Editor’s note: The Tunisian legislator would not have adopted a progressive understanding of the right of access to information consistent with the spirit of Chapter 32 of the Tunisian Constitution, were it not for the efforts of civil organizations in that regard. Many organizations continue to play the same positive role through their struggle to compel political authorities to implement this law, including the setting up of institutions required for these laws to be implemented. Highlighting the outstanding work of these organizations, as The Legal Agenda seeks to, is a means of countering the distortion campaigns they are subject to.

For the first time in its history, the Tunisian legislator regulated the “Right of Access to Information” in Decree No. 41 of 2011, dated May 26, 2011.[1] The legislative recognition of this right in its infancy was linked to the revolutionary movement and the climate of freedoms it introduced. However, the founding text of this conceptual revolution shows that the transition from the stage of blocking information to that of recognizing the right of the people to oversee public authorities through accessing public records was difficult. The decree contained extensive exceptions which hollow the principle out of its desired effect, not to mention that the new legislative system was not equipped with mechanisms to facilitate its execution.[2]

Thus, the recognition of the right of access to information could have ended up as a mere slogan of the Tunisian revolution due to the shortcomings in the legal text, and the strong resistance it faces. Nonetheless, the emergence of active civil organizations working to render this right applicable has radically changed the status quo. Al-Bawsala and I Watch are two of the most prominent organizations that played an important role in the development of the exercise of this right in two stages.

Al-Bawsala Association was established in 2012. Its aim initially was to monitor the activity of the National Constituent Assembly (NCA) in order to inform the public about it. Members of the NCA objected to the idea of ​​this Association. They regarded it as a political plot aimed at inciting public opinion against them. Some NCA members went as far as demanding the dissolution of the association under the pretext that it engaged in acts of transgression against deputies.

During its struggle with the Constituent Authority, Al-Bawsala raised the banner of defending the right of access to information, benefiting from media and the public opinion follow-ups whenever it released information. The Association at one and the same time advocated this right, and benefited from exercising it. MPs and their parties paid more attention to the statistics that Al-Bawsala published on the rate of attendance of NCAs in the committees, and in public sessions in light of the impact these statistics were having on public opinion. As a result, the nascent Association became a key player in NCA politics with its ability to uncover and reform the flaws. Some observers credited it with influencing the drafting of the Tunisian Constitution.[3]

Eventually, members of the NCA who did not hide their opposition to publishing date on legislative activity ratified Chapter 32 of the Constitution. With this ratification, the state was obligated to guarantee the right of access to information. It should be noted that this same Council, and until the end of its mandate, did not give this right to Al-Bawsala. The latter had to sue the NCA before the Administrative Court, demanding the records of its meetings. The entrenchment of this constitutional right was a victory for those who fought for it. However, continued reluctance to accept it in practice was an indication of the difficulty of its application.

Tunisian Parliament Speaker Mohamed al-Nasser sought to impose new rules against Al-Bawsala’s activities under his mandate. He attacked it and accused it of insulting the MPs when it claimed that they did not attend their meetings.[4] The Association managed to deflect the attack by questioning the credibility of the MPS’s source in the media.[5]

For its part, I Watch[6] was another organization that worked to enshrine the right of access to information, and put it into practice within that same institutional context that suffers from preaching what is not practiced. During the period between the beginning of September 2015 and September 2016, I Watch submitted 100 requests for access to information to administrative and government structures, and institutions. The organization used the media to highlight the importance of the documents to which it demanded access in order to to expose corruption and achieve transparency of administrative procedures. It also resorted to the administrative judiciary in 18 cases to have its demands met.

