In many areas the implementation of Tunisia’s 2014 Constitution is still at the beginning, for example in terms of applying human rights protection. While the Constitution includes a provision that clarifies the limits to which human rights can be restricted (Article 49) to avoid extensive limitations, judges have only applied it in a few cases so far.
“Unlike Germany, Tunisia is still in a period of democratic transition and the lack of a Constitutional Court and continued application of the emergency laws creates a situation where the executive has wide-ranging prerogatives which can come into conflict with the rights and freedoms of our citizens”, explained a Tunisian judge, adding: “Some brave judges have already applied the principles of article 49 of our Constitution to limit the restriction of basic human rights by the state, but all judges in Tunisia need to be aware of this article and how it reshapes the role of the judge.”
This was the background of a study visit of 9 senior judges and legal professionals from Tunisia, who visited Stuttgart, Tübingen and Heidelberg from 11 – 13 December 2017. The visit was conceived by the International Institute for Democracy and Electoral Assistance (IDEA) and implemented by IDEA, the Geneva Centre for the Democratic Control of Armed Forces (DCAF) and Democracy Reporting International (DRI). Accompanied by Germany’s former Minister of Justice and DRI Board member, Prof. Dr. Herta Däubler-Gmelin, the Tunisian participants met with senior German judges to discuss the role of the judge in protecting constitutional rights and freedoms. In further exchanges with Members of the Parliament of Baden-Württemberg, the Tunisian judges also learned about recent law initiatives in the field of counter-terrorism where the principle of proportionality was applied and the mechanisms of parliamentary oversight to control the work of state security bodies. They also met the mayor of Stuttgart in charge of public order and security matters and the City Council’s liaison officer for the police forces, who explained which procedures and limits exist for security organs to limit citizen’s rights in the execution of their duties. The visit was rounded off by a comparative discussion on Tunisian and German law with academic experts from the University of Tübingen and the Max-Planck-Institute for Comparative Public Law and International Law.
“The concrete examples of the practical application of lawful restrictions of constitutional rights in different policy areas, for example in relation to freedom of speech and assembly, public security and counter-terrorism, the right to privacy and the protection of personal data, or the freedom of movement and public health provided us with a good insight of how the principle of proportionality related to the daily work of judges, politicians or polices forces in Germany”, concluded one Tunisian judge.
Read more about how the principle of limitations to restrictions on basic rights and freedoms is key for making human rights guarantees in constitutions more effective in our briefing paper “Lawful restrictions of civil and political rights” (see attachment).
