On the initiative of some one hundred deputies of the Assembly of People's Representatives, a draft organic law on the organization of the notary profession has been filed since December 7, 2023 under number 41/2023. It was submitted to the Legislation Committee on February 24, 2024, which last week began hearings on this text and the draft organic law on the organization of the profession of tax advisors.

The 118-article text aims to provide a framework for this ancient profession, which has survived several legal regimes throughout Tunisia's history. The notarial institution is intimately linked to human rights and fundamental guarantees. However, this project - the most important since law no. 60/1994 of May 23, 1994, currently in force - seems deeply affected by the populist and liberticidal winds that have been blowing over Tunisia since July 25, 2021, so much so that it contains threats and violations of human rights gains for Tunisian citizens. Here are just a few examples:

Violations of liberties, privacy and personal data protection: the notary's office transformed into an intelligence service

The list of new exclusive prerogatives granted to notaries by the draft is excessive: it covers all types of contracts. This desire to exclude other professions can be interpreted as the expression of a corporatist conquest. But article 26, which lists these vast contractual domains, conceals a clientelist offer to the powers that be: granting notaries exclusive competence means prohibiting parties from contracting freely.

The quid pro quo for this exclusivity can be found in the motivations for the project, drawn up or adopted - at any rate - by the chamber of notaries. It states in black and white that notaries propose to benefit from these exclusive powers in exchange for cooperation with the tax and administrative authorities. This proposal is formulated in a totally unabashed manner: paragraph 3, page 5, states that "the drafting of real estate lease and rental deeds, in particular in the form of an authenticated deed, makes it possible to gather valuable information on tenants, their status, their nationality and all information relating to their identity and the duration of the lease, which may constitute valuable data for the security authorities and useful for the prevention of terrorist crimes, when these are informed by the notary drafting the contract."

Nothing could be more explicit: the noble profession of notary would be reduced to an instrument of security surveillance, where the data of customers - suspected terrorists, money launderers or tax evaders - would be collected and then transmitted to the authorities, in violation of individual freedoms, the right to privacy and the protection of personal data, sacrificing the notary's professional secrecy (dealt with incompletely in Article 52 of the draft) for the benefit of a police state.

Women's, family and children's rights

Among the many powers listed in article 26 of the bill is a provision that calls into question all the gains made by Tunisian women, families and children. In a few words, this draft destroys decades of emancipation, in flagrant contradiction with all constitutions, including that of 2022. Article 18 enshrines family rights, article 51 requires the State to preserve and promote women's rights, and article 52 enshrines children's rights. Not to mention the principles and provisions of the Personal Status Code, which regards judicial divorce as a matter of public policy, including from the point of view of public international law.

This project seems to revive the spectre of repudiation, with all the drama and trauma it entails for women, children and families. It reduces marriage to a mere contract, denying its essential social dimension. This hidden form of repudiation is contrary to family law and order, yet it is not justified in any of the reasons given for the bill.

Could this be a new episode in the tumultuous relationship between the Tunisian notariat and women's emancipation? Back in the last century, notaries struck off their colleague Tahar Haddad for ideas deemed contrary to religion and tradition. But his reformist ideas eventually triumphed, notably in the Personal Status Code, which excluded any role for notaries in divorce proceedings. Is this project a revenge? Whatever the case, it constitutes a real threat and an attack on the principle of non-regression of women's rights, enshrined in article 51 of the Constitution, as well as on human rights in general, as protected by article 55, which imposes the principle of proportionality in any restriction of rights. Increasing the turnover of notaries - assuming this is necessary - cannot justify the destruction of fundamental rights, especially those that underpin the modern Tunisian state.

Infringement of the right of access to justice

This right, guaranteed by both the Constitution and international conventions, is also violated on several levels in this project. On the one hand, through the enforceability of notarial deeds; on the other, through the obstacles erected against litigants wishing to challenge notarial deeds or procedures.

Article 44 makes notarial deeds enforceable; article 45 even allows notaries to enforce their own deeds and issue enforceable copies. In the event of a dispute, there is no need for a judgment: the creditor can demand immediate execution of the contract, regardless of any dispute. This calls into question the very essence of justice. How can a notarial deed anticipate all possible disputes, without infringing the rights of the parties? Not to mention the cases where immediate execution would be difficult to reverse, even in the event of a subsequent court decision annulling the deed.

Another serious impediment: article 66, paragraph 2, requires a person bringing an action against a notary to pay a deposit of 10,000 dinars to the General Treasury, which is non-refundable unless the notary is finally convicted. This provision, wrongly inspired by procedures specific to lawyers, is clearly unconstitutional. It violates the right of access to justice, presumes the bad faith of the complainant, and offers unjustified impunity to notaries - impunity not even enjoyed by a Prime Minister or a member of the judiciary.

Article 69 goes even further, prohibiting the client from contesting the order of the president of the court of first instance concerning payment of the notary's fees and expenses. This deprives the litigant of his right to review decisions, and opens the door to arbitrariness and corruption.

Lastly, article 83 provides for the Ordre des notaires to rule on both complaints and disciplinary sanctions. This combination violates the right to a fair trial, both for the customer and the notary. Disciplinary functions fall within the remit of the public authorities, especially when the notary is considered - as article 1 of the draft recalls - as a public officer. This status, moreover, contradicts the qualification of independent profession, affirmed in the same article.

National organizations, civil society associations and legal experts have issued numerous condemnations of this project, which betrays the crony opportunism of notaries apparently unanimous in their support for these regressions. The few notaries committed to the principles of human rights are either not heard or silenced. Notaries seem to prefer rent-seeking privileges to the fundamental principles of human rights.

This project could well be another stab in the back for human rights in Tunisia. It is to be feared that no responsible voice will be raised within the Assembly to stop this drift.