The approval of the new Tunisian Constitution on January 26, 2014 was a pivotal event. On one hand, it put an end to a fragile and unsteady interim government. On the other hand, it marked the beginning of a large-scale legislative workshop of a delicate nature due to its close connection to the success or failure of the declared democratic project. In fact, the first mechanism of implementing the [post-revolution] Constitution is legislation. The legislature is the body that regulates how the rights and freedoms enshrined within the Constitution are practiced, as well as creates the new institutions and determines their operating methods and procedures.

However, the priorities of this legislative workshop upon which a schedule can be based must first be established, for its work will take a long time. Drafting and implementing legislative reforms in accordance with the new constitutional criteria will require sufficient time for thought and deliberation not only by specialists, but also by social forces, given the need to establish a participatory democracy as outlined in the preamble of the Constitution. This is desirable and commendable, even though the situation is delicate and calls for haste in some sectors.

However, when the National Constituent Assembly (NCA) drew up the Constitution, particularly its transitional provisions, it did make some decisions about priorities and the schedule stemming from them. It specified time limits for the establishment of certain institutions and for introducing the laws relating to them. Thus, introducing these laws have become an urgent matter if the Constitution is not to be violated.

As the situation regarding these laws has more or less already been resolved, I will review them first. I will then address the other texts needed for the Constitution to be put into practice, making some observations about the possibilities and necessities that relate to both their schedule and the methodology with which they are being drafted.

Laws that Must be Introduced Within Time Limits Set by the Constitution

The Basic Law for Elections and Referendums

The electoral law was approved on May 1, 2014 after a number of social forces had strived diligently to help draft it.

In fact, a number of organizations specialized in observing elections presented draft electoral law bills. These organizations are Shahid, Youth Without Borders, and Atide.[1] On February 15, fifteen Assembly representatives adopted the draft submitted by Youth Without Borders. On February 23, the General Legislation Committee began studying the drafts by Atide and Youth Without Borders, and the debate over the two spanned 45 meetings.

Eight organizations also presented a document containing 75 recommendations pertaining to the electoral law to the NCA.[2] These groups based their recommendations on their assessment of the process through which the NCA was elected in 2011. In particular, they considered the issues of voter registration, the monitoring of the electoral campaign and the sources of campaign funding, as well as the power entrusted in the Independent High Commission for Elections.

This bill provoked disagreements that occasionally turned furious, both within and outside the NCA, even though the Assembly had opted not to base the law on a specific white paper, and instead took the various drafts presented by these civic organizations into consideration. After debates that spanned about two and a half months, the draft electoral law was approved.

The reason that the law was restricted to legislative elections, presidential elections, and referendums is that Parliament wants to introduce the law for municipal and regional elections. The new Constitution consecrated a conception of local governance that differs radically from that which existed under the 1959 Constitution. The municipalities are currently run by special delegations appointed as temporary authorities, delegations that lack electoral legitimacy.

The Law Concerning the Judiciary and the Supreme Judicial Council

According to articles 49 and 102 of the Constitution, the judiciary is an independent authority that safeguards the supremacy of the Constitution, the rule of law, and the protection of rights and freedoms. Hence, the most important mechanism of guaranteeing the judiciary’s independence –the Supreme Judicial Council– needed to be established. This Council is in charge of determining the career path of judges, which includes training, accreditation, promotion, transfer, and discipline. According to the Constitution, the Council must be established within 6 months of legislative elections.

The Ministry of Justice announced the first draft of the bill needed to establish this Council after it coordinated and conferred with the most important bodies representing the judicial sector (the Tunisian Judges' Syndicate, the Association of Judges, and the Union of Administrative Judges). The necessity of establishing the Supreme Judicial Council within the given time limit stems not only from the need to comply with the Constitution,[3] but also from the institution’s role in appointing one third of the members of the Constitutional Court. These members must be appointed within a year of the legislative elections. However, there are signs that the constitutional time limit may be exceeded to facilitate the ongoing discussion over the bill prepared by the Ministry of Justice’s technical committee.

