“Whom does the law serve?” This question poses itself in any society wishing to take measure of its democracy. Who creates the broad strokes of legal norms and regulations, and how representative are they? And no less importantly, what forces are capable of influencing those who determine these norms and regulations? Who can either push or urge them to put certain norms in place, or discourage or prevent their adoption? And finally, what avenues are available for engaging legal norms in order to confront those who make the law?

 

Who Designs Legal Norms and Regulations?

The municipal elections of 2018 expanded the sphere of actors producing legal norms and regulations on the local level. The election results signaled something of a rejuvenation among this group: 37% of those who won seats were youth under the age of 35. A significant proportion of those who won municipal seats were women (47%) and 68 women were elected as mayors, including the mayor of the capital city of Tunis. Furthermore, 144 individuals with disabilities won seats on municipal councils.[1] Even so, the broadening of participation on this front remains relative given the high proportion of those who did not vote in the elections (63%).

Parliamentary elections in 2018 were driven by a rearrangement of political factions and alliances known in Tunisia as “parliamentary tourism.” Parliamentary blocs made up of parties that had been winners in the 2014 legislative elections were obliterated. New blocs emerged that swiftly became the arms of new political parties.

Within parliament, 2018 began with a rush of activity due to the fervor surrounding a draft law on municipalities. By the end of the year, however, parliament could not manage to produce a quorum to approve the full text of a draft law on retirement – despite the fact that its members had previously approved all of the law’s statutes with a comfortable majority. This troubled performance was indicative of a political crisis that divided the executive branch and split the ruling coalition. The political crisis left lasting effects on the parliamentary consensus that had been driving legislative work. Most notably, this fissure has resulted in parliament’s failure to establish a Constitutional Court and a number of other independent constitutional bodies.

 

What Forces Have Influence Over Legal Norms and Regulations?

In 2018, political authorities began proclaiming the slogan of major reforms. From the start it was no secret that significant elements of those reforms, which have been described as “painful,” were planned and conceived by foreign lenders. These lenders are now providing budget resources by offering loans.

 

Preserving gains in the face of overseas demands for reform

The slate of reforms planned for 2018 involved reducing the budget for public employment wages. This was to be accomplished through a number of measures: decreasing the number of public officials through halting new appointments and through early retirement, and stabilizing the funds earmarked for wages through a temporary freeze on salaries and a permanent freeze on retiree pensions.

In its initial workshop, Tunisia’s reform program warned that accelerating the steps of reform would impoverish the middle class and harm pensioners’ rights. In response, the Tunisian General Labor Union successfully supported resistance movements against reforms. This led to a campaign for pensioners’ rights and the empowerment of workers through wage increases that compensated for the loss of their purchasing power, which had been diminished due to inflation and rising prices.

Trade union structures have also provided support to temporary workers in the public sector – specifically their demands aimed at protecting them from working without job security. Eventually the government was compelled to sign an agreement recognizing some of their rights. In another gain in 2018, the National Syndicate of Tunisian Journalists succeeded in defending their professional rights from their point of view. Their members had been to a large extent victims of the owners of media organizations, who had refused to honor the terms of a joint agreement between them. In addition, the Tunisian Order of Lawyers succeeded in preserving their professional right to client confidentiality, and repealing the provisions of the Public Finance Law on the matter. These provisions had been justified as necessary for fighting money laundering and preserving Tunisia’s economic interests vis-a-vis its relationships in global financial circles.

As in preceding years, these movements made 2018 a year of trade union and work sector activity. Following the revolution these professional structures have become important political actors. Their power reflects the extent to which most political parties are out of touch with the society in whose name they speak.

Meanwhile, clandestine immigration and the victims of its boats of death have revealed the depths of Tunisia’s social crisis. Further indications of the crisis include the violent street protests that took place in early 2018 and a movement of spontaneous sit-ins (most of whose participants were unemployed individuals) that took place in various parts of the country. Some of these were violent or disrupted sites of production, signaling the fact that for a significant part of Tunisian society nothing within the norms of democratic practice offered a way for them to express themselves and their point of view.

In the realm of social rights, then, 2018 was a year of struggling to preserve gains that have been years in the making. There were no new achievements in terms of economic or social rights. At first glance, the Social Security Law passed in early 2019 appears to be a law that would grant economic rights to a specific category. Further inspection, however, reveals concerns about the law’s underlying objectives. In the current context, the law emerges as tantamount to a prescription for handling the undermining of social rights. The undermining of these rights has been the result of reforms demanded by overseas actors, including the recommendations of the International Monetary Fund. Not only will the erosion of social rights harm the gains achieved in terms of labor and work sectors, it will also entail a dialing back of free public services and facilities, starting with educational institutions.

