The Tunisian Parliament’s passing of the new Economic and Financial Reconciliation Law on September 2017 has created unrest among opposition parties as well as civil society actors.

Most of the opponents see the law as a disguised amnesty for leaders from the former Ben Ali regime. Zine El Abidine Ben Ali, president since 1987, was abdicated in January 2011 after an intensive civil resistance movement against increasing unemployment, food inflation, and corruption along with allegations of human rights violations. Six months after his exile he, along with his wife, was found guilty in absentia for charges including corruption and was sentenced to 35 years.

One of the most progressive acts of the new regime was the passing of a Transitional Justice Law in December 2013. It framed a comprehensive structure to address the violations of the former regime by revealing past abuses, providing reparations to victims, and pursuing criminal accountability for serious crimes.

Under this law, a Truth and Dignity Commission to investigate and report past abuses, along with a Specialised Chamber for the prosecution were established. Criminal offenses as well as financial corruption and misuse of public funds were a major focus. The Truth and Dignity Commission started hosting a series of public hearings to gather statements on 9 June 2014, and it has gathered more than 63,000 statements to date.

Meanwhile, the current Tunisian President Beji Caid Essebsi proposed the new Economic and Financial Reconciliation Law during his independence speech on 20 March 2015. This proposed law has provisions of amnesty for corrupt government officials and businessmen of President Ben Ali’s regime.

Activists in Tunisia and international human rights and anti-corruption groups have actively been opposing this law since its inception in 2015. The law was finally passed by the Tunisian parliament after raucous deliberations on Wednesday, September 13, 2017.

The new law would effectively bring the Truth and Dignity Commission and the Specialised Chamber totally defunct as no prosecution could be initiated against anyone who obtains amnesty through the “reconciliation commission” established under the new legislation.

According to Human Rights Watch, this law could be a final blow to Tunisia’s transition and effectively defeat the very purpose of the Truth and Dignity Commission, which has the mandate to investigate corruption.

Is trial mandatory for Transitional Justice?

The political landscape of a society that is transitioning to democracy from autocracy or emerging from conflict has a continuum of transitional justice mechanisms, which include trials (both international and domestic), truth commissions, amnesties, property restitution, reparations, lustration policies, public monuments, and apologies. Scholarly opinion varies on the effectiveness and viability of these various mechanisms; some argue in favor of criminal prosecutions or alternate mechanisms like truth commissions and some for amnesties.

Even though there are so many developments in transitional justice, amnesty laws still feature prominently in post-conflict and post-authoritarian setups. The majority are self-declared amnesties proclaimed by outgoing regimes so as to protect themselves in the post-conflict and post-authoritarian period. The legality of such self-declared unconditional amnesty laws is questionable.

The Special Court for Sierra Leone, for example, in the Lomé Peace Accord decision has deemed the unconditional and free pardon to all participants in the decade-long civil war as illegal.Unlike in Tunisia, the Lomé case was on the amnesty laws, which pardoned perpetrators who were facing trial under an internationally constituted criminal court. Nevertheless, the initiatives like the new Economic and Financial Reconciliation Law in Tunisia, which is passed by the subsequent regime are usually more acceptable in respective national jurisdictions and are not generally condemned as illegal unless it is too biased or nepotic.

Criminal prosecution and amnesty are not the only viable options in a post-conflict and post-authoritarian setup. A truth commission is also generally favored as a “third wave” between punishment and amnesty.

Truth commissions can be defined in light of the “Theory of Denunciation." Denunciation procedures are designed to engage offenders in an attempt to make them understand why their acts were criminal, while also reaffirming the norm in the community and educating society about the unacceptable nature of the conduct condemned, while also holding those responsible accountable. The Truth and Dignity Commission in Tunisia serves the objective of the Theory of Denunciation, as well as will have a deterrent effect, as the findings of the commission will be the basis of the prosecution by the Special Chamber.