The Tunisian Observatory for the Independence of the Judiciary called upon the Ministry of Justice to not rush the presentation of the bill to the Council of Ministers, and to Parliament thereafter, until the issues raised over it have been addressed.

The Law Concerning the Establishment of the Constitutional Court

The Constitutional Court is considered the most important institution outlined in the 2014 Constitution because it guarantees that the Constitution is respected by the legislative authority (i.e., laws must comply with the Constitution) and, in some situations, by the executive authority. This court can intervene to verify a need to extend the state of emergency that the President of the Republic may declare, as stipulated by article 80 of the Constitution. Similarly, it can intervene to try the president if Parliament accuses the latter of grossly violating the Constitution.

Hence, the law concerning this unique institution needed close attention. It would also raise a number of dilemmas because the Constitution’s provisions on several issues concerning the court’s organization are unclear.  Examples of these issues include the traits that non-specialist members of the court must possess, the operational procedures of pleading unconstitutionality before the courts, and the effects of the court’s decisions.

Although the Constitution declared that the Constitutional Court must be created within a year of legislative elections, no related discussions have taken place among existing authorities or within Parliament. However, the Tunisian Association of Constitutional Law did organize workshops with foreign experts in the matter. These workshops produced a series of recommendations that will be presented to Parliament.

Laws that are Needed to Implement the Constitution but whose Schedule will be Set by Parliament

These laws can be differentiated into two groups. The first batch is composed of laws concerning the organization of the different branches of public authority. The second pertain to the guarantee of rights and freedoms. Categorizing the laws in this manner does not mean that they are stand-alone texts, for they are deeply connected.

Parliament does not appear to be prioritizing the laws needed to implement the Constitution. Its priorities are generally tied to the priorities of the government, which is more concerned with the economy, than streamlining institutions or even safeguarding rights. Hence, the first package of laws that Parliament will consider address questions of economy, and pertain to loans and commercial agreements. At the same time, a technical committee of the Ministry of Justice is charged with drafting a revision of the Code of Criminal Procedure. The draft law for combatting terrorism is also considered a definite priority.

The Laws Concerning the Organization of Public

The Basic Law for Municipal and Regional Elections (currently being drafted)

The 2014 Constitution raised new hopes of decentralization and, in particular, a more prominent role for the municipalities. Earlier hopes had been thwarted by the failure of the decentralization project that the post-independence Tunisian state attempted to consecrate, in law and in practice. Furthermore, over the last few years local affairs have been run by special delegations that have lacked the stability, material capabilities, and, in particular, the electoral legitimacy needed to carry out development and planning projects, among other things.

Because all political parties recognize the importance of local authority and therefore the stakes in local elections, they immediately turned their attention to the issue after the results of the legislative elections were announced. The parties that won a share of seats in Parliament began to think about supporting their position on a local level. Those that did not win, or only obtained a limited number of seats, began to see the local elections as an opportunity for rectification that they needed to exploit.

In any event, the government, particularly the Ministry of Interior and Local Assemblies’ divisions, has been drafting a municipal electoral law since the rule of the Troika (the government headed by the Ennahda Movement). To this end, the government has consulted civic organizations with help from the CILG-VNGI. The latter is working on the bill by meeting with a number of organizations in the capital and the provinces, hoping to arrive together at a series of recommendations based on their visions and expectations.

These visions and expectations are founded upon an intention to alter the conception of decentralization in Tunisia, an intention that can be deduced from a number of unfamiliar expressions found in the Constitution. For example, the title of the chapter dedicated to decentralization is “Local Authority” (al-sulta al-mahaliyya) instead of “Local Affairs” (masalih mahaliyya), the term used in the 1959 Constitution. Other examples include the discussion of administrative autonomy (article 132), the discussion of participatory democracy, and the principles of open governance (article 139).

These visions and expectations are based on the disappointment that political life –especially elections– has instilled over the last four years in some sections of society. Youth and women, in particular, do not feel that they have been represented or included in the interim period as much as they deserve to be.

