After much anticipation, Tunisia’s National Constituent Assembly (NCA) ratified the basic law regarding the establishment and regulation of transitional justice.[1] The long-awaited law saw ample participation by civil society. The debate surrounding the drafting of the law was greatly enriched by many consultations and discussions that took place in different regions of the country, and among various bodies invested in public good at large and specifically addressed the issue of transitional justice.[2] The law was approved after National Assembly deliberations that lasted for two full days (December 13 and 14, 2013), and in the absence of several representatives who withdrew from the Assembly.

 

The drafting of this law was finalized in November 2012, and it was subsequently submitted to the government by the committee entrusted with drafting it. Since then, the law has seen several alterations and amendments reflecting political and sometimes partisan motives. This reflected negatively on some of its articles and provisions. The project acquired a political coloring at every stage of its formulation (first by the government, followed by the NCAs committees, and lastly by the general session).

 

Despite the revisions and additions, the general philosophy behind the drafting of the law was reflected in its content. But prior to enquiring about the potential of its success in achieving transitional justice, a brief review of the strengths and weaknesses of the law is in order.

 

The Law's Strengths: The Establishment of an Independent Commission with Extensive Authority

 

The law is comprised of 70 chapters under two major headlines. The first defined transitional justice and regulated its fields within an integrated vision. The second headline was dedicated to the Truth and Dignity Commission.

 

A Definition Compatible with International Standards

 

In its first chapter, the law defined transitional justice as "an integrated process [or path] of approved mechanisms and tools to understand and address past human rights violations, by revealing the truth about them and holding those responsible for these violations accountable. Accountability involves paying reparations to the victims for the harm they suffered, and rehabilitating them. The aim is to achieve national reconciliation, preserve and document collective memory, establish guarantees that violations will not be repeated, and achieve the transition from a state of dictatorship to a democratic system that contributes to the consecration of a system of human rights".

 

Building on the Global Charter of Human Rights

 

The law thus defines transitional justice in a manner which explicitly refers to "human rights" and the "human rights system". Adopting human rights as a legal framework is also reflected in the approach to specific matters that go beyond a general definition of transitional justice.

 

The definition of a violation in Chapter Three includes each and every serious or systematic violation of a "human right". Crimes stated in Chapter Eight are also crimes documented in international charters relating to serious violations of human rights, with the exception of ballot-rigging, financial corruption, embezzlement of public funds and pressure towards forced migration for political reasons. These exceptions are violations that were inserted into the law during the general session when the law was voted on.

 

As for the special status of women, it was mentioned in a number of chapters of the law in relation to revealing the truth and paying reparation, providing immediate care, and organizing review sessions. A similar special status was conferred on "elderly people, children, the handicapped, people with special needs, the sick and the fragile segments". The term "fragile" replaced the term "marginalized groups” which was present in the original darft. The latter was proposed by civil society.

 

The Basic Principles of Transitional Justice as Founding Principles

 

The law explicitly adopted the most important principle of transitional justice agreed upon as a foundational principle. It stated that truth is a right "guaranteed by law", and that "preserving the memory [of what occurred] is a right for all future generations", and equally so, is "paying reparations to the victims for the harm inflicted on them".  


In addition to acknowledging these rights, the transitional justice law acknowledges the principle of “no impunity”. It stipulated that there would not be a time limit set on filing lawsuits resulting from serious human rights violations, as set out in Chapter Eight of the law. It also held the state publicly responsible for preserving collective memory, paying reparations for harm, and providing immediate care for victim groups, as well as footing the bill of litigation.

 

Entrusting the state with such responsibilities is reassuring to the public in general, and particularly to victims. The victims under the new law would be able to seek justice even when it is not possible to accurately identify responsibility for the harm inflicted on them.

 

Creating an Independent Commission: Outstanding Functions and Powers

 

The second topic addressed by the law is the Truth and Dignity Commission (TDC), which will oversee -alongside other bodies- the process of transitional justice.

