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
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