It was in the same vein that the civic organizations that were consulted demanded that vulnerable groups be supported. These organizations redefined “vulnerable groups”, a term that traditionally only encompassed economic destitution to include all groups are disadvantaged. The causes of their vulnerability include the traditional division of roles within society (an issue for women), and the political powers’ lack of faith in their abilities and experience (an issue for youth).

Hence, the participating organizations emphasized the need to adopt an electoral law that complies with articles 46 and 133 of the Constitution. The former concerns equal representation between the genders in all elected bodies; the latter concerns the need to guarantee that youth are represented in local councils. The organizations also stressed that public life in the local sphere is the best opportunity to exercise political responsibilities, and to gain experience. Although civil society has turned its attention to the municipal electoral law, the elections cannot occur until the law of municipalities itself is revised.

The Basic Law of Municipalities

In fact, the renewed conception of decentralization discussed above, as well as article 14 of the Constitution which declares a need for decentralization throughout Tunisia, necessitates the drafting of a new law that takes these things into consideration. This law must also take into consideration experiences of other countries, such as that of France. It will not be possible to establish local governance throughout the republic by turning it in its entirety into municipal districts within just one or two years; such a project could take 5 years or more to complete. Economic, social and demographic studies of the new ground partition would need to be conducted for the resulting municipal divisions to be feasible, and capable of bearing the responsibility of local government. In this area too, the Ministry of Interior and Local Assemblies has prepared a bill, although civil organizations were not involved in the process. Thus far, no information about the bill has been leaked.

The Package of Laws Concerning the Independent Constitutional Commissions

An entire chapter of the Constitution –chapter six– is dedicated to independent constitutional commissions. These commissions represent a new kind of authority that can check the influence of political authorities (the government and parliament) in various manners dependent on the areas in which they intervene. One such body is the Electoral Commission, which ensures the soundness of elections. Another is the Audio-Visual Communication Commission, charged with not only guaranteeing a plurality and diversity of opinions in this sector, but also guaranteeing its integrity and professionalism within the constraints set by the freedom of expression, publication, and media guaranteed by the Constitution. Additionally, there are investigative and research bodies, namely, the Human Rights Commission and the Commission for Good Governance and Combating Corruption. Finally, the Commission for Sustainable Development and Rights of Future Generations plays an advisory role.

The diverse ways in which these commissions intervene [in governance] may explain the Constitution’s declaration that they work to support democracy. Although the Constitution stated that the members of these commissions are elected by a qualified majority in Parliament, it referred the task of explaining their composition, the representation within them, and the methods through which they are elected to the law (article 125). In this regard, the fallout of introducing the law that created the Electoral Commission may serve as a precautionary tale. The law provoked a debate that went so far as to see the composition of the Commission contested before the administrative court. Moreover, the election mechanisms established by this law and the organizations concerned –the first having occurred on December 24, 2014 and the second on February 21, 2015– allowed for party quotas, even though these Commissions are supposed to be independent in order to act as a watchdog over political actors.

On November 19, 2014, a bill relating to the Human Rights Commission was drafted and presented to the Council of Ministers. It contained 45 articles that detailed the commission’s composition and jurisdiction. Its composition includes an office, an advisory council, specialized standing committees, and an executive structure.

The bill pertaining to the Commission for Sustainable Development and Rights of Future Generations has also been drafted. Following two consultations that gathered the heads of the public institutions involved in the field of environment and development, the bill was drafted under the supervision of two university professors and with the involvement of civic organizations, particularly the Tunisian Society for the Environment and Development.

The remaining commissions are the Audio-Visual Communication Commission and the Commission for Good Governance and Combating Corruption. The former is an extremely important body given that the media sector has recently witnessed numerous displays of unprofessional and unethical practice, and is in need of regulation and controls that prevent a return to censorship and political appointments. The latter is one of the mechanisms needed to reform the economic system and facilitate economic revival.

