The Provisional Instance of Tunisia: An Insufficient Substitute for a Constitutional Court

Hana Ben Abda

University of Jendouba

Tunisia experienced one of the most democratic constitutional transitions in the MENA region and adopted a Constitution that is considered one of the most balanced of the region, both for its content and for the constituent process that was held after the 2011 Revolution. However, it failed to protect the adopted Constitution through constitutional review, because, despite an entire chapter of the Constitution of 2014 about a constitutional court, such a court has not yet been established due to political reasons.

The Constitutional Court of Tunisia is granted substantive powers by the Constitution (articles 118-124), such as constitutional review of constitutional amendments, international treaties and laws before and after their enactment; the destitution of the President and pronunciation of the vacancy of the Presidency; the regulation of conflicts inside the Executive power. The Organic Law No 2015-50 of 3 December 2015 on the Constitutional Court, adopted by Parliament, completes those constitutional provisions. The Court was supposed to be established by the end of 2015 at the latest, yet six years have passed without real progress. The delay has been caused by the Tunisian Parliament’s failure to elect four members to the Court’s Council, as required by article 118 of the Constitution, due to a political deadlock on the vote. 

In the absence of a permanent constitutional court, the Provisional Instance is the only one mandated, by article 148(7) of the Constitution, to examine the constitutionality of legislation before enactment. It is established by Law No. 2014-14 of 18 April 2014. Its jurisdiction is set to expire once the constitutional court is established, but the fixed delays have already expired.

The President of the Republic, the Prime Minister or a minimum of thirty members of Parliament can refer draft laws to the Instance in order for it to assess their constitutionality, but only before they enter into force, a similar mechanism to the one existing in the French Constitution (article 61). The Provisional Instance was not supposed to be in charge of constitutional review for such a long time, and its ongoing existence is a source of concern because of its lack of legitimacy to substitute a proper constitutional court. In what follows, I will discuss two characteristics of Provisional Instance jurisprudence in order to show that, instead of properly replacing a permanent constitutional court, the Provisional Instance only offers insufficient constitutional protection.

While the rest of this symposium is centered on landmark judgments in countries of the MENA region, in the case of Tunisia it was not possible to identify landmark judgments mainly due to absence of Provisional Instance’s decisions that offer deep and analytical reasonings. The Provisional Instance’s decisions, on the one hand, often lack detailed reasons, and, on the other hand, tend to avoid highly politicized issues — often in favor of the Executive power. Yet, the Tunisian situation analyzed in this post is particularly interesting for the reader of the symposium because it highlights an element that may be a crucial characteristic of landmark judgments and that may be taken for granted in jurisdictions with permanent and consolidated courts: the need of a robust reasoning in judicial rulings. 

While there is no specific landmark judgment so far, it is possible to see a pattern of constitutional review set by the jurisprudence of the Provisional Instance that is characterized by (i) lack of detailed or robust reasoning, and (ii) the avoidance of highly politicized issues. Since 2014, the Provisional Instance has rendered more than sixty decisions. In 2014 and 2019, it was called upon to analyze electoral laws. These decisions, which I discuss below, illustrate the two characteristics of the jurisprudence of the Instance. 

Shortcutting Decisions

The Provisional Instance provides limited reasoning for its decisions. Often the judgements are so short that they fail to justify the Instances’ position on an issue or even explain the core concepts. For example, several times, the Instance has been seized to examine the respect of principle of equality in the bills. In those cases, the decisions have failed to interpret either the notion of equality or that of equal opportunity. Instead, the Instance is happy to simply repeat the government’s arguments–regardless of how superficial and scarce they are.This lack of explicit rationale is evident in three cases regarding electoral law. 

In case N° 2-2014 of 23 May 2014, petitioners argued that vertical parity in lists of candidates for legislative elections is insufficient to guarantee gender equality between citizens, protected by articles 21, 34 and 46 of the Constitution. Therefore, in the opinion of the petitioners, the electoral law ought to ensure horizontal parity at the level of the heads of party and coalitions lists. Horizontal parity, they contended, would guarantee gender equality in the composition of the elected assemblies.

Article 46 of the Constitution provides that“the State shall endeavor to establish parity”. In its interpretation of this provision, the Provisional Instance decided it was not necessary to integrate horizontal parity at the level of the heads of the candidates’ lists. The Instance found that the legislator’s obligation is an obligation of means and not of establishing parity between women and men in elected assemblies. Parliament finally adopted a new law (Law No 2017-7 of 14 February 2017) creating horizontal parity between women and men solely for municipal elections.

The Provisional Instance took a similar approach indecision N° 3-2014 of 19 May 2014. The petitioners had challenged the constitutionality of a bill that provided for a minimum of four seats in homeland constituencies, with a base of one seat per 60,000inhabitants. Yet, the bill made no provision for minimum seats for constituencies abroad. The petitioners argued that all constituencies, both at home and overseas, should be subjected to the same seat allocation rules. 

The Provisional Instance ruled that it is unnecessary to extend the rule providing for a minimum number of seats to constituencies abroad. It held that the rule of one seat per 60,000 inhabitants does not violate the principle of equality without giving any further explanation for this finding.

The interpretation of article 49 of the Constitution, the so-called ‘limitation clause’, is particularly problematic. It stipulates: 

“The limitations that can be imposed on the exercise of the rights and freedoms guaranteed in this Constitution will be established by law, without compromising their essence.” 

