The role of the constitutional Court consists in guaranteeing the supremacy of the Constitution, on the one hand, and protecting the republican democratic regime and rights and freedoms on the other hand. However, the continued absence of this Court has led to the enforcement of repressive laws, such as, articles 226 and 226 bis of the Penal Code punishing offenses based on vague, equivocal and undefined notions like “indecent assault”, “indecency” and “attacks on public morality”.
As a result, authorities infringe on constitutionally guaranteed freedoms, such as: freedom of conscience, the right to privacy and the prohibition of torture and inhuman, degrading and humiliating treatments.
First of all, freedom of conscience is mainly threatened during the month of Ramadan. Many actors are actually persecuting individuals who do not observe fasting.
Secondly, the right to privacy which obliges the State not to interfere is violated. In fact, individuals are still being subjected to arbitrary or unlawful interference with their intimate and sentimental life, family life, religious and non-religious beliefs etc.
Thirdly, despite the commitment of Tunisia to end non-consensual anal tests, these inhuman practices that amount to torture continue to be applied against persons who are presumed or identified as homosexuals.
Consequently, these infringements have led to the violation of the minimal guarantees of fundamental rights applicable to all. These guarantees are expressed in article 21 of the Constitution as follows: “the State shall guarantee to individuals a dignified life”. Undoubtedly, dignity is the bedrock of all rights and freedoms.
Unfortunately, police and judicial practices in this field have unveiled the gap between the text guaranteeing the freedom and its implementation by the authorities.
Furthermore, this report has been produced within the context of election campaigns of both legislative and presidential elections which took place between September and November 2019. At that time, the political landscape was in turmoil and the candidates who were running for presidency held controversial opinions on individual freedoms.
In the meantime, two main questions have divided the society and the public opinion, namely, the equality in inheritance and the decriminalization of homosexuality. Thus, the reaction of politicians was either rejecting or promising to improve individual freedoms.
In sum, 2019 was marked by two aspects that explain the violations of individual freedoms. On the one hand, issues of individual freedoms were relegated to the backseat. On the other, before, during and after elections, the emergence of populism had an impact on the consolidation of rights and freedoms.
Issues of individual freedoms are played down:
In 2019, presidential and legislative elections took place in Tunisia. However, candidates paid less attention to the issues related to individual freedoms. Actually, this can be explained by the fact that tackling the issue of individual freedoms poses a risk to candidates running for presidency.
Thus, individual liberties were of secondary importance during the elections and that was in favor of social and economic issues. As a matter of fact, the public speech that has prevailed in the electoral programs in a context of an economic crisis has resulted in a majority who does not give priority to issues related to individual freedoms and equality.
A period marked by populism:
Populism has always been growing up in a context of aggravated economic and social inequalities, corruption of parties in power and considerable deterioration (or the absence) of social rights.7 Undoubtedly, this context does not leave room for individual freedoms.
Moreover, the electoral campaign of Mr. Kais Said (the actual President) has carried the slogan Acha’ab yourid (the people want) which expresses a populist discourse that is distant from representative democracy. In this way, the head of the State does not represent the people but rather adhere to what the latter would say. In other words, through Acha’ab yourid, no importance has been accorded to individual freedoms. This implies a fortiori that the will of people would deprive the individual of his will and of his personal autonomy. Therefore, the exercise of individual freedoms will remain dependent on the collective will.
That is to say, the individual is reduced to nothingness; individuals are only defined in accordance with his belonging to the group. Hence, this represents a danger to individual freedoms since the arrival of Mr. Kais Said to power. In the same context, legislative elections gave rise to a Parliament dominated by populists.
In fact, besides to Ennahdha, the Islamist party which does not adopt individual freedoms as an objective per se but enhances these freedoms in a vague way. I’italf Al-Karama, Harakit Echaâb, and Errahma are also described as populist parties. I’italf Al-Karama, for example, refuses completely any debate or commitment towards individual freedoms.
While other parties consider that social and economic issues should have priority over individual freedoms, Al-tayar Adimokrati, Qalb Tounis and Afek Tounis consider that individual freedoms are a priority as it is the case for the rest of rights and freedoms
guaranteed by the Constitution.
Yet, this wave of populism is counterbalanced by the commitment of the civil society, thanks to its continued work to monitor the violations, protecting the exercise of individual freedoms and to reinforce them.