The Constitutional Design of the Judiciary in Tunisia: Post-Arab Spring

Amel Arfaoui

Administrative Court of Tunis

Tunisia is the only state in the Arab world that has managed to make a democratic transition from the Arab Spring: for this reason, it may be of special interest to constitutional scholars to understand how Tunisia has proceeded to constitutionally ensure the independence of the Judiciary. Prior to the Arab Spring, courts in Tunisia were often used as instruments of authoritarianism, occasionally also a site of resistance: in fact, the totalitarian regime of the ousted, then President Zine El Abidine Ben Ali ("Ben Ali") was based on the use of the judicial system to suppress any challenge to the regime. Thus, opponents of the President, from both sides of the political spectrum, were the victims of unfair trials as the regime had its hand in the judicial branch, in particular by means of appointments and assignment of magistrates.

After the 2011 revolution, and the end of decades of dictatorship, the transition process in Tunisia went from mere constitutional revision by a committee of experts, to the election of a constituent assembly and a total redrafting of the constitution. There was mobilization of the political and associative actors, which makes the Constituent National Assembly a corollary to the fluidity of the political situation in post-Ben Ali Tunisia and, at last, the new Constitution was adopted on January 27, 2014.

The major goal of my post is to analyze the process of transformation of the Judiciary, a branch of government in which the pressures of adaptation did not arise from the presence of a model, nor from the export of institutions or the transposition of the international achievements and experience, but rather from the new democratic context experienced by Tunisia.

The necessary independence of the Judiciary also prompts a debate over the nature of the Judiciary’s relationship with the other branches of government, and particularly with the Executive. The need for independence of the Judiciary also implies the need for certain constitutional protections for judges and for a judicial organization likely to protect judges against pressures of all kinds. Consequently, this post will touch upon the changes to the Judiciary as a system, as well as to the status of judges.

The constitutionally entrenched independence of the Judiciary

The first Tunisian Constitution, adopted in 1959, proclaimed the will of the people to establish "a stable political system based on the separation of power". Even though the text of the Constitution of 1959 devoted an entire chapter to the "judicial authority” and even though article 67 mentioned the Supreme Council of the Judiciary, no reference was made to the independence of the Council itself from the Executive and the Legislature.

In practice, the Judiciary, under former Ben Ali, was subservient to the Executive and lacked independence. The dependence of the Judiciary on the Executive was obvious from the composition of the High Judicial Council over which Ben Ali presided and whose members included the justice minister and other executive officials. Ben Ali used the council to help the executive branch undermine judicial independence and to make the courts subservient to the political authorities. 

After the revolution of 2011, Parliament created a temporary judicial body – the Temporary Body for the Judiciary – to oversee the selection, appointment, promotion, and transfer of judges pending the creation of the new permanent body. The temporary judicial council was hailed as a first step toward judicial independence.

The Tunisian Constitution of 2014 was finally adopted, and it now protects the independence of the Judiciary. Article 102 states: “The judiciary is independent. It ensures the administration of justice, the supremacy of the constitution, the sovereignty of the law, and the protection of rights and freedoms.” It also mandates the creation of a Supreme Judicial Council, which is responsible for “ensuring the prevalence of justice and respect for the independence of the judiciary.” The Constitution also protects judicial independence, by giving the new body responsibility for judicial appointments and for the taking of disciplinary measures, and the dismissal of, judges.

For the first time, on 23 October 2016, in thirteen governorates across Tunisia, judges, lawyers, legal academics and accountants elected members to the Supreme Judicial Council. 

Securing the ongoing independence of the Judiciary

Article 65 of the previous Constitution (the Constitution of 1959) provided that "the judicial authority is independent: the magistrates are subjected (submitted) in the exercise of their duties only to the authority of the law". In practice however, the Executive and Legislature intervened in the careers of judges through recruitment, remuneration, promotion, transfer, etcetera.

The transfer issue is particularly important since the Ben Ali government frequently made use of punitive transfers, dispatching judges who didn’t follow the government’s line to remote areas.

In the interim period, between 2011 and 2014, the Justice Ministry continued to interfere in judicial appointments and promotions, and to engineer the dismissal of judges. This ministry arbitrarily dismissed 75 judges in 2012, accusing them of corruption and other wrongdoing while denying them an adequate opportunity to answer to those accusations. The Constitution of 2014, on the other hand, contains several important protections for the independence of judges. For example, the independence of judges is protected through provision for their accountability, in the performance of their duties, being solely bound by the Constitution and the law. Article 106 prohibits any outside interference in the Judiciary. Also, judges have to be appointed by presidential decree with the approval of the High Judicial Council, appointments to senior judicial positions requires, in addition, consultation with the Prime Minister, and the President’s choice is limited to a list of candidates prepared by the High Judicial Council. Finally, Article 107 prohibits the transfer of judges without their written consent, even in cases of promotion, except where transfer is “needed” to meet the “requirements of the judicial service.”

In the end, it seems that Tunisia has taken a big step forward with this new Constitution but ensuring the country’s courts function freely and without political interference requires the ongoing vigilance of every Tunisian.

Amel Arfaoui is a Judge in the Administrative Court of Tunis, Tunisia. She is also a Ph.D candidate at the Faculty of Legal, Political and Social Science, Tunis 2.

Suggested citation: Amel Arfaoui, “The Constitutional Design of the Judiciary in Tunisia: Post-Arab Spring” IACL-AIDC Blog (15 July 2019) https://blog-iacl-aidc.org/2019globrev/2019/7/15/the-constitutional-design-of-the-judiciary-in-tunisia-post-arab-spring