Update: On Tuesday 31st July, President Moncef Marzouki announced that the state of emergency would be extended at least until the end of August. This is the seventh time the measure has been extended since 15th January 2011.
Since 15th January, Tunisia has been under a state of emergency. At that time the President had just fled the country and disorder was widespread. It was then difficult then to maintain the proper functioning of the administration, to ensure national security and to continue to live normally. Since 15th January 2011, elections have taken place, a new assembly, a new government and a new President have been installed. The buildings used by the internal security forces which had been ravaged have been restored to working order, the country is moving forward, and yet, seventeen months after 15th January 2011, Tunisia is still living under a state of emergency. And what people seem to be unaware of is that this is a question of a restrictive regime which is suspending normal rules and denying its citizenry certain freedoms. An analysis of the situation.
It is in cases of “imminent danger” that a state of emergency is called. This, in any case, is what is explained by Decree 78-50 of 26th January 1978. In article 1 of this decree, it is explained that:
“a state of emergency can be declared over all or part of the territory of the Republic, due either to imminent danger resulting from serious attacks on the public order, or as a result of events which, in their seriousness, can be said to constitute a public disaster”.
On this basis, the Interior Minister and governors are able to prevent the free movement of people and vehicles, ban strikes, regulate people’s stay of residence, carry out requisitions, put people under house arrest, forbid any meetings which have the potential to cause disorder, carry out search orders both day and night, control the press, radio, television, cinema and theatre. As Rachida Ennaifer, university professor and specialist in comparative constitutional law, explains,
“The state of emergency gives the Interior Minister and the governors, who enjoy a monopoly on violence in the region, a wider range of possible actions designed to restrict certain freedoms. In reality, there is no need to go this far. The law of 1969 relating to crowds or decree 115 on the press could have been used, for example. As such, rather than implementing a general state of emergency, they could have made decisions on a case by case basis. The Interior Minister does, in fact, have a wide margin of manoeuvre when it comes to reigning in certain freedoms.”.
A sort of carte blanche whose use can be justified in extraordinary circumstances but which, in light of the current situation, seems excessive.
Therefore there is a possibility that certain freedoms are restricted but, in actual fact, the state of emergency in Tunisia is not rigidly applied. So why not limit oneself to a government decree temporarily modifying the function of the army by authorizing them to work in concert with the internal security forces? Even if we don’t live day-to-day in a state of emergency the risk of a drift towards authoritarianism remains and we do not want to wake up tomorrow morning to find that the press have been gagged and that we are not longer allowed to roam freely in the streets.
Because the main risk of such a drift is that which relates to these freedoms. The state of emergency is a situation which suspends certain guarantees normally enjoyed by the citizen. To ensure that excesses in the implementation of this law, the UN drew up an International Agreement relating to civil and political rights in 1966. This was an agreement designed to control states of emergency, meaning the measures taken by states cannot, in fact, be discriminatory: “The proclamation of a state of emergency does not permit the derogation from certain fundamental rights and absolute prohibitions, including, in particular the right to life, the prohibition of torture and inhuman or degrading treatment, slavery, servitude, freedom of thought, conscience and religion”. Moreover, States must commit to making public the clauses from which they have deviated as well as the reasons for such deviations.
Tunisia ratified this agreement in 1968, which might seem to represent a first defence against the risk of an authoritarian drift. It’s nothing of the sort. In reality, this agreement simply makes it possible to lodge a complaint against certain facts relating to decisions that have been made, not to call into question the state of emergency itself. This, in any case, is what Rachida Ennaifar explains. In response to this risk of an authoritarian drift on the part of the government, she states:
“within the current situation, the ANC (National Constituent Assembly) controls the government by means of a motion to censure and can force it to resign, it can also remove the President of the Republic from office or file a motion to censure against a minister. Thereafter it’s a majority at the ANC which will have to put in place new governors”.
Therefore there needs to be a union and consensus for an absolute majority to emerge so that a new government can be put in place, which seems to protect against one party taking hold of the country.