 

One of the most significant features of the TDC, as outlined in Chapter 38 of the law, is that it enjoys a juridical status and has financial and administrative independence (Chapter Sixteen). As such, the TDC will be an independent public commission and not the extension of any state authority, whether it be legislative, judicial, and especially executive.

 

This independence, however, is contingent upon the development of safeguards and mechanisms in accordance with the principles of neutrality and independence. The TDC should also be subject to some sort of control and accountability to prevent it from steering away from its mandate. No such control is stipulated in the ratified law -which renders current legislation regarding administrative control over higher independent public commissions- as the legal arbiter.

 

TDC Tasks

 

The law states a large number of tasks relating to the TDC. These include truth exposure, compensation, and reparation.

 

Exposing the truth relating to human rights violations is a prerogative of the TDC in an almost comprehensive manner, whereby "the TDCs work covers the period from July 1, 1955 until the date the law was issued”.


This is a long period which extends over more than 58 years. The TDC is expected to identify all the violations that occurred, their causes, context and impact. In cases of death or coercive disappearance, the TDC is entrusted with finding out the fate of the victims, their whereabouts, and the identity of the perpetrators and those responsible. TDC is expected to prepare its annual and final reports in which it documents "the facts it has arrived at, identifying responsibilities and the reasons that led to the violations…".

 

With regards to compensation, the TDC has wide-ranging powers. The TDC is given the power to "control the necessary standards to compensate victims, specify disbursement of compensation, and take measures for the reporting and the timely and urgent compensation of the victims".

 

This will require hard work from the TDC. It will be required to take into consideration "the estimates allocated for compensations, especially that it will have control over the dignity and rehabilitation fund for the victims of dictatorship.[4]


Yet, one of the most significant constraints facing the activation of the compensation system will be the resources and capabilities available. Chapter Eleven of the law stipulates that "the resources available for the state at the time of implementation shall be taken into consideration".

 

In addition to these vast tasks, the TDC is empowered to submit recommendations, suggestions, and measures that should be taken "to protect the rights of individuals, particularly those of women, children, special needs groups, and fragile groups”, as well as recommendations for measures “that enhance the democratic structure and contribute to the construction of a state of law [and order]".


It remains unclear as to how these recommendations and proposals are to take effect given that the TDC is expected to complete its work within a maximum period of five years from the date of appointing its members.

 

In addition to the tasks referred above, the TDC partakes in other tasks concerning transitional justice entrusted to other bodies, such as the judiciary. The most prominent of these tasks is related to prosecution and arbitration.

 

Regarding issues of human rights violations, the law stipulates the need to create specialized judicial bodies. Hence, the TDC can only refer to the public prosecution in those "cases where serious human rights violations have been committed". However, and in the field of arbitration, the TDC, through the Arbitration and Reconciliation Committee, which will be created within the TDC, shall address reconciliations related to cases of financial corruption. The implementation of its recommendations for reconciliation may result in halting trials or suspending the imposition of the penalty, unless it was discovered that the perpetrator intended to conceal the truth -in which case prosecution or penalty imposition is resumed.

 

Regarding other violations, the decision of the Arbitration and Reconciliation Committee does not prevent holding perpetrators of violations accountable, provided its decision is taken into consideration when deciding the punishment.[5]

 

In order to complete these numerous tasks, the legislator granted the TDC vast authorities with regards to investigation. It has the authority to access archives, including military ones, and examine them. These archives may contain important information regarding the types and details of violations.

 

The TDC can also "take all necessary arrangements to protect witnesses, victims, experts, and all those who testify before it regarding violations covered by the law, regardless of their status. This also includes those suspected of committing serious human rights violations”. The TDC is empowered "to resort to any measure or mechanism that enables it to reveal the truth".

 

Weaknesses and Shortcomings of the Law

 

The law imposes a criminal penalty (a maximum of six months in jail and a fine of 2,000 Dinars) for anyone who commits the following:

  • intentionally hinders the TDC's work, consciously fails to comply with the TDC's summons to testify, or blocks access to the required document or information. However, the law fails to provide other means to enable the TDC to acquire information or encourage those who have it to come forward. This will negatively affect the process of acquiring documents and information that is required for its work.


