The ICJ today called on the Tunisian President, Beji Caid Essebsi, to refrain from signing into law amendments to the law that regulates the country’s High Judicial Council (HJC). The amendments were adopted on Tuesday 28 March 2017 by the People’s Representatives Assembly.
The ICJ also urged the Head of the Cabinet, Youssef Chahed, to act, as a matter of highest priority, on the nominations by the Instance Provisoire de la Justice Judiciaire (IPJJ) with a view to filling the positions of the First President of the Cassation Court and its General Prosecutor.
The ICJ expressed concern that the amendments revising the country’s 2016 HJC law would weaken the effective functioning of the judiciary and the administration of justice in several respects
- The amendments would strip the IPJJ President of the authority to convene the HJC’s first meeting and instead provide the President of the Parliament with such power. This would constitute an inappropriate interference of the legislative branch into the management of the judiciary in clear violation of the principle of separation of powers and judicial independence.
- The amendments would explicitly exclude any possibility of challenge or judicial review of such action of the President of the Parliament. The ICJ considers that the judiciary must be able to review such decisions to ensure that they are not exercised arbitrarily or outside the law.
- The amendments would also reduce the quorum required for the validity of HJC meetings from one-half to one-third of its members. This could lead to situations where non-judicial members of the HJC have the power to take decisions over the judiciary, in contravention of international standards.
“Instead of using legislative tactics and procedures to weaken the independence and the effective functioning of the HJC, the Tunisian Head of Cabinet should act on the IPJJ’s nominations to fill the positions of the President and the Prosecutor General of the Cassation Court as a matter of urgency, and ensure that until the HJC is properly established, the IPJJ continues to fully exercise its competencies in overseeing and managing the judiciary,” said Said Benarbia, Director of the ICJ Middle-East and North Africa (MENA) Programme.
Indeed, irrespective of the amendments, the ICJ recalls that article 148(8) of the Constitution clearly states that the IPJJ is to carry out its mandate until the seats on the HJC have been filled. This is further affirmed under article 74 of the 2016 HJC Law and article 19 of the 2013 IPJJ Law. Both of these laws make the end of the exercise of the IPJJ’s functions dependent on two conditions, namely that the HJC be fully composed and established.
The ICJ considers that the delay in acting on the IPJJ nominations of senior judges risks undermining the effective functioning of the judiciary, as well as adversely affecting the functioning of other institutions that are essential to upholding the rule of law and protecting human rights in Tunisia. The adopted amendments are no answer to this problem.
“The ongoing crisis is political and not judicial,” Benarbia said.
“Solving it does not require the introduction of legislative amendments that erode the rule of law and judicial independence, but rather the compliance with existing laws and the Constitution,” he added.
Theo Boutruche, Legal Adviser of the ICJ Middle-East and North Africa Programme, t: +33 6 42837354, e: theo.boutruche(a)icj.org
The amendments were introduced and adopted amid a continuing crisis and functional paralysis of the judiciary that also impact on the effective functioning of other State institutions, including the body in charge of reviewing the conformity of laws with the Constitution.
In particular, two key positions have been left vacant as neither the First President of the Cassation Court, nor its General Prosecutor, have been appointed, and both of these positions also serve as ex officio members of the HJC.
In October 2016, elections were organized to choose the members of the HJC. A swearing-in ceremony before the President of the Republic followed in 14 December 2016, in which not all the HJC Members participated.
In November 2016, the IPJJ proposed candidates including to fill these two positions. Under the Tunisian Law, the Head of the Cabinet must confirm these nominations.
Alternatively, this official may request new nominations from the IPJJ until agreement is reached, as provided for in article 12 and 14 of the IPJJ Law No.13 of 2013. So far, the Head of the Cabinet has failed to act on the IPJJ’s nominations and uncertainty prevails as to whether the HJC has been properly established.
Under the Tunisian Constitution and laws, the President of the Cassation Court is also the President of the Instance Provisoire de Contrôle de la Constitutionnalité des Projets de Loi, the body in charge of assessing the conformity of laws with the Constitution during the transition period.
When established, the HJC will be charged with appointing four members of the Constitutional Court.
Tunisia-Statement new HJC Law-News-Web stories-2017-ARA (full story in Arabic, PDF)