Jurisdictional control and the Constitutional court in the Tunisian Constitution

Jurisdictional control and the Constitutional court in the Tunisian Constitution Xavier PHILIPPE The introduction of a true Constitutional Court in the Tunisian Constitution of 27 January 2014 constitutes an innovation, the principle of which was met with a general consensus from the constituents. In this new institution, it is difficult to see the pure and simple successor of the Constitutional Council that existed under the Constitution of 1959 1. Although this body was indeed in charge of reviewing the constitutionality of the texts submitted to it, it method of referral and the effects of its decisions did not allow it to be classified as a constitutional jurisdiction in the sense of the term as it is used today. A new era for Tunisian constitutional law has therefore began with the creation of a jurisdictional body in charge of reviewing the constitutionality of conventional and legislative norms, according to a model that is still fairly classic 2. This analysis is part of a firmly textual framework since, at the time of writing, the new Court is not yet in operation and even the text relating to its organisation is still unknown. The Constitution dedicates title II of chapter V relating to judicial power to the Constitutional Court. This title is composed of seven articles. They relate, respectively, to its composition, competence, the effects of unconstitutionality recognised by a ruling, the dismissal process following a declaration of unconstitutionality and the deadlines by which the Court must rule. I. The composition of the Constitutional Court Article 118 of the Tunisian Constitution sets out the fundamental characteristics of the composition of the Tunisian Constitutional Court. First of all, it recognises the full independence of the Constitutional Court, as well as its jurisdictional nature. Two important consequences may be drawn from this. The first relates to the connection of the Court to the judicial power, which differentiates it from its predecessor, the Constitutional Council: the Court is no longer linked to the executive or legislative power in any way; it issues "jurisdictional rulings" and no longer "opinions". The second consequence is internal to the judicial power. No other jurisdiction is superior to it. It benefits from the monopoly of the constitutional review of laws and treaties 3. This exclusivity is also confirmed by other provisions. This article then sets the number of members of the Constitutional Court at twelve and requires them to be competent, and for three quarters of them to be specialised in law and with at least twenty years' experience. These provisions call for two observations. Firstly, the number of members of the Court is reasonable, and falls within the average of what is observed in many 1 The Tunisian Constitutional Council was created by a decree in 1987. Initially, its consultation was optional. This was made compulsory by the law of 18 April 1990 for draft organic laws and draft laws relating to rights and freedoms. The Constitutional Council was integrated in the text of the Constitution by the constitutional amendment of 6 November 1995. The constitutional law n 76 of 1998 amended article 75 of the Constitution of 1958, making the opinions of the Constitutional Council enforceable against all authorities. The Constitutional Council was also an electoral judge that ruled on complaints and appeals and declared the results of elections. It also controlled referendum operations and ruled on the result. 2 The Tunisian Constitutional Court borrows many characteristics from the European Constitutional Courts, characteristics that were also borrowed by States on other continents, in Latin America and Africa, for example. 3 Article 120: The Constitutional Court is exclusively competent with regard to constitutional review 1

Constitutional Courts 4. The even number of judges could lead to a tied vote in certain situations, but if the president of the Court has the casting vote, this disadvantage disappears. In addition, this number could also allow the Court to hold sessions with only three or six judges for certain cases. The total number remains sufficiently reasonable for the group to genuinely discuss the substantive issues and to rise from deliberations a solution agreed upon by the majority. The requirements for judges are asymmetrical. Although all the persons appointed must be competent, the text barely states in which fields this must be so. One could legitimately assume that this requirement concerns the competence with regard to the Constitution; this does not mean that each judge must be an expert in constitutional law, but that he or she must have sufficient knowledge with regard to the matters handled by the Constitution, such as rights and freedoms or institutions, for example. However, in the absence of clarification, this is a simple assumption. In contrast, nine judges must be specialised in law. This probably means that they must hold a degree or a qualification in law, coupled with at least twenty years' experience. These two requirements can be understood, and are similar to those of numerous other Constitutional Courts 5. Certain Courts require that judges come from a jurisdictional background, other require them to be jurists, with no other clarification. With regard to this, the Tunisian Constitution