In Defence of Individual Liberties: Bodily Liberties in a Civil Democratic State

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This constitutional provision crowns decades of militancy led by civil society and political activists. It functions as a common denominator bringing together all those who believe in human rights and their universal, interdependent and complementary acceptation.

Post-2011 Tunisia has been marked by human rights violations, violations of freedoms and the rights to be different. It has also been marked by attacks against cultural and artistic activities. Two cases have come to illustrate these attacks. The attack on the Abdellia exhibition in June 2012, when radical Salafists targeted and destroyed artworks they considered blasphemous; and during the same period the attack against  the cinema Africart, which hosted the cultural event Touche pas à mes créateurs  (Hands off my artists), organized by a network of Civil Society Organizations to claim and defend the right to freedom of artistic expression, and where the polemical film ‘Ni Allah, ni Maître’  (‘No Allah, No Master’) by the Tunisian director Nadia El Fani was to be shown.

Women and people with non-normative sexuality have been assaulted in a political environment characterized by violence and impunity, an environment which led to two political assassinations: the Leftist political leader and long-time defender of democracy, Chokri Belaid was shot in front of his house on February 6, 2013 and his fellow nationalist leader Mohamed Brahmi was riddled with bullets outside his home on July 25, 2015 (the symbolic National Day of the Republic). These two atrocious, cold-blood murders were claimed by the radical Islamist militants. The Constitution of January 27, 2014 was sealed in blood.

Once voted in, a Constitution has to be implemented, a difficult task in a country where there are still century-old legal texts; texts that testify to an era prior to the Universal Declaration of Human Rights; texts where the individual is absent. As such, the newly adopted Constitution has met with resistance to its implementation... Will we be content with a beautiful text? Are we going to limit ourselves to a beautiful legal showcase?

The Tunisian Penal Code of 1913 continues to be applied in order to imprison hundreds of people and especially young people - for a kiss, a smile, a glass of wine, or a sexual relationship between consenting adults in private. On January 12, 2017 in Hammam Sousse, two young men were arrested in their apartment, for the crime of having ‘feminine clothes and accessories at home’! In application of ‘Article 226’ prescribing ‘an offense against morality or public morality by gesture, word or intent,’ they were sentenced to 2 months' imprisonment. During the same month, a woman in Nabeul was accused of drunkenness and having assaulted police officers. She was sentenced to 6 months in prison on the basis of the same Article. The police officers illegally filmed her and posted the video on Facebook.

Obsolete laws prevent women from enjoying their full citizenship, equal rights and freedoms. This situation has compelled civil society to continue its fight and to constitute itself in coalitions and networks gathering dozens of associations; most notably, the ‘Civil Coalition for Individual liberties.’

These initiatives have had brilliant results: a law against human trafficking (August 2016), a law for the elimination of all forms of violence against women (August 2017), and the abrogation of the 1973 decree prohibiting Tunisian women from marrying a non-Muslim (September 8, 2017).

Then came the ‘Report on Equality and Individual Liberties’ of June 12, 2018, prepared by the Commission of Individual Liberties and Equality (COLIBE), a commission that was created at the request of the President of the Republic on August 13, 2017. For civil society this report constitutes a fundamental element in the debate around the proposals aiming to implement two key components of the Tunisian constitution: perfect and effective equality between Tunisian men and women, and the consecration individual freedoms.

The 235-page report consists of two main arguments and two proposals for legal reform. Firstly, arguments to establish complete and effective equality between men and women, and a related proposal for a bill providing for equality in inheritance (one that wreaked havoc in the public opinion). Secondly, an argument to establish individual freedoms, followed by a proposal for a draft ‘Code of Individual Liberties.’

The latter attracts our attention on two levels: COLIBE has reconsidered the liberticidal texts[i] included in the still active Penal Code of 1913 in light of the Tunisian Constitution, Tunisia's international commitments and modern human rights guidelines; and the report  presents a vision of criminal law based on these recent trends and developments.  These are discussed below under the two following headings:

. A vision based on a human-rights approach: COLIBE has complied with its mandate, as set out in the presidential decree that created it on August 13, 2017. The decree provides for the creation of ‘a commission to the President of the Republic in charge of preparing a report on reforms related to individual liberties and equality, with reference to the provisions of the constitution of January 27, 2014, international human rights standards, and new orientations in the field of freedoms and equality.’

This gave the commission a wide range of legal bases to establish an inventory of liberticidal texts and provisions and to propose reforms in this area.

Indeed, the Tunisian Constitution of January 27, 2014, is very advanced on certain human rights. The Constitution unequivocally guarantees freedom of conscience, belief, and the free exercise of religion (‘Article 6’); individual liberties (‘Article 21’); protection of dignity and physical integrity (‘Article 23’); protection of privacy, inviolability of the home, and secrecy of correspondence and personal data (‘Article 24’); freedom of opinion, of thought and expression (‘Article 31’), as well as freedom of cultural / artistic creation (‘Article 42’).

In addition to this constitutional base, the wide range of international conventions and protocols duly ratified by Tunisia seek to establish equality and respect for freedoms. These include: the ‘International Covenant on Civil and Political Rights’ (ICCPR) and the ‘International Covenant on Economic, Social, and Cultural Rights’ (ICESCR); the ‘Convention on the Elimination of all Forms of Discrimination Against Women’ (CEDAW), the ‘Convention on the Rights of the Child’ (CRC), the European Council’s ‘Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data’ (CETS No. 108), as well as ‘The Protocol to the African Charter on Human Rights and Peoples' Rights' (the Maputo Protocol).