One more aspect to keep an eye on: the conditions for the implementation for a state of emergency. It must, in fact, be lifted when the conditions for its implementation no longer apply. Assuming that it was, in the beginning, the absence of a president which made it necessary to implement a state of emergency, one should now question why this has continued given that elections have now taken place and a new government and President have been installed.
In reality, a state of emergency has been announced several times and, quite possibly, each time for different reasons. On can then only assume that it is the worsening security situation in the middle of the country which has made it necessary to reinstate the state of emergency. And yet it was Khaled Tarrouche, head of the office of communication and information at the Interior Ministry, who only one month ago told Nawaat.org that the security situation in the country was getting better and that this was down to the work being undertaken by the security forces in concert with the national army, which, according to him, was providing considerable support and making it easier for public establishments, for example, to be secured.
Therefore, if we are to believe the Interior Minister, all is well in Tunisia. The President’s Office sounds the same note with Imed Daïmi, director of the Office of the President, explaining that “The fact that we are in a state of emergency does not mean there is an imminent danger or that the security situation is bad”. So what is there left justifying the continuation of the state of emergency in Tunisia, if the conditions of its original establishment no longer apply?
It appears that it was the security situation at the borders which, back then, was posing problems. As Imed Daïmi explains “The army plays a large role in securing the borders because there is some still turbulence on the border with Libya with possible arms trafficking, for example”. The fact remains, however, that if the only “imminent danger” comes from the borders of the country, being still in a state of emergency seems somewhat excessive. Indeed, giving all powers to the Interior Minister because the situation in Libya is still strained, is disproportionate since it means, in theory, that the free movement of Tunisians could be suspended or cinemas closed, for example, because the Libyan government hasn’t managed to regain order on its own soil. To get at the truth of this situation, it helps to recall the fact that Algeria existed for twenty years under a state of emergency. Its security situation did, indeed, leave something to be desired. Yet, for all that, no state of emergency was ever declared in Tunisia because of this fact. In other, words, the excuse of the Libyan situation seems tenuous.
If, as the Interior Ministry and President’s Office explain, there is no longer any imminent danger or event that could be classified a disaster, why are we still, 17 months after 15th January 2011, in a state of emergency? Such a system has been implemented (announced or extended) six times. So, by looking at the example of our Algerian and Egyptian neighbours, we can question the truth of the situation and the possible ways out. It was in 1992 that a state of emergency was announced in Algeria to “fight against Islamist guerrilla elements”. It was not to be lifted for a further twenty years, in February 2011. Egypt, for her part, lived under such a system for thirty years, it having been enforced in 1981 and lifted only a couple of months ago.
What is more, by looking more closely at the situation it becomes apparent that the internal situation is not all that clear. In June, riots broke out over an art exhibition in Palais Abdellia. In spite of the concerted efforts of the security forces and the army, public order was not assured. Courthouses and police stations set on fire, hundreds injured and a curfew introduced (a curfew which didn’t seem to frighten anyone since many continued to go about their affairs outside well beyond/after 10 p.m.). A state of emergency which doesn’t make it possible to prevent such events, nor control them, nor properly apply justice after the event doesn’t really seem to merit being there in the first place.
A state of emergency, but what to do about it?
Rachida Ennaifar makes clear that this is a matter of real concern:
“What worries me is that we might be normalizing what is, in fact, an abnormal situation. The most serious thing would be that we enter into a situation in which people become accustomed to the state of emergency, meaning it could be properly applied and we won’t be able to do anything about it as it will be permissible under law. We may well be heading towards this normalization of an abnormal situation: it’s a law which does not serve the Rule of Law, a Rule of Law which should guarantee basic freedoms, a Rule which should rest on a laws respecting these freedoms”
It is the case that, were this law to be implemented on a permanent basis, the citizens can try to launch an appeal to the Administrative Court. The decree relating to states of emergency states, in Article 3, that the state of emergency can only “be extended by a decree which fixes a definite duration” in order that this state does not become permanent. An “imminent danger” is, by definition, something that is supposed to happen in the near future, making it somewhat difficult to justify this system being implemented in the long term. One wonders then whether the wording of the law has been misappropriated.
