intense and heated debates.
The historical and legal context for the draft law
On April 8, 2015, the Tunisian government approved a proposed bill on “Restraining the aggression against the Armed Forces” and submitted it to the Assembly of the Representatives of the People (ARP) on the 13th of April 2015.
In July and November 2017, the Parliamentarian General Legislation Committee held a series of meetings to discuss the proposed bill[2]. These meetings, however, were suspended after the Minister of the Interior pledged to form a committee that would include representatives of all the involved stakeholders and to prepare a new draft.
The General Legislation Committee started to examine the proposed bill following the referral by the Speaker of the House of Representatives, N°80 on February 27, 2020, relating to an urgent request to examine the aforementioned draft Law. The review of the draft law was deemed urgent because it was issued by the Prime Minister. It is worth noting that no new formulation of the draft law had been submitted.
Consequently, the General Legislation Committee held a series of hearings with the different relevant stakeholders[3]. The hearings revealed conflicted opinions with some demanding its withdrawal and others calling for its amendment.
The Minister of Interior formed a tripartite commission made of the Ministry of Interior, the Ministry of Justice, and the Ministry of Defense to review and update the bill in accordance with national and international standards. The updated bill[4], however, remained problematic, requiring further amendments from legislators.
The General Legislation Committee has reviewed the amended bill, updated its provisions, and has recommended its adoption at the General Assembly[5].
According to this updated version, the title of the bill was changed to “an Organic Law on the protection of the internal security forces and customs“. Furthermore, the new bill will take the form of an Organic Law (higher than ordinary Laws) but it has excluded the armed forces since it already has a special status. Lastly, the committee has also deleted several articles.
The bill constitutes an application of Tunisia’s international commitment, including the United Nations Human Rights Office’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Havana, Cuba 1990)[6] that stipulates that “Whereas the work of Law enforcement officials is a social service of great importance and there is, therefore, a need to maintain and, whenever necessary, to improve the working conditions and status of these officials”.
A bill that contradicts International standards, the Tunisian Constitution, and national legislation
It is significant that representatives of the police unions rejected the formulation approved by the General Legislation Committee[7]. A close look into the bill reveals its many discrepancies. It contradicts the Constitution; especially article 49[8] as well as articles 21, 22, 23, 31, 32, and 37[9]. Additionally, the proposed bill is irrational because it prioritizes the protection of armed forces over unarmed civilians and it contradicts two fundamental principles:
- Clarity in Criminal Provisions: the bill included ambiguous terminology, in penal matters requiring precision, and governed by the principle of narrow interpretation (examples are Public Security secrets, contempt…)
- Proportionality: the bill provides for disproportionate sanctions (example: Article 13 “whoever deliberately burns or demolishes a headquarters or a weapons’ or ammunitions’ store, or burns or destroys a vehicle of the Armed Forces, with the intent to harm public Security, shall be punished with imprisonment for the rest of his/her life”. Additionally, all penalties involve deprivation of liberty. Besides, the text excludes the application of article 53 of the penal code, which gives courts room for diligence to reduce the penalty according to the circumstances (Article 9).
Furthermore, the bill contradicts provisions of the Law n° 69-4 of January 24, 1969, regulating public meetings, processions, parades, demonstrations, and gatherings, concerning the gradual escalation of use-of-force.
The proposed bill extends protection to armed forces personnel “spouses, parents, children, and those legally under their guardianship”[10] which constitutes further undermining of rights and freedoms.
The bill grants the Armed Forces an immunity that exceeds reasonable limits (Article 18[11]), which gives security forces latitude to use force without fear of punishment.
Therefore, the bill contradicts the national commitment to uphold the right to access information (examples are included in Chapter Two titled “Assaulting National Security Secrets”) and restricts journalists’ work. Furthermore, it contradicts The Johannesburg Principles on National Security, Freedom of Expression, and Access to Information which states that “No person may be punished on National Security grounds for disclosure of information if (1) the disclosure does not actually harm and is not likely to harm a legitimate National Security interest, or (2) the public interest in knowing the information outweighs the harm from disclosure“[12].
The bill contradicts the national commitment to protect whistleblowers and perpetuates the culture of secrecy within security institutions, as the former might become liable for revealing a national security secret. On the other hand, human rights advocates fear that the interpretation and application of Articles 5 and 6 of the bill would be misused to imprison whistle-blowers or journalists for disclosing or publishing “national security secrets”, a very broadly defined terminology that includes “any information, data, and documents related to national security”.
Moreover, Tunisia deposited its instrument of accession of the Rome Statute[13] on June 24, 2011, according to which Tunisia pledges to fight and end Impunity.
The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Havana, Cuba 1990) include limitations and preconditions to the Use of Force by Law enforcement. For instance, it provides that “in any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”. It also highlights that “exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles”.
Is an additional text necessary?
The proposed bill stated that it aims to “protect the Armed Forces in accordance with the requirements of International Conventions considering the importance of the role entrusted to them to ensure Security and Public Order, the protection of individuals, Institutions and property as well as Law enforcement”[14].
While the intention behind the bill is to give armed forces leeway to make split-second and hasty decisions to protect themselves and bystanders, and police unions claim that the bill is essential to their safety, critics argue that these legal standards give Law enforcement a license to kill innocent or unarmed people.
Several democratic countries provided for provisions within their penal legislation that protects public officials, especially the armed forces, their headquarters, and equipment.
It is highly recommended to review and reassess the provisions included in the penal code and the Code of the Military Pleadings and Sanctions because they are insufficient at ensuring the necessary protection for the Armed Forces and the personal safety of their agents.
