April 13, 2015
Tunisia
is gearing up for profound reforms as it approaches constitutional deadlines to
overhaul its entire judiciary system, which has been reluctant to reform. Since
the 2011 uprising, none of the interim governments had dared to undertake real
changes to the judiciary—which still employs many old regime figures. The
constitution, adopted in early 2014, finally paved the way for an organized
change by reshaping the judges’ council and introducing a constitutional court.
These two institutions are poised to be established by year’s end.
The
Supreme Judicial Council will be an independent body that will decide on
promotions and advise lawmakers on any reforms that concern the judiciary
framework. Parliament has to vote on the law constituting the council within
six months of parliamentary elections. The deputies therefore have until the
end of April to discuss the draft law proposed by the ministry of justice on
March 9. However, some of Tunisia’s judges, who claim that their
recommendations had not been taken into account by the minister, have
criticized the law for undermining the judiciary’s independence, among other
concerns. The Tunisian Judges Association and the Union of Judges went on
strike for a week in early March to protest it. Meanwhile, Minister Ben Aissa
defends the law, saying that for the first time the council is guaranteed a
democratic composition. According to the new draft law, a majority
of the members of the council will be elected by the judges themselves, rather
than being named by the head of state, as was the case before. This should
prevent politics from having too much influence over appointments and guarantee
that the judiciary stays far away from everyday political disputes.
Only
after the Supreme Judicial Council is formed can Tunisia establish the
Constitutional Court, as the council, the president, and the parliament will
each name a third of its members. Once formed, the court will have a difficult
task. It will have to harmonize existing Tunisian law with the principles of the
new constitution, which itself already contains a number of conflicting
articles. In addition, the court will have to determine the legal role of a
number of international treaties that Tunisia has ratified but are not—or only
partly—applied in practice, such as the Convention on the Elimination of all
Forms of Discrimination Against Women (CEDAW). Article 20 of the new
constitution states that
“international agreements approved and ratified by the Assembly of the
Representatives of the People have a status superior to that of laws and
inferior to that of the Constitution,” an uncommon practice that will likely be
challenged in court.
Upcoming
judicial reforms will have significant impact on the implementation of laws set
to be passed by parliament, including the anti-terrorism law, gender equality
laws, and laws related to migrants’ rights. How these laws are handled in
courts will have significant ramifications for the country’s jurisprudence. For
example, while the constitution guarantees gender equality, the existing
Personal Status Law does not. Likewise, although Tunisia has ratified a number
of agreements on the rights of migrants, there is no law addressing asylum
seekers, only migrants who enter the country legally. Similarly, cases related
to terrorism might bring the court to debate the limit between freedom of
expression and the right to freely practice one’s religion or protect private
life. These are sensitive topics, especially in light of what President Beji
Caid Essebsi called a “merciless” fight
against terrorism.
In
addition to structural reforms, operational reforms are also needed. Some
judges point out a heavy workload and bad working conditions in the interior
provinces. It was common practice under the old regime to transfer judges critical
of the regime to interior provinces, as was the case for Kalthoum Kennou, one
of the candidates for the presidential election in 2014. Even now, being on
duty in the provinces is seen as a punishment, and establishing a professional
and independent judiciary outside the capital will be another challenge of the
coming years. In addition, contrary to the other types of courts, Tunisia
currently has only one administrative court (in the capital Tunis), even though
each governorate is supposed to have one.¹
Structural
reforms are just one of the many tasks facing the branch, and disagreement
among the judges about the composition of the Supreme Judicial Council
indicates how contentious the tasks ahead are. While the reforms of the
framework are going ahead as planned, changing the mentalities among the more
reform-resistant judges is likely to take years.
This article is reprinted with permission from Sada. It
can be accessed online at: http://carnegieendowment.org/sada/2015/04/10/judicial-reforms-in-tunisia/i68v
Sarah Mersch is a
Tunis-based freelance journalist.
1.
Interview with Hasna Ben Slimane, a magistrate at the Administrative Court.