demonstrates a fairly classic tendency, whereby the Constitutional Court is primarily composed of jurists since it is a court and not a political body. The originality of the system is likely based on the appointment of three judges that are not necessarily jurists. This combination of jurists and potential non-jurists is the result of negotiations during the creation of the Constitution. While the initial draft was based on an exclusive composition of jurists, the constituents were divided at the time of presenting the draft before the Constitution coordination and drafting committee, as to whether to include persons from backgrounds other than law. This could target a fairly large range of persons, from representatives of civil society organisations to religious persons, or even experts from other social sciences. This modification was perceived as a method of not shutting away the Constitutional Court to an inner circle of experts who are disconnected from the reality of Tunisian society by those defending it. The presence of nonprofessional judges within a Constitutional Court is not exceptional in itself. In the Tunisian context, this aspect was intensified due to the dissent it created, but nothing indicates that it will cause any problems in practice. For that matter, nothing prevents the appointment authorities from appointing persons with a legal qualification among the non-specialists... Article 118 also sets the term of office of constitutional judges. This appointment is for a period of 9 years and is not renewable: this corresponds to an average term which is observed in other Constitutional Courts. Nine years represents a sufficient length of time for the judges to maintain their action long-term. The non-renewal of the appointment is an excellent solution to avoid any temptation to seduce those in charge of appointment with a view to renewal. The solution is classic and sensible. The appointing authorities are split across the three established powers. The President of the Republic appoints 4 judges; the Assembly of Representatives of the People and the Supreme Judicial Council appoint the 4 other members. Each appointing authority is required to appoint three jurist members with twenty years' experience and a fourth member that is potentially not a jurist. The renewal of the judges is carried out triennially, which requires the first judges to be appointed for different lengths of time. The specialities of appointment must be respected. A jurist must succeed a jurist. 4 This figure generally fluctuates between 9 and 15 but also depends on the size of the State, as well as on the powers assigned to the Court. This figure is considered reasonable from an effective and efficient operation standpoint. 5 See, for example, article 222 of the Portuguese Constitution of 1976 (six judges and six jurists); Article 174 of the South African Constitution of 1996 (4 judges, 7 persons competent in law); 2

The Constitution s text also provides that the members of the Court elect among them a President and a Vice-President, who must both be jurists. This provision is quite original insofar as it leaves the Court a degree of independence regarding its own functioning, on which it alone has the power to decide. It remains to be seen whether this liberty is a source of independence or dissent for the Court. The requirement of the speciality of the President and Vice-President is a guarantee of competence. The Tunisian Constitutional Court is generally dominated by experienced jurists. This confirms its jurisdictional nature and shall reinforce its position of judge of law and treaties. Article 119 provides that a member of the Constitutional Court cannot combine this duty with any other role or mission. This reinforces the exclusive nature of the duties of Constitutional judges, and can only strengthen the independence of the judges and the Court. The exclusivity of the role avoids any temptation. II. The competence of the Constitutional Court Article 120 of the Constitution represents one of the key articles for the new institution. It grants six areas of exclusive competence to the Constitutional Court, which shall constitute the main scope of its activity, even if this article ultimately reiterates that the Constitution grants the Court additional specific competence, which is not strictly jurisdictional 6. The first competence of the Court lies in the possibility to carry out an a priori constitutional review of adopted draft laws. The President of the Republic or thirty members of parliament are authorised to bring an adopted but not yet enacted legislative text before the Court within 7 days. There are two direct consequences of this. By granting thirty members of parliament the right to bring cases before the Court, the Constitution confirms a right of the opposition, who may then bring to the legal field issues that it has politically debated. This is in line with article 60 of the Constitution, which recognises the status of the parliamentary opposition. Although this referral capacity is not reserved solely for members of the opposition, it offers them a participating tool and confers them the duty to protect the Constitution. As guardian of the institutions and of the Constitution, the President of the Republic is also recognised as a potential referral party to the Court, either when this regards an original text, or when it regards an