Laws Concerning Human Rights

The Revised Law of the Code of Criminal Proceedings

The Constitution declared a series of principles in this regard, the most prominent of which are found in article 23 and its affiliates. The most important of these principles guarantee human dignity and bodily integrity, and prohibit torture – which has become a crime not subject to statutory limitations. Others include the presumption of innocence (article 27), the prohibition of arbitrary arrest and detention (article 29), the right of prisoners to humane treatment (article 30), and the rights to litigation and defense (article 108).

It is important to note that the Tunisian state’s commitments do not stem only from the Constitution’s provisions, but also from the international agreements that it has signed, which the Constitution considers superior to domestic law. Tunisia has signed some of the most important international human rights treaties and covenants, which means that the Code of Criminal Procedure must now be radically revised so that it conforms to these constitutional guarantees.

More specifically, the procedures relating to pre-charge and preventative detention periods must be reviewed. So must the provisions concerning the right to a lawyer at all stages of investigation, prosecution, and trial, especially during pre-charge detention by the judicial police. Additionally, the right of detainees to a medical examination upon their request, or a request from their families, must be guaranteed in order to combat the phenomenon of torture. In this regard, a revision of the Code of Criminal Procedure is being drafted, but no civil organizations have been involved in the process so far.

The Comprehensive Law for Combating Violence Against Women

A law to combat violence against women is needed given that article 46 of the Constitution stipulates that the state must take the necessary measures to eradicate such violence. It is also needed because of the discrimination this violence embodies (article 21 of the Constitution guarantees equality between male and female citizens in rights and duties, without discrimination), and the obstacle it poses to equal opportunity between men and women in bearing responsibilities (an equality guaranteed by article 46), as well the harm it does to human dignity and bodily integrity (article 43). Most importantly, though, the law is needed because the phenomenon of violence against women is rampant and causing harm on a daily basis to women’s bodies, minds, and health and to society.

In this context, the State Secretariat for Women, Children, and Families resolved to prepare a comprehensive bill aimed at eradicating all forms of violence against women and girls. Experts in various fields, particularly law and sociology, participated in the process, and the United Nations Development Programme (UNDP) also provided support. Thus, the bill has already been drafted. It provided a broad definition of violence against women that encompasses not only physical violence, but also psychological, economic, and symbolic violence: any gender-based act that results in harm or psychological, physical, or economic suffering, or any threat of such an act.

This bill, by virtue of its comprehensiveness (it aspired to combat all forms of violence irrespective of the domain within which they occur), required that numerous revisions [be made to existing laws], including the Criminal Code, the Code of Criminal Procedure, the Labor Code, and the Code of Personal Status. However, after the draft was submitted to the State Secretariat for Women, Children, and Families, it was frozen. The ministry declared that it had no intention of presenting the law to the Council of Ministers for deliberation.

Conclusion

In light of the preceding discussion, Parliament’s task is clearly difficult as it will require setting priorities. This involves making well-advised decisions, not arbitrary decisions or ones that are based on narrow or circumstantial political considerations. These choices must be made quickly, yet without rashness.

Parliament must also realize that the participatory democracy stipulated in the Preamble of the Constitution is not a slogan or a sash with which to adorn the Constitution’s text; rather, it is a practice and a course that must be accepted. The more that national consultations are followed and the more that experts are consulted in the process of drafting bills, the better the chances that the community will adopt or even internalize these laws and, therefore, respect and defend them.

 

Salsabil Klibi teaches at the Faculty of Legal, Political, and Social Sciences of Tunis.

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[1] Shahid submitted an electoral law bill to the National Constituent Assembly on February 18, 2014. Youth Without Borders submitted an electoral law bill on February 14, 2014. Atide submitted a bill for voter registration on October 10, 2013.

[2] These eight organisations include the Tunisian Association of Constitutional Law, I Watch, Mourakiboun, Atide, Youth Without Borders, the League of Tunisian Women Voters, the Shahid Observatory, and the Ofiya Network.

[3] In his first meeting with representatives from the Association of Judges and the Tunisian Judges' Syndicate on February 12, 2015, the new Justice Minister Mohamed Salah Ben Aissa affirmed his ministry’s commitment to the time limits for establishing the Supreme Judicial Council set by the Constitution.