Ensure Judiciary Has Powers To Protect Human Rights
January 13, 2014
(Tunis) – As Tunisia’s National Constituent Assembly (NCA) is discussing the chapter on the judicial powers in a new constitution, Al
Bawsala, Amnesty International, Human Rights Watch, and The Carter Center urge members to strengthen guarantees for
judicial independence.
The judiciary under former President Zine el Abidine Ben Ali was subservient to the executive branch and lacked
independence. It is essential that Tunisia’s new constitution fully guarantee the independence of the judiciary and the
impartiality of justice, the groups said.
“Tunisians deserve a constitution that has crystal clear guarantees for an independent judiciary,” said Marion Volkmann,
director at The Carter Center Office in Tunis. “Tunisia’s new constitution should signal a real departure from a past
marred by political interference by the executive and ensure the judiciary has the necessary power and independence to
protect human rights.”
Al Bawsala, Amnesty International, Human Rights Watch, and The Carter Center have followed the constitution-making
process since it began in February 2012. Their January 3, 2014 joint statement made recommendations for strengthening
human rights and freedoms in the constitution.
The draft chapter on judicial power contains several important articles that incorporate general principles on the
independence of the judiciary. For example, article 100 stipulates that: “the judiciary is an independent authority that
ensures the prevalence of justice, the supremacy of the constitution, the sovereignty of the law, and the protection of
rights and freedoms.” The independence of judges is confirmed in so far as they are accountable, in the performance of
their duties, solely to the constitution and the law. Article 106 prohibits any outside interference in the judiciary.
The four organizations welcome these provisions, which accord with international standards. The UN Basic Principles on
the Independence of the Judiciary, for example, require that principles relevant to the independence of the judiciary
should be set out in the country’s constitution.
However, the draft chapter contains weak guarantees for the tenure of judges, contrary to international standards, for
example the UN Basic Principles on the Independence of the Judiciary and the Principles and Guidelines on the Right to
Fair Trial in Africa. While prohibiting removal of judges or their transfer without their consent, the draft envisages
exceptions “in accordance with guarantees provided for by the law,” a formulation that could be misused by the executive
and legislative powers and risks undermining the essence of this protection.
Al Bawsala, Amnesty International, Human Rights Watch, and The Carter Center therefore recommend that the NCA state
clearly in article 104 that any disciplinary measure against a judge should be possible only for serious misconduct, as
determined by the High Judicial Council and by respecting guarantees of due process.
The draft constitution provides for the creation of a High Judicial Council with a mandate of “ensuring the prevalence
of justice and respect for the independence of the judiciary, proposing reforms and making recommendations with respect
to draft laws related to the judiciary, and deciding on the professional conduct of and disciplinary measures for
judges” in article 111. The draft proposes that half of the members of this council will be judges, the remainder
non-judges.
The Consensus Commission, tasked with reaching broad agreement on the most contentious constitutional issues, proposed
an amendmentthat would raise the number of judges on this council to two-thirds, “the majority of them elected by their
peers and the rest appointed,” with the remaining third comprising individuals of demonstrable independence and
expertise.
However, this formulation falls short of ensuring full independence of the judiciary on two levels. First, the judges
elected by their peers could be a minority on the council, which could leave it under the control of members appointed
either by the executive or by parliament. Several international instruments recommend that such bodies have a
substantial proportion or even a majority of members elected by the judiciary. For example, the 1998 European Charter on
the Statute for Judges “envisages the intervention of an authority independent of the executive and legislative powers
within which at least one-half of those who sit are judges elected by their peers following methods guaranteeing the
widest representation of the judiciary.”
Second, the proposed amendment does not indicate how the non-judge members should be selected, whether directly by the
government, an election by parliament, or any other procedure. This leaves excessive discretion to government
authorities regarding the procedures for their selection and does not offer sufficient constitutional guarantees for
their independence from the two other branches of the state.
Al Bawsala, Amnesty International, Human Rights Watch, and The Carter Center recommend that the NCA state in article 109
that at least half of the High Judicial Council be composed of judges elected by their peers. They further recommend
that the constitution should specify appointment procedures to ensure that the selected non-judges enjoy broad
confidence and legitimacy and that any appointment by parliament should require no less than a two-thirds majority.
The constitution has also extended the guarantees of independence to the public prosecution, which “shall form part of
the judiciary and shall enjoy the same safeguards.” Article 112 requires public prosecutors to “discharge their duties
in accordance with state prosecution policy in compliance with procedures laid down in law.” The four organizations
recommend that the NCA retain that formulation and reject an amendment changing it to “governmental prosecution policy,”
and specify that this policy should be consistent with rights and freedoms protected in the constitution and
international human rights standards.
For more background, please see below.
Background
The NCA began voting on the constitution in plenary session on January 3, 2013. To date, it has completed voting on the
preamble, general principles, rights, and freedoms, and the legislative and executive powers chapters. The
article-by-article vote and first complete reading of the draft constitution will be the final stage of the
constitution-making process. The rules the assembly set for passage require a separate vote on each article, with a
simple majority required for passage. The assembly must then approve the entire draft in a separate vote. If the draft
fails to pass by a two-thirds majority, the draft will be submitted again for voting with the same two-thirds majority
required. If the second attempt fails, the draft goes next to a national referendum.
ENDS