CPR Deputy and lawyer, Samir Ben Amor argues that, though he might not agree with the radically conservative Islamist party, Hizb Al-Tahrir the government’s attempts to use the Military justice system to ban the group risks Tunisia’s emerging democracy and undermines the rule of law.
Why do we refuse to involve the military court in Hizb Al-Tahrir’s case?
The Tunisian government has recently undertaken a number of decisions to eradicate the radical Islamist political party Hizb Al-Tahrir, risking the establishment of a dangerous precedent that threatens the core principles of democracy and the rule of law.
The government banned Hizb Al-Tahrir from holding its annual conference on the 28th of May, 2016. At the time, the government justified the decision by referring back to clause number 4 from 1969, which outlines political parties’ general meetings, as well as clause number 50 from 1978, which discusses national curfew cases. However, just a week later the government’s decision was overturned due to the legal sanctioning allowing Hizb Al-Tahrir’s activities. The overturn was based on chapter 5 from clause 87, 2012, which states “it is forbidden for public authorities to interrupt a political party’s activity directly or indirectly.”
The government was then granted permission in August 2015 by the High Judge of the Primary Court in Tunis to suspend the activity of the party. This decision was then overturned following an emergency appeal in the Primary Court in Tunis. The government subsequently chose to present Hizb Al-Tahrir’s case to the military court, which was a surprising move to the supervisors. Some parties considered the decision an “attack” on the country’s legal framework and its democratic institutions.
How is appealing to the military court an attack on the country’s legal framework?
The Constitution of January 7th 2014 specifically limits the powers of the military justice system. This sought to change the previous dictatorship’s tendency to use the courts for its own political ends. Chapter 110 from the constitution states that “the different categories of courts are created with laws. It is forbidden to create an exceptional court, or to issue exceptional decisions that can threaten the basis of a fair trial.”
The purpose of military courts is to adjudicate on exclusively military cases. The law clearly outlines their area of specialty, the procedures and the main structures for their judicial sentences. Settling government disputes through a military court undermines the principle of a fair trail, as it abuses a branch of the judiciary with particular decision-making powers outlined by the constitution. The judges lack independence since they operate under the auspices of the Minister of Defense, who controls their careers by using the prospect of promotion or the fear of punishment. This decision thus violates the constitution and the international standards the Tunisian government agreed to abide to as a newly democratic country and as subject to constitutional laws.
How is involving the military justice court a threat to democracy?
Involving the military court in this case is one of a series of violations the government has undertaken with regard to Hizb Al-Tahrir, from banning its annual meetings to removing their banners and closing their offices, even after the court had granted the party freedom to continue their actions as long as they refrained from spreading violence or hatred.
The government is, as a result of this decision, challenging many of the country’s constitutional laws. Using the military court was a common tactic under the autocratic regime of Ben Ali, as this was an easy way for him to dispose of his political enemies. In a sense, this similarity highlights the dictatorial tendencies of the decisions undertaken by the existing government.
The government claimed that Hizb Al-Tahrir’s annual conference would pose a threat to national security; an argument dismissed by the administrative court, noting that previously the government had protected many protests and conferences, despite receiving dangerous threats, such as by the Jewish pilgrimage in el Ghriba. This demonstrates the underlying inconsistency in arguing the case that the Hizb Al-Tahrir’s annual conference could pose a threat to public safety.
What is most concerning is the individual who requested that Hizb Al-Tahrir’s activity be suspended is the Head of Government’s principal representative in Parliament. The request to suspend the party’s activities was justified on the grounds that the “the party was encouraging people to revolt against all political parties, especially those in the parliament who Hazb Al-Tahrir see as receiving orders from the West”. Hizb Al-Tahrir, on October 27 2015, sent out a direct and public invitation to change the structure of the government, used to guise their true intentions of overthrowing the existing government.
The official spokesman for Hizb Al-Tahrir said all the decisions taken against the party originated with Ministry of Religious Affairs, after the party was found to be operating a mosque without legal permission. Hizb Al-Tahrir claimed that, as a result of this, the Ministry had declared war on the Muslim nation and had reverted to torturing the faithful, as well as innocent Imams.
Regardless of their motives and intentions, the claims the government had presented were ultimately rejected by the court, demonstrating the unconstitutional nature of the decision, founded on political and ideological motives that seek to punish the party for opposing the government. The decision violates the constitution, especially the right of opinion, expression and the political activities of parties.
Resorting to the military court shows the government has already decided the sentence it seeks to impose on Hizb Al-Tahrir. This is especially evident after the civil court, the protector of freedoms, previously refused to carry out the government’s decisions designed to either suspend or end the activity of the party, underpinning dictatorial approaches in the government’s conduct. We cannot let this slide, whatever their arguments might be. We would like to take this opportunity to call on the Parliament to quickly pass bills that specify the limits of the military justice system and its judges, so as to enforce the new constitution and prevent the government from resorting to unconstitutional means in order to dispose of its Islamic opponents.
Samir Ben Amor is a lawyer and a deputy for the political party, Congress of the Republic, (CPR). Ben Amor was arrested under the Ben Ali regime in 1992 and imprisoned until 1993. Following his release from prison he became a lawyer and from 2002 has served as Secretary General of the International Association to Support Political Prisoners