Summary of Day 12, Tuesday 14th January 2014: Judicial Powers in New Tunisian Constitution Prove Divisive

Tuesday’s plenary opened amid unity and division – unity recalled by the anniversary of the revolution marking three years since the departure of Ben Ali, and divisions about procedures for protecting judicial independence.

The day’s proceedings began around 16.30 with a speech by Mustapha ben Jaafar, Speaker of the Assembly (Ettakattol Party) who paid homage to the martyrs and those injured in the revolution, youth and all those who had revolted against dictatorship. He also praised the success of Tunisia in setting itself on the path to democracy and overcoming significant challenges, becoming a model of transition based on consensus. He noted in particular the role of the National Constituent Assembly in drafting and finalizing the country’s new constitution, and the need to complete its work calmly, far from all partisan or narrow interests.

Statistics for Day 12

• Articles Adopted: 3
• Articles Adopted Unanimously: 2
• Articles Rejected”: 2
• Average Number of voting deputies per article: 192
• Average number of deputies voting ‘yes” per article:  120
• Average number of deputies voting “no” per article: 52

The plenary resumed its discussion of Chapter Five on judicial powers. Discussion had stalled the previous evening due to divergent views around article 103 on the appointment of judges. This is one of four articles within Chapter Five that form the founding blocks of judicial authority and which provoked deep disagreements, along with article 107 setting out powers to establish courts and prohibiting the founding of exceptional courts, 108 which prohibits efforts to prevent or delay the implementation of judicial rulings, and 109 on the composition of the Higher Judicial Council.

The debates are taking place against the backdrop of a general strike and protests by judges and judges’ unions. There was a significant presence of judges and magistrates in the Assembly in recent days to hold meetings with deputies. Mustapha ben Jaafar held a meeting with a number of judges on Monday evening to discuss their views on the Chapter.

Certain articles within Chapter Five are uncontroversial and were passed with a high majority on Tuesday – article 104 protecting judges from dismissal or transfer, article 105 on the right to access to justice and right to defense and article 106 prohibiting interference with the judiciary.

However, there was a clear inability to reach consensus around two important articles, 107 and 108. This is despite the long meetings of the Consensus Committee and between heads of parliamentary blocs throughout Monday evening and Tuesday morning, which had delayed the start of the plenary.

Article 107 on military courts failed to be adopted, after a proposed amendment to amend the competence of military courts from “military crimes” to “crimes relating to military affairs” was passed.

Article 108 also failed to be adopted. A number of deputies criticized the wording of the draft article which states that judgments be “be issued and executed in the name of the people”. No amendment on this point had been tabled, but Mahmoud Baroudi (Democratic Bloc) raised an objection to the wording, arguing that judgments are issued in the name of the executive, not the people. Abderraouf Ayedi (Wafaa Bloc) on the other hand, argued that judgments are issued in the name of the people. The article failed to be adopted, with 33 for, 41 abstentions and 119 against.

The failure to adopt three articles within Chapter Five indicates the sensitivities around independence of the judiciary. A number of NGOs such as The Carter Centre and Al Bawsala have called for increasing protections within the constitution to ensure independence of the judiciary from executive interference. The various parties within the Assembly argue that they are all for independence of the judiciary but differences arise regarding how to establish a system of checks and balances and achieve reform within the Tunisian judiciary after decades of executive interference and corruption.

Below is a summary of the articles discussed on Tuesday:

Article 104

Draft: “No judge may be transferred without his consent or dismissed, and no judge may be suspended, expelled, or subjected to a disciplinary punishment except in such cases and in accordance with the guarantees provided for by law and by virtue of a justified decision issued by the Supreme Judicial Council.”

Passed with 181 for, 4 abstentions, 0 against.

Article 105

Draft: “Every individual shall be entitled to a fair trial within a reasonable period. Litigators shall be equal before the judiciary.

The right to litigation and the right to defense shall be guaranteed. The law shall facilitate access justice and those without financial means shall be granted financial judicial assistance.

Court sessions shall be public unless the law decides otherwise.”

Proposed amendment to add a new paragraph between the second and third – “The law shall guarantee litigation on two levels” and to add to the last paragraph “the judgment shall only be announced in a public session” passed with 112 for, 33 abstentions, 46 against.

Amended article 105 adopted with 179 for, 10 abstentions, 2 against.

Article 106

Draft: “Any interference with the judiciary is prohibited”.

Unamended article 106 adopted with 190 for, 5 abstentions and 0 against.

Article 107

Draft: “Classifications of courts shall be established by virtue of a law. No exceptional courts or exceptional procedures that may prejudice the principles of fair trial may be established or adopted.

Military courts specialize in the domain of military crimes. The law shall regulate the structure, organization, procedures and internal regulations of the military courts, their applicable procedures and the statue of military judges.”

Amendment to amend to “crimes relating to military affairs” adopted with 128 for, 15 abstentions, 52 against.

Amended article 107 rejected with 19 for, 38 abstentions, 138 against.

Article 108

Draft: “Judgments shall be issued and executed in the name of the people. Failing to execute or impeding the execution of a sentence without legal grounds is prohibited.”

Article 108 rejected with 33 for, 41 abstentions, 119 against.