The Tunisian Constitutional Court at the Center of the Political System - and Whirlwind
The Tunisian Constitutional Court at the Center of the Political System - and Whirlwind
“Mr François Mitterand, my friend, thank you for appointing me as president of the Constitutional Council, but you should know that from now on, I have towards you a duty of ingratitude” Robert Badinter, 1986
On 20 November 2015, the Tunisian Assembly of the People’s Representatives adopted the law on the establishment of the Constitutional Court. This is a major step in the implementation of the 2014 Constitution, considering that this court will be the custodian of the constitution and its greatest innovations. Yet, despite its importance, there is considerable delay in the implementation of the constitution and, by extension, the establishment of the court. Indeed, after more than two months following the passing of the bill, the members of the Court are yet to be appointed, and the court remains without staff or a headquarter.
One of the great flaws of the 1959 Constitution of Tunisia - in force until the 2010-2011 revolution - was the absence of an independent Constitutional Court. Although there was a Constitutional Council, it served only as an advisory body to the President, who had the exclusive power to seize the council, whose members were appointed by and fully loyal to the President. This shortcoming made the constitution even more fragile during the dictatorship of Ben Ali, as the lack of judicial oversight rendered constitutional rights and freedoms purely theoretical. It is for this very reason that members of the National Constituent Assembly, who drafted the 2014 Constitution, have given primary attention to the creation of the Constitutional Court. Indeed, without a truly independent Constitutional Court it would be difficult to prevent the concentration of power in the hands of the executive.
Recognizing the importance of a body that monitors compliance with the constitution by public authorities was at the heart of the creation of the Provisional Authority in charge of determining the constitutionality of laws. The Provisional Authority was established according to the Transitional Provisions of the 2014 Constitution and performs constitutional review functions until the Constitutional Court is established and becomes fully operational. The court will be different from the Provisional Authority in various ways, especially in its composition and jurisdiction. Nevertheless, the Provisional Authority has been an important body throughout the first steps of the implementation of the new constitution – especially in facilitatinga culture of constitutional review in Tunisia. For instance, as the Provisional Authority can be seized by 30 members of parliament. A relaxed standing rule that in the past two years allowed opposition parties to challenge the constitutionality of draft laws, such as the one concerning the High Council of the Judiciary that are key to the implementation of the new constitution
The Constitutional Court, for its part, will be the centerpiece of the Tunisian legal order. The Court’s decisions must be reasoned and are binding on all authorities. The court is designed to act as a check on the executive and the legislative powers through the review of the constitutionality of laws. The court does not have jurisdiction to review the constitutionality of administrative acts, which falls under the competence of the administrative court. If the Constitutional Court decides that a law is unconstitutional, the implementation of the provision(s) or the law is suspended partially or as a whole to the extent specified by the court. It will also be in charge of ensuring that authorities do not overstep their competence under the constitution. For example, under Article 101, the Constitutional Court resolves conflicts of competence between the president and the prime minister.
The court’s broad mission will be to ensure respect for the constitution, in particular fundamental rights and freedoms. For that purpose, the constitution as well as the law on the Constitutional Court stress the independence of the court and grant it wide-ranging powers.
Composition & Jurisdiction
The constitution gives high priority to the Constitutional Court and stipulates that it is an independent judicial body composed of 12 members chosen for their acknowledged competence, with three-quarters of them being legal experts with at least 20 years of experience. The Law on the Constitutional Court adds that the Court ensures the primacy of the constitution, respect for the republican system as well as for rights and freedoms.
The court will also be in charge of reviewing the constitutionality of proposed amendments to the constitution. In this respect, there is a distinction between the amendment proposals initiated by deputies, which may be submitted to the court before their adoption by the assembly, and proposals originating from the president, which may be submitted to the court after their adoption by the assembly. The court also monitors the conformity of international agreements with the constitution and existing laws upon the referral of courts and tribunals. Additional functions of the court include: review of the constitutionality of the rules of procedure of the Assembly of People's Representatives; the impeachment of the president in cases where there has been a clear violation of the constitution; declaration of the vacancy of the presidency; decision on the continuation of the state of emergency and in cases of conflicts of competence between the president and the prime minister. These competences are no less important than those related to the review of the constitutionality of laws. They aim, among others, to prevent the legislative branch from violating the constitution, to restrain the president from concentrating power in his own hands, and also to ensure that states of emergency does not become a pretext for violating citizens’ rights and freedoms.
