ARTICLE 19 considers that Circular no.4 dated 16 January 2017 issued by the Head of the Government, regulating the operation of information and communications units in ministries, State institutions, and companies, puts at risk the right of access to information, as point 1 of the Circular violates provisions of Article 32 of the Tunisian Constitution and Decree no.41/2011 related to access to the administrative documents of public structures, as well as provisions of the new law no.22/2016 dated 24 March 2016 concerning the right of access to information.
“This circular represents a threat to freedom of expression and information in Tunisia and may impede the work of journalists and limit citizens’ free access to information on the management of public entities,” said Salua Ghazouani, Director of ARTICLE 19 in Tunisia.
ARTICLE 19 considers that the regulation of information and communication units should not be used as an excuse to restrict freedoms and limit the work of journalists. In this framework, ARTICLE 19 believes that any regulation of government work should take into consideration constitutional provisions, specifically Article 32, which sets out the State’s responsibility to guarantee the right to information and access to data and its obligations under international law. This circular cannot in any way be contrary to legislation currently in force and shall not restrict the exercise of rights and liberties, which would constitute a violation of Article 40 of the new Tunisian Constitution
In addition to the legal violations contained in the text, this circular raises a symbolic issue. One year has passed since the adoption of the law on access to information but its application decrees are not ready yet and the commission in charge of access to information has not been set up, even though it is supposed to be operational by next March.
“Most public institutions have not yet enacted provisions of the law and their obligations related to the voluntary publication of information, data and documents, or responding to access to information requests. In response to this, the government had to issue a Circular asking civil servants to comply with the law and confirm this right and not to impede or limit access to information, or to hide data that should have been voluntarily published. This raises doubts about the existence of real political will to guarantee this right” said Ghazouani.
ARTICLE 19 endorses calls from civil society and the media to withdraw this Circular and calls on the Tunisian Government to show positive commitment and reinforce the right of access to information by enforcing the organic law, issuing the law’s application texts, and setting up the commission in charge of access to information within deadlines prescribed by the law, while providing it with all tools and means for the proper execution of its tasks.
We note that in its first point, this Circular asked civil servants to refrain from “making statements or interventions, or disclosing official information or documents in the press or by any other means, related to their functions or to the public structures they work for without the preliminary and explicit authorization of their hierarchy or the managers of structures employing them.” This clearly represents a violation of one of the rights immediately recognised after the 2011 Revolution by promulgation of Decree no.41/2011 related to access to the administrative documents of public institutions, later reinforced to become a constitutional right in 2014. Its scope of application was extended and guarantees were further reinforced after ratification of the new organic law no.22/2016 dated 24 March 2016 related to the right of access to information. The publication of this Circular raised a large debate among the Tunisian public and the considerable disapproval of journalists, human rights advocates and civil society activists, because of the real reasons for its publication and the ambiguity of its provisions.