President Beji Caid Essebsi opened a conversation about gender equality in inheritance and also formed a commission on rights and freedoms. That commission published a detailed report identifying instances where the law infringes upon the values of human rights and individual freedoms. Proposals for the implementation of equality in inheritance in legislation provided a significant window for discussion in Tunisian society and politics – the goal of which was to develop an overarching framework of human rights. This initiative might have been achievable, as proposals and draft laws had swiftly become ways of transforming the human rights landscape. But early on, the initiative’s open approach made it clear that party operatives were most invested in their own political and electoral battles. Disappointment ensued. There was no room in the political year for demanding rights, which are presumed to be low on the agendas of the politically ambitious.

 

Individual rights disrupted by politicization and ideologization

Overall the topic of individual rights saw broad discussion in the public sphere. This was thanks to Essebsi’s initiative in setting up the Commission for Individual Freedoms and Equality and their publication of a very detailed report about infringements upon human rights and individual freedoms. Despite this, however, actual legal gains connected to rights and freedoms were practically nonexistent. This was in contrast to previous years which saw the passing of important laws, most notably the law on the protection of women from violence. With the exception of the ratification of three international conventions, only one rights-based law was passed in 2018. This was the law on racial discrimination, whose implementation remains limited in Tunisia.

One of the key reasons that this commission failed to yield more outcomes, legally speaking, may be the early and open approach taken by the president in his leadership of this initiative – and the way that party operators exploited the outcomes in their political and electoral battles. In light of this experience, it is worth considering the negative effects that result from the ideologization and politicization of rights-based movements in the pursuit of their goals.

 

Victims and the benefits of transitional justice

When it comes to the Truth and Dignity Commission (TDC), it initially appeared that victims’ movements would have some influence on the TDC’s determinations. However, the TDC’s response to victims’ demands was compromised on two fronts. First, as many leaders of the victims have stated, the TDC inflated the number of victims. The inflation of this number, and consequently the cost of reparations, poses a real threat to the rights of victims, especially given the limitations of the state budget. Second, achieving accountability in transitional justice entails referring victims’ cases to the relevant authorities. Yet scrutiny of the working conditions of these various authorities reveals multiple pitfalls that could lead to the collapse of the entire transitional justice process. For instance, most files did not include sufficient and serious research. Additionally, various problems call into question the validity of the trials taking place before these authorities. For instance, as a result of legislative shortcomings there was no appeal process established for these trials. If their constitutionality is challenged as a result, this could nullify all of the work that has been achieved.

 

Can Legal Norms and Regulations be Used to Advocate for Justice or Confront Those in Power?

Finally, we consider the extent to which movements have succeeded in using legal norms and regulations to strengthen their rights or to confront political authorities. The most productive arena in this matter concerns the work of the judiciary and both traditional and non-traditional oversight bodies in their various jurisdictions.

Our first observation on this front is the continuing conflict over candidates for the Constitutional Court. This impedes not only the establishment of the court, but the broader issue of establishing the democratic right to contest a law’s constitutionality. As a result, litigants cannot contribute to clearing the legal landscape of unconstitutional laws. The legislature therefore must be exhorted to accelerate the process of harmonizing existing laws with the new constitution. There is a temporary oversight body monitoring the constitutionality of laws, but it is known that its jurisdiction is limited to monitoring the constitutionality of draft laws and making requests from its members to the political authorities.

And what about the rest of the judicial bodies? How do judges view their positions? Just as importantly, how do litigants perceive them? And beyond these perceptions, how did the judiciary actually function in 2018? Was its work informed by its traditional function of serving the law, and subsequently the makers of the law? Or was it inspired instead by the role that the Constitution enshrines for the judiciary, which entails protecting rights and freedoms?

On this front we have noted the positive nature of some pioneering judicial rulings in two areas: fair trials and civil freedoms (namely freedom of expression and combating corruption). Yet this trend is by no means representative of the general state of affairs within the judiciary. And although attempts at strategic litigation remains weak in Tunisia, the association “I Watch” has done notable work in terms of demanding access to information and other initiatives. These include creating a movement to fight corruption and its ramifications for influential discourse in the public sphere.

 

This article is an edited translation from Arabic.

 

Keywords: Tunisia, Beji Caid Essebsi, Rule of Law, Labor rights, Truth and Dignity Commission


[1] “Women, Youth, and People with Disabilities in the Tunisian Municipal Elections: The Success of a Policy of Positive Discrimination in Numbers”, The Legal Agenda, 14 May 2018.