One of the strengths of the court is the conditions required to become its member. The Law on the Court stresses the criteria of independence, impartiality and honesty as well as the requirement not to hold responsibilities at any level in a political party for ten years prior to appointment to the Court. The law also contains a positive and original aspect to the Tunisian Constitutional Court is the requirement that the three authorities concerned with appointing its members have to work towards gender parity in the bench. Although progressive, the wording of the article does not require the achievement of the parity of the sexes and it is yet to be seen whether the court will be able to attain gender-balance. The law also introduces other guarantees, such as the nine-year mandate of judges and the renewal of one-third of the bench in every three years. In addition, the arrest of judges is prohibited as long as the court does not lift their immunity. While the 2014 Constitution is silent on the issue of removal of the judges of the court, the law provides that the judges may only be removed from office upon the decision of the court itself, and only on the grounds that they no longer meet any of the criteria for membership to the court, or for violations of their legally enshrined duties, or in cases of absolute incapacity. The judges can perform neither paid nor unpaid work while in office to prevent conflicts of interest and to ensure impartiality. Finally, the duty of confidentiality, which prohibits judges from making public statements pertaining to their functions, is aimed at precluding perceptions of bias and politicization.
A Politicized Court?
Despite various efforts to strengthen the independence and impartiality of the court, the dangers of its politicization have been in the forefront of discussions concerning the composition of the court. Therefore, when designing the rules on the composition of the court, legislators were mindful of the unfortunate precedent of the Truth and Dignity Commission in charge of leading the transitional justice process, and whose politicized composition have led to infamous deadlocks. Two factors, in particular, increase the risk of the court’s politicization: the tense political context and the recentness of the court that has not yet become firmly established in the country’s legal and political landscape.
One of the most contentious questions was whether members of the Constitutional Court could belong to political parties prior to their appointment to the court, which was subject to a heated debate both in the Assembly of People’s Representatives and in the public. There were two conflicting positions: the first believes that a member of the court exercising political role prior to his/her appointment should not be an obstacle, so long as (s)he refrains from partisan activity after appointment to the bench. On the contrary, others believe that a Constitutional Court judge must not have any party affiliation prior to his/her nomination. After bitter debates, an interim solution was found, which prescribes that a member of the court must not have exercised any partisan responsibility for ten years prior to her/his appointment to the court. In practical terms, the Constituent Assembly, held that being a rank and file party member is not an obstacle to becoming a Constitutional Court judge, provided that the member was not part of the party leadership. These limitations on permissible political involvement are rooted in the concern that the court would potentially become dominated by political considerations.
At this point, it is difficult to tell whether designating the Assembly of People's Representatives, the President of the Republic, and the General Council of the Judiciary to designate four judges respectively will reduce or increase the risk of politicization. Indeed, the Constitutional Court could also fall victim of a quota logic, if its members were more "grateful" to the one who has appointed them than bound by their role as the “guardians of the constitution”. In a stable and peaceful democracy, the risk of politicized court decisions might be minimal but in the still tense and contentious Tunisian political context, there are serious risks that each political party will tend to push the court to support its agenda, for example through nominating to the court political affiliates with close ties to the party and its political vision. This risk will be important during the early years of the court until it affirms its independence.
Where do we stand now?
To date, the Constitutional Court has not been established because the General Council of the Judiciary, which will elect four members of the court has not been set up either, since the Bill on its organization was deemed unconstitutional by the Provisional Authority. This delay contributed to the lapse of constitutional implementation deadlines and also resulted in a delay in the establishment of the court, as scheduled (by November 2015). With the recent shuffling of the cabinetand social turmoil, all attention is focused on the government and its (in)action. As a result, the General Council of the Judiciary, and by extension the Constitutional Court, will have to wait another few weeks before seeing the light of day. Even though the constitution did not envisage a binding time limit in this regard, this gives a sense of an overall struggle with constitutional implementation, that is also heightened by delays in the establishment of other independent commissions, such and the Human Rights Commission or the Anti-Corruption Commission.
Like any newly established institution, it will take some time for the Constitutional Court to establish its legitimacy and authority. The fact that it is the first Constitutional Court in Tunisia, that the political context is still tense and that democratic traditions and institutions are still very fragile do not work in its favor. The character of the Constitutional Court judges will therefore be decisive. One key to their success in their mission is to be ungrateful: ungrateful to those who nominated them and loyal only to the constitution. It is this ingratitude of the judges that will ensure the independence of the court.
Nidhal Mekki is researcher at the Faculty of Legal, Political and Social Sciences of Tunis, Tunisia.