The actions of civil organizations in this regard obligated the government to expedite the submission of the basic draft law on access to information to parliament. The bill contained exceptions to the principle in order to limit its scope of application.[7] The civil organizations fought the government's approach. For a whole year, they launched a media war against what they considered to be an attempt to overthrow the Constitution. The involvement of the National Union of Tunisian Journalists in that confrontation had a significant impact on the performance of members of both parliament and the government. The showdown ended with the government and the parliamentary majority caving in to the demands of civil organizations. The latter thereby succeeded in enforcing a legislative text which truly respects the right of access to information. Thus, the ratification of Basic Law No. 22 of 2016 on Access to Information was an important victory for the Tunisian youth movement which was born under the revolution and struggled to impose its values.[8] However, the importance of that legislative gain and the continued pursuit by authorities to limit its scope of implementation prompted civil organizations to continue the campaign, to push for enforcing the right of access to information.

Demands to Activate the Access to Information Institutions

The access to information law gave official bodies a year’s time to establish the Access to Information Commission. Such a body will play a key role (both supervisory and judicial) in ensuring the effective exercise of this right, and enabling public institutions to consolidate the system of the dissemination of information. The Legislative Council did not abide by the timeline it gave itself, as no members of the Access to Information Commission were elected. Moreover, a significant number of public institutions and administrations were not receptive to that law and did not establish their own database accessible to the public database by the end of the legal grace period. Once again, civil society took action to force the state to abide by its laws. The media became a platform to draw attention to the seriousness of the violation. The media called for the speeding up of the establishment of the commission. I Watch went as far as monitoring and exposing the institutions that have not set up their own websites. The presidency itself was at the forefront of these institutions.

This article is an edited translation from Arabic

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[1] Decree No. 41 of 2011, dated May 26, 2011, on access to administrative documents of public structures.
[2] Articles 16 and 17 are about the exceptions concerning the exercise of the right to access information. Chapter 1 reads: “A public body may refuse access to an administrative document that is protected by the legislation in force, in particular the Law on the protection of personal data and literary and artistic rights, or under a judicial decision, or if the respective document provided to the public body was classified as confidential”. Article 17 reads: “ The public body may refuse access to a document if the disclosure thereof may prejudice: the relations between states or international organizations; the status or the development of an effective government policy; public security or national defense; detection or prevention of crimes; arrest and trial of defendants; the smooth functioning of justice and the respect for fairness and the transparency of procedures of public procurement; and, the deliberation procedures, exchange of opinions and viewpoints, examination, testing, or legitimate commercial or financial interests of the concerned public structure”.
[3] See: Page 17 of the report on the Constitution -the process of drafting the Constitution in Tunisia 2011 to 2014- The Carter Society which provided details about this experience, highlighting the role of civil society in the drafting of the Constitution.
[4] See: Sarhan al-Shaykhawi’s, “ʿala Khalfiyyat Nashreha Nisab al-Ghiyabat, Harb Kalamiyya Bayna Majlis al-Nuwwab Wa Jamʿiyyat Bawsala”, al-Chourouok Tunisien, April 25, 2015.
[5] The President of Al-Bawsala replies in an open letter to Muhamed al-Nasser; see at:  www.hakaekonline.com , April 25, 2015.
[6] An anti-corruption association established in March 2011, but its activities progressed significantly in early 2014 after being considered as a focal point for Transparency International in Tunisia.
[7] Article 26 of the draft law stipulates that the public structure may refuse access to information that may prejudice: 1. The confidentiality of negotiations; 2. National defense; 3. Foreign policy; 4. State and individuals security; 5. Economic and financial policy of the government; 6. Judicial proceedings; 7. Investigation and prevention of crimes; 8. Freedoms and fundamental rights of individuals; 9. Private and public commercial and financial interests; 10. The course and results of oversight tasks; and, 11. The clandestine nature of the identity of persons who provided information to the public structure to report violations or cases of corruption.
[8] See: Amal al-Makki’s, “Almosadaqa ʿala Qanun al-Nafadh Lilmaʿlooma, Maʿraka Ukhra Rabihaha al-Mojtamaʿ al-Madani”, March 16, 2016; see at:  www.jamaity.org.