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Tunisia: Constitutional and legislative recognition of the principle of judicial independence

The independence of the judiciary must be guaranteed by the State and enshrined in the Constitution or the law.[1]

Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.[2]

 

The Constitution provides that the judiciary is independent and ensures the administration of justice, the supremacy of the Constitution, the sovereignty of the law, and the protection of rights and freedoms. Judges are independent, with the law being the sole authority over them in the discharge of their functions.[3] Furthermore, “any interference with the functioning of the judiciary is prohibited”.[4]

The Constitution envisages the creation of a new High Judicial Council, consisting of four bodies: the Judiciary Council, the Administrative Judicial Council, the Financial Judicial Council and the general assembly uniting the three councils. Two-thirds of the membership of each of these bodies is to be composed of elected and appointed judges, and elected members will form the majority of each council. The High Judicial Council will elect its president from among its most senior judges-members. The mandate, organization, composition of each of the four bodies is to be determined by law.[5]

The Constitution provides that High Judicial Council shall enjoy administrative and financial independence and is to be self-managing.[6] It will work to ensure the sound functioning of the justice system and respect for its independence. Among other things, the general assembly of the councils will review draft laws related to the judiciary. Each of the three councils is responsible for making decisions on the professional careers of judges and for disciplinary measures taken against them.[7]

The High Judicial Council is due to be established before April 2015.[8] Meanwhile, a temporary judicial authority, called the Instance Provisiore de la Justice Judiciaire (IPJJ) was established mid-2013,[9] replacing the executive-controlled Conseil Supérieur de la Magistrature (CSM) that was suspended with the adoption of the Provisional Constitution in December 2011.

 

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  1. 1. UN Basic Principles on the Independence of the Judiciary, Principle 1;

    The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

     Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article A.4(a).

    The independence of judicial bodies and judicial officers shall be guaranteed by the constitution and laws of the country and respected by the government, its agencies and authorities;

  2. 2. UN Basic Principles on the Independence of the Judiciary, Principle 9.

    Judges shall be free to form and join associations of judges or other organizations to represent their interests, to promote their professional training and to protect their judicial independence.

  3. 3. 2014 Constitution, Article 102.

    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.

    Judges are independent with the law being the sole authority over them in discharging their functions.

  4. 4. 2014 Constitution, Article 109.

    All kinds of interference in the functioning of the judicial system are prohibited.

  5. 5. 2014 Constitution, Article 112.

    The High Judicial Council is composed of four bodies, which are the Judiciary Council, the Administrative Judicial Council, the Financial Judicial Council, and the General Assembly of the three judicial councils.

    Two-thirds of each of these structures is composed of judges, the majority of whom are elected, in addition to judges appointed on merit, while the remaining third shall be composed of independent, specialized persons who are not judges. The majority of the members of these bodies shall be elected. Elected members exercise their functions for a single six-year term.

    The High Judicial Council shall elect its president from amongst its most senior judges.

    The law establishes the mandate of each of the four bodies, and their composition, organization, and procedures.

  6. 6. 2014 Constitution, Article 113.

    The High Judicial Council enjoys administrative and financial independence and shall be self-managing. It prepares its own draft budget which it discusses before the competent committee of the Assembly of the Representatives of the People.

  7. 7. 2014 Constitution, Article 114.

    The High Judicial Council ensures the sound functioning of the justice system and respect for its independence. The General Assembly of the three judicial councils proposes reforms and gives its opinions on draft laws related to the judicial system. Such laws must be reviewed by the General Assembly. Each of the three councils is responsible for making decisions on the professional careers of judges and on disciplinary measures taken against them.

    The High Judicial Council shall prepare an annual report and submit it, in the month of July at the latest, to the President of the Republic, the Speaker of the Assembly of the Representatives of the People, and the Head of Government. The report shall be published.

    The Assembly of the Representatives of the People shall discuss the annual report at the beginning of the judicial year in a plenary session, in dialogue with the High Judicial Council.

  8. 8. 2014 Constitution, Article 148(5).

    The High Judicial Council shall be created within a maximum of six months from the date of the first legislative elections

  9. 9. Law No. 2013-13.
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