Another interesting feature in the new reconciliation law in Tunisia is the provision for declaring the ill-gotten assets as a condition for amnesty. The government believes that this contributes to the country’s economic development. This is similar to the lustrations and property redistribution, which were the main mechanisms in formerly communist Eastern European countries' transitional justice. However, such attempts were controversial because they flew in the face of due process and were highly susceptible to corruption and manipulation.

In Tunisia, susceptibility to corruption and manipulation is also high, as the details of amnesty - including the declaration of assets - under this new reconciliation law, will not be made public. There are already allegations that those seeking amnesty and those currently in power are well connected, and there is high chance that this law will be misused to their advantage.

The anomalies of alternatives to trials in transitional justice, including the reconciliation laws, are evident from the above discussion. Most of the alternatives, though helpful in negotiating peace, send out a message of impunity to future violators.

The Tunisian reconciliation law passed recently does not provide any clause which mandates the authorities to declare the details of the people who seek amnesty including how much money they declare as ill-gotten. This will send out a message of impunity as there is not even a revelation of who all the culprits were and how much money they declared as ill-gotten for benefiting amnesty.

In all post-conflict and post-authoritarian setups, it is important to have some form of deterrence that has the potential to dissuade future violators by punishing the present ones. The new reconciliation law does not deter future violators nor does it deliver retributive justice for the victims in a fair and equitable manner.

Further, supporters of the new law would argue that prosecuting and punishing leads to political instability in newly democratizing societies like Tunisia. For them trials are detrimental to a stable democracy after the transition.  However, historically trials and truth commissions do not have a determining impact on the quality of the new democracy when observed some years after the transition could be an answer. For example, Barahona de Brito a transitional justice scholar asserts that "Democracy is just as strong and deep in Spain, Hungary, and Uruguay, where there was no punishment or truth-telling, as in Portugal, the Czech Republic, or Argentina, which did experience purges and trials."

Additionally, in the context of Latin American trials, there is no evidence that human rights and corruption trials undermine democracy. Further, the example of Argentina’s experiences today provides proof that trials can have neutral and arguably positive effects on democratic stability.

Hence, it can be very well resolved that the claim by the Tunisian government that the new reconciliation law will help in forging future democracy is not true as the success of a new democracy is independent of the transitional justice methods utilized.

Historically, in the majority of cases, domestic level mechanisms fail because of impunities brought about by mechanisms like reconciliation or amnesty laws. Often the most powerful authoritarian regimes either grant themselves amnesty or avoid legal prosecution through other means, and only the weaker outgoing regimes are eventually punished.

In some other cases, justice cannot be achieved because the violators continue to remain in power or strike deals with the subsequent rulers and shield themselves with immunities (e.g., reconciliation laws like in the present case). After all, the decision whether to punish or pardon a situation is largely constrained by the interest of the political elites of the state.

Hence it can be construed that trial for crimes in transitional societies like Tunisia is not only significant but also inevitable for proper delivery of justice, whether it is through trial or other mechanisms like truth commissions.

Giving blanket amnesty through a new reconciliation law without identifying and declaring the truth will not have a positive effect on the smooth transition and future peace process in Tunisia. Therefore, Tunisia should take immediate measures to annul the controversial new Economic and Financial Reconciliation Law and proceed with the trial of the corrupt under the former Transitional Justice Law.

Professor Sanoj Rajan is the ICCR India Chair Visiting Professor at CUHK Faculty of Law. He is also an Affiliate Expert with Harvard Humanitarian Initiative at Harvard University, Massachusetts, USA and an honorary Visiting Professor for the International Criminal Justice program offered by the International Christian University at Kinshasa, Congo. Before joining CUHK he was Professor and Dean at the School of Law, Ansal University, India. His other present engagements include the Founding Governance Board member for Statelessness Network Asia Pacific (SNAP), visiting faculty for International Law at Foreign Service Institute under Ministry of External Affairs, Government of India and Indian Society of International Law, New Delhi.

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