Other major shortcomings of the law include the following:

 

  • Treating the law as a panacea for all outstanding problems that relate to transitional justice, such as those of compensation, preparing victims lists, acknowledging economic and social rights, holding those responsible for violations accountable, as well as establishing national reconciliation.

 

  • The NCA did not stop at that.  It also entrusted the TDC with a new task of cleaning house in the administration and all sectors in need of such screening. This includes providing recommendations for removing government officials from office, dismissals, or compulsory retirement for anyone in a high government position, including the judiciary. Apart from the potentially overwhelming nature of such a task, it raises fears that the committee will be used as a tool to settle political accounts.

 

  • The apparent desire to accommodate businessmen with links to the former regime when it comes to the impact their detention or restraint from traveling during investigation might have on their business.


  • This special treatment is apparent in the distinction made regarding TDC powers in arbitration cases. In financial corruption cases, the TDC will have the final word if the arbitration agreement is signed and implemented. This can halt prosecution or suspend the implementation of the judicial verdict. In other violations, however, the TDCs opinion is consultative but not binding, with the final word retained by the judiciary.


  • The continued politicization of the Transitional Justice project. Many alterations to the law were introduced after the technical committee completed its work. These changes that influenced the definition of Transitional justice and the tasks of the TDC were a reflection of the political balance of power and were manifested in the composition of the NCA.

 

  • The text's adoption of wide-ranging concepts that could overwhelm the bodies overseeing the process.  Such concepts include:

    • Victimhood: The law based its definition of who is considered a victim on international law and transitional justice jurisprudence. A victim is thus "anyone who sustained harm as a result of being subject to a violation, according to the interpretation of the law, whether he is an individual, a group, or a juridical person", in addition to "every area that was systematically marginalized or alienated” (which is a broad definition).  


However, the law further broadened the definition to appease some political groups with Islamic affiliations. It included as victims "family members who sustained damage resulting from their family relations with the victim, and every person who sustained damage when interfering to assist a victim or protect him/her from violations". The number of victims are thus expected to rise substantially, exasperating the problem of adequate compensation and the level of the national group's ability to handle it.


  • Violation: The law did not settle for restricting violations to human rights violations. The NCA insisted, while discussing the law, on adding violations related to election-rigging, financial corruption, embezzlement of public funds, and pressure towards compulsory migration for political reasons as referred to it by the TDC.


Other shortcomings relate to the appointment of TDC members and those of other specialized judicial bodies, the overlapping of powers among various bodies, and the absence of any budgetary allocation to the TDC for the year 2014.

 

Conclusion


Despite its shortcomings and constraints, the Transitional Justice Law can significantly influence the transition period in Tunisia and contribute to dealing with the legacy of the past and the preparation for a better future. This is contingent on the process remaining free from political and partisan meddling, and TDC members, including its chair, being granted full independence and authority.  

 

Civil society must also remain alert and diligent, monitoring the TDC closely so that the latter maintains the spirit of transitional justice. This spirit of transitional justice must be one that is fundamentally based on the values of justice, fairness, and human rights.


This article is an edited translation from Arabic.

 


 


References:

[1] Basic Law No. Issue 53, dated December 24, 2013. Al-Raed Al-Rasmi [Official Gazetteer], Issue No. 105, dated December 31, 2013, page 4335.

[2] For the Transitional Justice Law track, see Wahid Ferchichi’s: Transitional Justice in Tunisia Draft Law: A Unique Experience, The Legal Agenda, Issue No. 7, dated January 2013, page 16.

[4] A special section was included in the Dignity and Rehabilitation Fund for Victims of Dictatorship in the General Budget Law for 2014. This raised an extensive dialogue inside the political spectrum.

[5] See: Mohamed Afif Jaidi’s: The Legal Agenda, Issue No. 7, dated January 2013, page 18.