In its decision N° 4-2019 of 8 July 2019 (unpublished), the Provisional Instance was asked to apply this article to several questions about fundamental principles of electoral law. First, the matter dealt with a draft electoral law that introduced a financial deposit requirement as a condition for presidential candidacy. The law would require candidates to deposit a sum of money during their candidacy to guarantee their seriousness. The Instance found the provision was not contrary to the Constitution. In its reasoning, the Instance stated the condition does not infringe the essence of the right to candidacy and thus does not violate the principle of proportionality contained in article 49. 

Second, the case dealt with the electoral threshold of 3% of the votes required to allow lists to be represented in Parliament. The Instance noted that several electoral systems around the world have such threshold requirements. Further, it found 3% to be a reasonable prerequisite, given the underlying purpose of preventing the dispersion of parliamentary representation.Thus, it found, the threshold does not constitute a limitation affecting the essence of the right to vote and the right to participate in political life.

Similarly, the Instance found that conditions requiring the presentation of a declaration of assets and an extract from the candidate’s criminal record do not constitute an infringement of the essence of the right to stand as a candidate. It found that these requirements serve to guarantee the integrity and transparency of the elections and are thus necessary in a civil and democratic state.

At no point in the judgement did the Provisional Instance define the core concepts of the limitation clause — “essence of right” and“necessity in a civil and democratic State”. The Instance has also never explicitly applied the proportionality test; it has always been satisfied with declarative sentences without any substantive motivation.

Avoiding Political Debate

Organs charged with constitutional review may be called upon to examine questions relating to political crises and tensions, the Tunisian Provisional Instance is no exception. Nonetheless, the Instance has more often than not refused to take a clear stance and has consistently avoided entering the debate about widely contested reforms. 

As the 2014 elections approached, a significant debate erupted over the voting rights of the armed and internal security forces.This debate was prompted by a fear of a political polarization in military and police institutions.

Article 6 of the electoral bill proposed to deprive members of the army and internal security forces of their right to vote (in both presidential and legislative elections). The MPs argued that this deprivation was unconstitutional because it was contrary to the principle of equality (article 21 of the Constitution) and that it was not saved by the limitation clause (article 49). In the matter of the case N° 1-2014 of 20 May 2014, the Provisional Instance determined that it could not decide the issue due to an internal disagreement among its members. Thus it referred the draft law to the President for promulgation and publication. Finally, in 2017, security agents and armed forces were granted the right to vote, but only in municipal elections (Law n°2017-7 of 14 February 2017).

A few months before the October 2019 elections, the government introduced a draft law to amend the electoral law during a tense pre-electoral climate. The Prime Minister, Youssef Chahed, was a candidate for the presidency in the October 2019 elections. However, polls predicted his rival, Nabil Kaoui, had a sizeable lead on him. The government claimed that Nabil Kaoui, a businessman, had financed his electoral campaign by questionable meansand that he is thus a threat to the integrity and transparency of the electoral process.

The true objective of the bill was to prevent Nabil Kaoui from running. It imposed new sanctions and conditions, including prohibiting managers of associations from standing for election. As Kaoui held such a position, the bill would make it possible for the election authority to disqualify him.

The bill was challenged before the Provisional Instance.Petitioners argued it would introduce retroactive sanctions, violating the preamble of the Constitution as well as articles 21 (equality before the law) and 28 (legality of punishments).

In its decision N° 4-2019 (unpublished), the Provisional Instance held that the principle of non-retroactivity has constitutional value only in criminal matters. Accordingly, it found that it is entirely permissible for laws imposing sanctions adopted outside the penal domain to apply retroactively.

Although widely criticized, this draft law was validated by the Provisional Instance, and all challenges to constitutionality were rejected. However, the amendment never entered into force since the President of the Republic (the late Béji Caid Essebsi) did not promulgated it or order its publication. He passed away shortly after the expiration of the time limits provided in article 81 of the Constitution.

I have outlined how the Provisional Instance’s decisions are insubstantial, fail to provide definitive interpretations of essential concepts and lack reasons. As the Instance additionally surrenders to political pressures, post-revolutionary constitutional jurisprudence in Tunisia does not seem to be progressing towards democracy. Nor is the Instance able to offer guidelines to protect the rights Tunisians acquired in their 2014 Constitution. For those reasons, it seems difficult to identify the jurisprudence of the Provisional Instance as a ‘landmark’ for the Tunisian constitutional system in general. However, the commented judgments are still significant in the sense that they underline the limits of this provisional institution and call for the establishment of a permanent constitutional court. In April and May 2021, amendments to the Organic Law of 2015 on the Constitutional Court were attempted by Parliament, in order to simplify the parliamentary vote to elect the members of the Court. However, until now those attempts have been halted by the President’s refusal to sign their promulgation. 

Hana Ben Abda is an Assistant Lecturer in Public Law at the University of Jendouba, Tunisia and a member of the executive board of the Tunisian Association of Constitutional Law.

Suggested Citation: Hana Ben Abda, ‘The Provisional Instance of Tunisia: an insufficient substitute for a constitutional court’ IACL-AIDC Blog (15 July 2021) https://blog-iacl-aidc.org/menaregion/the-provisional-instance-of-tunisia-an-insufficient-substitute-for-a-constitutional-court.