amended text for which he requests revision on the grounds that it is unconstitutional. In any event, the Constitutional Court shall rule in the context of an abstract review of the norms. This analysis shall allow any unconstitutionality that may be contained in certain controversial draft laws to be removed. Undoubtedly, a certain number of questions regarding the interpretation of the Constitution shall arise in the context of this review. The second remark regards the deadline. In practice, the Constitution prohibits the enactment of a law for 7 days after adoption of the text, so that this abstract review can potentially take place 7. It shall be noted that in the original draft, it was initially planned that the Court should rule on all draft laws. This automatic referral of draft laws would have 6 The Constitution of 27 January 2014 includes a series of specific provisions relating to the Constitutional Court: article 66: specific deadline with regard to financial laws; article 80: exceptional circumstances: capacity of the Constitutional Court: information and verification of the continued existence of circumstances to extend the exceptional status; article 81: enactment of laws by the President of the Republic; articles 84 & 85: vacancy of the position of President of the Republic; article 88: request to depose the President of the Republic for serious breach of the Constitution; article 101: conflict of competence between the President and the head of Government; article 144: Constitution revision procedure. 7 See article 81 of the Constitution, which requires the Chairman to enact laws within 4 days of the deadlines of mentioned specifically in the text, including that of 7 days relating to the referral to the Constitutional Court, in the context of an a priori review of the principle. 3

overwhelmed the Court and would not have allowed for a true contentious debate on the issues of constitutionality. It was simply unrealistic. In addition, it would have led to the Court to partially determine the grounds for unconstitutionality itself. Luckily, this hypothesis was abandoned. The second competence of the Court is more specific and concerns proposed revisions of the Constitution. In accordance with article 144, the Constitutional Court is in charge of carrying out a double review. On the one hand, it must verify that the proposed revision does not concern one of the unmodifiable articles of the Constitution. This is an analysis of the content of the review. As an example, articles 1 and 2 of the Constitution cannot be revised. On the other hand, the Court is also in charge of verifying that the constitutional revision procedures are respected, as defined within. This review is initiated by the President of the Parliament (Assembly of representatives of the people) and corresponds to a verification of the respect of the revision procedures initiated by the President of the Republic or a third of the members of Parliament. Strictly speaking, this is not a review of the supra-constitutionality of constitutional revisions, but rather the adherence to existing constitutional provisions. Furthermore, this procedure exists in numerous other Constitutions. Nothing is stated with regard to the systematics of this analysis, but since it is a verification relating to the respect of the Constitution, the logic of the drafting of the text allows it to be considered a systematic verification. The third competence relates to the constitutional review of treaties. Article 20 of the Constitution grants treaties a status above legislation but below the Constitution. The Constitutional Court shall therefore be responsible for verifying the constitutionality of treaties prior to the enactment of the approved law. This verification should logically be systematic for newly adopted treaties if the combination of the different provisions of the Constitution relating to competence and the ratification of treaties is considered 8. In this case, however, the referral authority is, limited to the President of the Republic. It shall be noted that the Constitutional Court does not appear able to rule on the provisions of the international agreements already in force. This therefore excludes any constitutional review by the Court of conventional provisions that Tunisia has already ratified and implemented. This competence regarding the constitutional review of treaties is also classic for a Constitutional Court. The fourth area of competence represents a complete novelty in the Tunisian legal and jurisdictional order. It allows the Constitutional court to carry out an a posteriori constitutional review of laws, upon request sent by the ordinary courts on the initiative of one of the parties. The text of the Constitution is vague insofar as it evokes an "objection of unconstitutionality". However, an objection is traditionally examined by the same judge as the one that rules on the merits of the dispute. In reality, this requires an ordinary judge to submit a question of constitutionality to the Constitutional Court, which has the monopoly over the constitutional review of laws: this is in fact a prejudicial question of constitutionality. In fact, although the principle of such competence is accepted, it is still surrounded by a certain degree of uncertainty insofar as the Constitution refers to the law with regard to organising this area of competence and, in particular, to organising the procedures and referral conditions thereof. However, this is a new competence that places the Tunisian Constitutional Court within the group of States that have established an actual constitutional review of laws. This a posteriori review will also avoid the application of any unconstitutional provisions that feature in laws that may have been adopted during the previous regime, and which have not yet been repealed, to be avoided. The fifth and final explicit area of competence set out by article 120 concerns the constitutional review of the internal regulation of the Parliament (ARP), which is to be submitted by the President of the Assembly. It is logical to conclude from the nature of the vocabulary used that this review is 8 See, in particular, articles 62, 65 & 67. 4

