About the Working Paper Series:
This series of working papers is a response to the imperative for targeted expertise in support of constitution building in the wake of the Arab Spring. As one of the primary international institutions supporting constitution building in the Middle East and North Africa region, International IDEA commissioned leading international experts to produce research papers on specific issues of constitutional design that will need to be addressed by states in the region seeking more democratic institutional frameworks. International IDEA, together with Constitutional Transitions, has brought these papers together in this Working Paper Series.
Security Forces Reform for Tunisia
By Kent Roach
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This paper suggests that a new Tunisian constitution should provide for constitutional principles to govern the security sector. One of these principles should be the need to respect the rule of law. It is suggested that even qualified immunities for security sector actors and the president are in tension with the rule of law principle. Other relevant principles include the need to respect human rights recognized in domestic and international law including a free press and civil society. Courts should be able to determine the proportionality of measures taken to limit rights, including during emergencies, and some rights such as the right against torture should not be subject to limitation or derogation. Other relevant principles are respect of the non-partisan professionalism and neutrality of security sector actors, and proper funding and training of such actors. There is also a need for effective yet transparent governance. It is suggested that police forces and intelligence services should report to a cabinet minister as opposed to the president. Ministerial directives should be in writing, should not be inconsistent with organic acts for each security agency, and should be reviewed by a legislative committee. As under Article 245(4) of the Kenyan Constitution, such directives should not involve specific operational matters with respect to policing. The legislature should play a role with respect to appointments and review of the work of security agencies and these review provisions should apply to any new security agency that is created. Finally, a constitutionally protected independent authority should review the work of security agencies after the fact. It should have access to relevant secret information, but judicial approval should be required for the disclosure of such information.
Kent Roach is Professor of Law and Prichard-Wilson Chair of Law and Public Policy at the University of Toronto Faculty of Law. Professor Roach has been editor-in-chief of the Criminal Law Quarterly since 1998, and is the author of 12 books including Constitutional Remedies in Canada 2 ed (Canada Law Book, Toronto 2013; winner of the Owen Prize); Due Process and Victims’ Rights (University of Toronto Press, Toronto 1999; short listed for the Donner Prize), The Supreme Court on Trial (Irwin, Toronto 2001; also short listed for the Donner Prize); Brian Dickson: A Judge’s Journey, with Robert J. Sharpe (University of Toronto Press, Toronto 2003; winner of the Dafoe Prize) and The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, Cambridge 2011; winner of the Mundell Medal). He served on the research advisory committee of Canada’s commission of inquiry on the involvement of Canadian security officials in the rendition of Maher Arar and on Ontario’s commission of inquiry into the police killing of an Aboriginal protester. He was director of research for the four-year long commission of inquiry in the failure of Canadian security agencies to prevent the terrorist bombing of Air India Flight 182. He is currently a member on an expert group appointed by the Canadian Council of Academies on the future of policing.