While the rationale behind the text was to ‘protect’ the armed forces, the current formulation makes it a repressive text more than a protective one. The text fails to provide compensation and benefits for work accidents and terrorist attacks. In Tunisia’s Universal Periodic Review in 2017, the High Commissioner highlighted the need for Tunisia to strengthen freedom of expression, including freedom of the press and the right of access to information as well as address impunity for violations[15].
The Armed Forces: A protection structure in need of protection
Tunisia already has an appropriate legal arsenal, whether related to countering terrorism, state employees, or specific texts related to different types and categories of both security and armed forces. More specifically, Article 91 of the Military Justice Code provides for the appropriate sanctions in case of insults, attacks on the dignity, reputation, morale of the armed forces. Therefore, issuing this text will only lead to further legislative inflation.
Reforming the Tunisian penal code seems more appropriate at this stage, rather than issuing a new text and contributing to the above-mentioned legislative inflation. Furthermore, adopting the text in its current formulation might further exacerbate tensions between civilians and the armed forces, leading to their isolation during a highly fragile societal context seeing that the interpretation and application of the legal bill allows for wide powers to security forces.
Conclusion:
The protection of the armed forces, Tunisia’s first line of defense, is necessary and legitimate. However, such protection shall only be realized by improving police-community relations, building the population’s trust in the police and other security forces. This will require also providing security forces with the necessary capabilities, through coordination, better training, and equipment.
Since the 2011 uprisings, Tunisia’s SSR processes focused only on one of the core objectives: ensuring effectiveness “through a wide range of activities including skills training for Security and Justice officials, provision of equipment and infrastructure, undertaking reforms to enhance the organizational and managerial capacity…”[16]. Yet, Accountability, the second core objective of SSR, received much less attention, which is why SSR as a holistic approach lagged behind.
Recommendations:
Security and armed forces are not only service providers, they are in fact partners in re-building institutions and restoring public confidence in the system. With that goal, the policy brief recommends the following:
To the Legislative authority:
- Reject the bill because the amended version remains problematic,
- Conduct an comprehensive review of the existing legal body to ensure its compliance with international standards and its ability to provide protection for those who protect our nation.
To the Executive Authority:
Undertake a significant SSR process that includes appropriate accountability and oversight structures, to ensure that security and justice provision is people-centered, responsive to the rule of law, and able to meet the needs of both the providers and recipients of these services.
To Civil Society and Social movements:
- Practice self-control and calmness. While opposition is a sign of a healthy democratic society, yet provocation is never justified.
- Host nationwide discussions regarding challenges and strategies for building trust between the armed forces and communities.
[1] Frequent attacks/ambushes on national guards, army patrols, or police roadblocks. Similar attacks/kidnappings were directed against buses carrying soldiers, individual security forces, national guards, forest guards, and soldiers. In May 2014, an attack was directed on the home of the Minister of the Interior in Kasserine. [2] 13 July 2017: A hearing of the Ministers of Interior and Defense as well as representatives of police unions. 8 and 9 November 2017: A hearing of representatives from civil society. 14 November 2017: A hearing of the Ministers of Interior. [3] Legal experts, the General Union of Tunisian Workers, National Union of Tunisian Journalists, Tunisian Order of Lawyers, The Association of Tunisian Judges, civil society, ministers of Interior, Justice, and Defense, Police unions. [4] Presented to the General Legislation Committee on June 12, 2020. [5] The General Legislation Committee Report. Available at : http://www.arp.tn/site/servlet/Fichier?code_obj=111206&code_exp=1&langue=1 [6] Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, Available at https://bit.ly/2Jrr0JL (Accessed on December 7, 2020) [7] Amouna News. “كلمة الناطق الرسمي بإسم النقابة الوطنية لقوات الأمن الداخلي شكري حمادة بخصوص مشروع قانون حماية قوات الأمن الداخلي”، متاح على: https://bit.ly/3lG27Xq [8] Article 49: “No amendment may undermine the human rights and freedoms guaranteed in this Constitution”. [9] Respectively the General guarantee of equality, Right to life, Human dignity, Freedom of opinion, thought, expression, information and publication, Right to information and the Freedom of assembly. [10] Art. 3 of the bill. [11] “No criminal liability shall be incurred if the agent armed forces who, when defending one of the attacks that make up the crimes provided for in articles 13, 14 and 16 of this law, caused injury to or death of the aggressor, if this act was necessary to achieve the legitimate in order to protect lives or property, and the only means used were to ensure a response to the assault, and the response was proportional to its severity”. [12] A body of principles adopted by legal and security experts. November 1996. Available at https://www.article19.org/wp-content/uploads/2018/02/joburg-principles.pdf [13] Rome Statute of the International Criminal Court, July 2002. Available at https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf [14] The explanation of the reasons document. Annexed to the bill. Available at http://www.arp.tn/site/servlet/Fichier?code_obj=89344&code_exp=1&langue=1 [15] UNHCR. “Letter by the High Commissioner to the Foreign Minister”. 2017. https://lib.ohchr.org/HRBodies/UPR/Documents/Session27/TN/TunisiaHCLetter.pdf [16] DCAF and ISSAT. “SSR In a Nutshell”. 2012. https://issat.dcaf.ch/download/2970/25352/ISSAT%20LEVEL%201%20TRAINING%20MANUAL%20-%20SSR%20IN%20A%20NUTSHELL%20-%205.3.pdf