According to the information provided by the Administrative Court, an appeal could be launched but there is no guarantee of it being successful. Indeed, before analysing the facts, the judge must evaluate the appeal to judge whether it is justified. The fact is that in order to skirt around the issue at hand, the judge can rule on technicalities and, particularly, on the motivations behind the appeal. It then becomes a political issue and a loaded societal debate. And it is difficult to imagine the Administrative Court getting involved in such a debate. As such, the judge can rule that a citizen does not have sufficient reason to appeal. It will be argued that the citizen is not in position to gauge the security situation in the country and, presenting his/her argument in a theoretical way while, opposite him/her, the authorities and the administration base their stance on concrete facts, we will see that all of The Office of the President, the First Ministry, the Defence Ministry as well as the Interior Ministry are able, with supporting facts and figures, to evaluate the country’s security situation and thus define what is meant by “imminent danger”. The debate, which should focus on the question of whether a temporary measure can become permanent will become inaccessible because all attention will fall on the preliminary issue of whether a citizen is, in him/herself, capable of evaluating the security situation in a country.
The other issue which comes out of this debate has very much to do with the notion of democracy itself: is the citizen able to call into question a decision taken by the government, that is, a decision taken by those who are elected by the people. In an ideal democratic system one can surely assume that the people must have the power to make themselves heard and impose their will.
If the state of emergency is not really applied but remains, like a sword of Damocles, above the heads of the citizens, it should be understood by the population as the act of a regime trying to instate a sense of psychological insecurity. For his part, Imed Daïmi thinks the opposite: “before the revolution, Tunisians didn’t like seeing the police and the army in the street. Today, psychologically, it’s something that reassures them”. We can nevertheless ask questions about the psychological impact of seeing tanks and armed soldiers on Avenue Habib Bourguiba for what has now been a year and a half.
As such, all views considered, the state of emergency can be seen as either a psychological support or a sword of Damocles hanging over the heads of the citizenry. But the questions remains; if there is no imminent danger and the country seems to be functioning normally again, why are we still living under such a system?
As Rachida Ennaifer explains:
“In the end one wonders whether the government has had trouble democratically managing the security question. Political power is swaying between two solutions: either it goes back to the practices of old, which were very authoritarian and undemocratic, or it leaves the situation as it is and refrains from trying to reimpose order and it becomes chaos. It is nevertheless difficult to understand the benefits of having a state of emergency. One can only try to imagine what the situation would have looked like had such measures not been implemented”.
With or without a state of emergency, the situation seems to be the same. Events of late are evidence of this. Neither the population nor the public good has been protected, yet it’s not like there are huge numbers of delinquents running about our streets when we take into account the number of security officers in position, all over the place, throughout the day. Would the situation be worse without a state of emergency? Or would it not be more beneficial to dissuade people from sowing disorder? Or to try to encourage a state of calm while our governors are still learning to govern?
Whatever the case may be, the state of emergency cannot be permanent and, according to Imed Daïmi, it should be lifted soon: “the presence of the army is reassuring for the people of Tunisia but does risk producing the opposite effect on tourists”. With all the consequences that such an effect entails. The end of the state of emergency does depend, in the end, on one person: the President of the Republic. Since, due to the structure of government authorities, it’s the authority which implements certain measures which also has the power to lift them. The president implemented a state of emergency by decree, setting a definitive time-frame for this measure. As such, the state of emergency should be lifted on 31st July, unless the president, by a new decree, extends it once again.
Moncef Marzouki did, in the end, address this issue and declared that the State of Emergency was soon going to be lifted. But if, on 31st July, in the absence of any clear explication of this “imminent danger”, the state of emergency is still not lifted, it is in our right to wonder whether the government is not trying bring the people to heel. Another theory, which is just as gloomy, is that there does exist a real danger in Tunisia, the nature of which the government is unsure yet, lacking the knowledge of how to handle it, does not want to panic the public with its details. Indeed, in light of official statements and the security risks put out by the USA, Belgium, Switzerland and Canada during the month of May and the riots which broke out over two pictures, one might well ask whether Tunisians really know the truth of the security situation in their country.
Translation by Christopher Barrie from the original French article.