compulsory for the initial regulation and for any modifications. This is logical insofar as the internal regulation of the Assembly governs the legislative work and extends the Constitution. It cannot allow itself to contradict the fundamental text. Here again, this definition of competence is classic. III. Decision-making by the Constitutional Court In article 121, the Constitution sets out the rules relating to decision-making by the Constitutional Court. With an essentially procedural purpose, this article defines the characteristic traits of the decisions of the Constitutional Court. First and foremost, article 121 sets a deadline of 45 days from the referral, by which the Court must reach its decision. This deadline is relatively short but reasonable, if we take into account the need for swiftness for the implementation of a new legislative text. It is the Court's responsibility to organise its working methods with this deadline, as many of its counterparts already do. Nothing prevents the Court from narrowing the timeframe for decisions that it deems urgent, nor anticipating the preparation phase of the decision as soon as it is almost certain that it will be consulted in the context of the a priori review of laws. Furthermore, this 45 deadline is compulsory. If the Court does not manage to reach a decision by this deadline, the adopted draft law is transferred to the President of the Republic, which may potentially result in it being deemed constitutional "by default". However, nothing is stated in the Constitution as to whether this absence of decision shall result in the law implicitly being deemed constitutional or if the enactment of the law does not protect it from an a posteriori constitutional review as provided for in article 120, paragraph 4. The constitutional logic and the preservation of the rule of law would call for that this absence of decision does not result in immunity, for the simple reason that the constitutional judge has not examined the content of the enacted law. In addition, this would be in line with the spirit but also with all of the combined provisions of the Constitution of 27 January 2014, which article 146 refers to as a whole. IV. The effects of the unconstitutionality of adopted legal texts Article 122 resolves the question of the effects of a ruling of unconstitutionality. The unconstitutionality of a draft law, recognised by the Constitutional Court, requires the President of the Republic to refer the draft law to the Assembly of Representatives of the People for a second reading. This return is carried out to remove the unconstitutionality from the text and to restore its coherence. Article 122 also establishes a second, automatic constitutional review by the Constitutional Court when the draft law has been modified and adopted by the Parliament. This twofold review mechanism is not new in itself. It is seen in many States that have established an a priori constitutional review. The originality of article 122 lies in its automatism. Whether it is an amended draft law whose referral is the direct consequence of explicitly declared unconstitutionality or whether it is a second reading caused by the President of the Republic 9 following the expiration of the deadline by which the Court was supposed to have made its decision, the Constitutional Court has the guarantee that in the case of a second reading of an adopted legislative text, whatever the reason, a new referral will take effect. The consequence of this mechanism is creating an automatic constitutional review in the case of a second reading. On the one hand, it guarantees that the constitutional review will eventually come back to the Constitutional Court, the jurisdictional body responsible for it, and on the other hand, it guarantees that the possible unconstitutionality of a legislative text undergoing adoption shall be removed in one way or another. It shall be noted that the text does not envisage the pure and simple 9 Regarding the cases of referral to the Assembly of representatives of the people for a second reading, see article 81 2 of the Constitution. The President of the Republic can request a second deliberation of an adopted draft law, by providing reasons for his decision based on grounds other than unconstitutionality (81 2. 1) 5