Last but not least, COLIBE considered recent (re)orientations in the field of human rights.  These are manifested on the international stage through the recent European provisions in this area, the doctrine of the various international commissions and the specific mechanisms of the United Nations, such as the recent visit of the UN Special Rapporteur to evaluate the status of freedom of conscience in Tunisia (report still to be published).  They are further manifest at a national level by recent contributions to the field such as the Tunisian coalition for the rights of LGBTQI people’s report submitted on the occasion of the Universal Periodic Review of Tunisia in  May 2017;[ii] the Civil Coalition for Individual Liberties Report on the status of violations of individual liberties;[iii] the recommendations of the special rapporteurs; and the development of certain national rights relating to equality and freedoms (holding the names of both parents, the change of sex and identity, same-sex marriage, same-sex parenting, euthanasia, etc.).

However, while drawing inspiration from this repository, COLIBE did not opt ​​for the most comprehensive definition of individual liberties and equality. While it did present a more modern view of criminal law, it did not make clear recommendations on issues such as same-sex marriage, same-sex parenting, and/or euthanasia.

2. A modern vision of criminal law linked to individual liberties: the current Tunisian Penal Code, adopted in 1913, is riddled with liberticidal, moralizing provisions. This is particularly evident in the section entitled ‘attacks on morals’, the provisions of which include, ‘six months of imprisonment and a fine of one thousand dinars (approximately 300 Euros) for anyone who publicly commits an offense against morality or public decency by gesture or word or intentionally causes others to act in a way that undermines modesty.’ The same penalties apply to ‘anyone who publicly draws attention to an opportunity to commit debauchery, through writings, recordings, audio or visual, electronic or optical messages.’

Faced with the danger of these fuzzy and manoeuvrable notions of good morals, public morality and modesty, which contradict the basic principles of criminal law, COLIBE proposed to replace these notions with clearer and more exact content. Indeed, only the ‘voluntary exhibition of genitals for the purpose of harming others’ punishable by a fine of 500 Tunisian dinars (approximately 165 Euros) was considered to meet contemporary standards of jurisprudence.

Similarly, Article 231 of the Penal Code states that ‘Except in cases provided for by the regulations in force, women who, by gestures or words, offer themselves to passers-by or engage in prostitution, even occasionally, are punishable by 6 months to 2 years imprisonment, and from 20 to 200 Tunisian dinars (6-60 Euros) fine. A person who has had sex with one of these women is considered to be an accomplice and punished with the same penalty.’ This provision, considered ambiguous and arbitrarily applicable, was reviewed by COLIBE, who proposed to replace the custodial sentence with a simple fine.  

Finally, because it is aware of the dangers and abuses in the application of ‘Article 230’ which punishes homosexuality by 3 years in prison, the Commission proposes to simply repeal this article, or if necessary, to replace the deprivation of liberty by a fine.

COLIBE’s approach, considered progressive and modern compared to the pre-World War I penal code, is to us, open to criticism on two levels:

Firstly, proposing to penalize homosexuality, even by a fine, is totally contrary to both modern science and contemporary jurisprudence. Homosexuality is no longer considered by the scientific community to be a disease or a perversion, and the legal meaning of homosexuality is not clear, and as such it should not be possible to institute a legal sanction on the basis of imprecise and indeterminate ‘facts’ and acts.

Secondly, COLIBE completely neglected the question of the criminalization of adultery. While modern trends in human rights and criminal law exclude adultery from the criminal sphere and consider it as part of a couple's private life, ‘Article 236’ of the Penal Code punishes adultery by 5 years in prison. However, despite this clear aberration COLIBE regrettably made no mention of any possible reform of this issue.

The COLIBE report met with a campaign of violent opposition from conservatives and radical Islamists in Tunisia. The members of the Commission, especially its president Bochra Bel Haj Hmida, a notorious feminist, even received death threats from Mr. Adel Almi a radical opinion leader, and founder of Zitouna, an extremist Islamist political party. With the exception of some civil society activists, progressive bloggers and journalists, the report and the commission received little political support. Some parties issued communiqués which, somewhat shyly, denounced the violent discourse against the members of the commission, amongst them the Islamist Ennahda party.

Civil society desperately waited for a supportive response from the President of the Republic, who had created this commission exactly a year previously, on August 13, 2017, on the date of the celebration of the National Women’s Day and the 62nd anniversary of the Code of Personal Status. Two days before his speech was due, opponents of the COLIBE report staged a large demonstration replete with extremely violent slogans.

The awaited response from the President was largely disappointing as he went no further than announcing a legislative initiative to establish equality of inheritance. His legislative initiative was denounced by Ennahda party at the conclusion of its Shoura council of August 26, 2018, which in its communiqué, explicitly rejected the president’s legislative initiative as they consider it to be against the principles of Islam.[iv] His speech was also denounced by civil society activists as it only addressed one single demand and showed no demonstrable support for the elimination of all forms discrimination against individuals in Tunisia.

On the day of the President’s speech, thousands of Tunisians, both women and men demonstrated in the same streets as the Islamist radicals had two days earlier. They were armed with their own slogans, this time calling for the reform of all unconstitutional liberticidal legislation. Young and middle aged, men and women (veiled and not veiled), gathered not only to mark their presence and show their support for the COLIBE report, but to tell the world that Tunisia is moving forward and that it will be the pioneer in the Arab-Muslim world; through establishing equality of inheritance and in the continued fight for the consecration of all individual liberties.

Translated from the French by Wafa Ben Haj Omar.