abandonment of the unconstitutional text, and according to the text of article 122, the President of the Republic is required to refer a provision that has been declared unconstitutional to the Parliament. He cannot, for example, free himself from his obligation by deciding to abandon the draft that is declared unconstitutional. However, it shall be noted that this only applies for texts submitted to the Constitutional Court. If the matter is not referred to the Court from the beginning, the Court cannot have the matter to referred to it or be automatically called upon. The a priori review is therefore not systematic. V. The effects of the unconstitutionality of legislative texts in force, referred to the Court by the ordinary Courts Although this scenario is completely new, article 123 organises the consequences of the unconstitutionality of a legislative provision in force that is contested before the ordinary courts. On the one hand, this text provides that the Court shall only rule on the information invoked, i.e. the provisions of law in force that are contested with regard to the arguments brought before it. This provision is sensible since it implies that only the contested provisions shall be brought before the Court, and not the legal text in its entirety. The same article provides that the law has a period of three months in which to provide a ruling; this period can be renewed once for an additional three months. This time frame also seems reasonable, even if the renewal must be duly argued. For example, it could be considered that the difficulty of the question or the number of provisions contested could justify such an extension. However, nothing is stated with regard to failure to meet this deadline. Contrary to what is mentioned in article 121 for the a priori constitutional review, the a posteriori constitutional review does not include an automatic declaration of constitutionality by default. Article 121 cannot apply to the decisions of article 123. Therefore, on this point, there is a gap that must be clarified by the law relating to the organisation of the Constitutional Court and its procedures. Article 123 also provides that the decisions of unconstitutionality handed down in the context of an a posteriori review shall result in the suspension of the application of the law or its censured provisions "within the limits of what has been decided by the Court". This wording is ambiguous from two perspectives. On the one hand, unconstitutionality normally results in abrogation, that is to say, the disappearance in the future of the provisions declared unconstitutional: here, the constitutional text refers to suspension, and not voiding. Suspension means that the text is still in force. This makes little sense. It should probably be understood that the legal provision declared unconstitutional can no longer be applied and that it will therefore disappear in the future. On the other hand, the Constitution grants the Court the power to define the consequences of its unconstitutionality ruling: immediate or deferred applicability, regarding the case in question, referral to the legislator... No additional information is provided in the constitutional text. The law regarding organisation and procedures before the Constitutional Court must therefore clarify all of these aspects. Indeed, at the current time, it is impossible to know whether this a posteriori review would be abstract or concrete, if there would be a filter in the form of the ordinary courts or if the constitutional judge alone would be responsible for deciding the admissibility of the case. All of this must be specified by the law regarding the organisation of the Constitutional Court. Article 124 of the Constitution represents a final text that refers the responsibility of organising the operation of the Constitutional Court, determining the applicable procedures as well as the guarantee of independence of the judges back to the law. Given the relatively small number of standard provisions in the Constitution, the law shall be responsible for specifying numerous provisions and procedures that shall shape the true nature of the Tunisian Constitutional Court. *** 6

In conclusion, with regard to this presentation of the new Tunisian Constitutional Court established by the Constitution of 27 January 2014, it is clear that the constituent has chosen the route of progress of the rule of law by granting a specific Court the responsibility of guaranteeing the respect of the Constitution. There is still a long way and an immense task for this new institution, which must ease its way into a landscape where no equivalent existed previously. The Court must find its place and build a case law that demonstrates the effective guarantee of the Constitution. This is a break with the past. The Constitutional Court borrows characteristics from many of its counterparts. It seems to be based on the European or Kelsenian model (constitutional review placed under the authority of a sole jurisdiction) more than the American model (constitutional review carried out by all jurisdictions) but it allows for a new fundamental possibility: the possibility to challenge adopted and implemented law. From now on, all laws, even those of the former regime in which unconstitutional provisions continue to exist, may be subject to review. The citizen must be able to put forth constitutionality arguments before the ordinary judge in order for the constitutional judge to then examine them. This progress is not insignificant, and transforms Tunisia from a "legal State" into one of "rule of law". It remains to be seen if the provisions of the law of organisation shall enhance or diminish the progress that the constituent sought to initiate. 7