Summary of Day 14: Thursday 16th January – Assembly Resumes after Marathon Meetings over Judiciary

The Assembly resumed its plenary discussions of the draft constitution after long private meetings between blocs on Wednesday – some as long as six hours – had prevented a plenary being held for the first time since the discussion and voting on the final draft had begun on 3^rd January.

The plenary returned to two articles in Chapter Five on Judicial Authority that had been rejected on Tuesday after deep disagreements. Lengthy meetings on Wednesday seem to have yielded compromise on articles 103, 107 and 108. The former regarding judicial appointments was the subject of disagreement regarding whether judicial appointments should be by the President of the Republic based on the recommendations of the Supreme Judicial Council, or whether the Prime Minister should be allowed to appoint senior judges based on the recommendations of the Minister of Justice. The compromise reached on Thursday was that the President of the Republic appoint judges after after consultation with the Prime Minister and based on the sole opinion of the Supreme Judicial Council, thus limiting the discretion of the executive branch.

A compromised was also reached on article 107, which sets out the mandate of military courts. A divergence of views over whether their mandate should be over “military crimes” or “crimes relating to military affairs” was resolved by limiting the mandate to “military crimes” and “crimes committed by members of the military”.

Article 108 had been the subject of disagreement over whether judgments are issued and executed “in the name of the people” or whether they are issued in the name of the people and executed in the name of the executive only. A compromise wording was reached to state that “Judgments shall be issued in the name of the people”.

Below is a summary of the articles adopted and proposed amendments discussed:

Article 103

Consensual draft proposed: “Judges shall be nominated by virtue of an order made by the President of the Republic with the assent of the Supreme Judicial Council. Senior judges shall be nominated by virtue of a presidential order after consultation with the Prime Minister, based on the sole opinion of the Supreme Judicial Council. Senior judicial posts shall be determined by a law.”

Article 103 adopted with 129 for, 37 abstentions and 18 against.

Article 107

Consensual draft proposed: “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 are courts specializing in military crimes and with crimes committed by members of the military. The law shall regulate the structure, organization, procedures and internal regulations of the military courts, their applicable procedures and the internal regulations of military judges.”

Article 107 adopted with 128 for, 20 abstentions and 28 against.

Article 108

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

Article 108 adopted with 134 for, 13 abstentions and 52 against.

Vote on title of “Sub-Section One: Supreme Judicial Council” – adopted with 159 for, 11 abstentions and 7 against.

Article 109

Proposed amendment to add “Elected members shall undertake their functions for a single six-year term” adopted with 138 for, 22 abstentions and 31 against.

Proposed amendment to change the name of the Supreme Judicial Council to “Supreme Council for Judicial Authority” rejected with 35 for, 29 abstentions, 130 against.

Article 109 adopted without the consensual amendment with 150 for, 13 abstentions and 14 against.

A vote was then taken whether to return to article 109 in order to add the consensual amendment – this was agreed with 150 for, 17 abstentions and 9 against.

Consensual amendment to amend second paragraph to “Two-thirds of each of these entities are composed of judges the majority of whom are elected as well as judges appointed by capacity, while the remaining third shall be composed of independent individual experts. The majority of the composition of these bodies shall be elected.”

Consensual amendment adopted with 156 for, 13 abstentions and 21 against.

Article 109 adopted with the consensual amendment with 147 for, 24 abstentions and 8 against.
Final version adopted: “The Supreme Judicial Council is composed of four bodies, which are the Judiciary Council, the Administrative Judicial Council, the Financial Judicial Council, and the Judicial Councils Organisation.

Two-thirds of each of these entities are composed of judges the majority of whom are elected as well as judges appointed by capacity, while the remaining third shall be composed of independent individual experts. The majority of the composition of these bodies shall be elected. Elected members shall undertake their functions for a single six-year term.

The Supreme Judicial Council shall elect its president from amongst its most senior judges.

A law shall regulate the mandate, structure, and organization of each of the four entities as well as the procedures applicable before each.”

Article 110

Draft: “The Supreme Judicial Council shall enjoy administrative and financial independence and shall manage itself, and shall prepare and discuss its draft budget before the competent committee of the Chamber of Deputies.”

Unamended article 110 adopted with 180 for, 4 abstentions, 1 against.

Article 111

Draft: “The Supreme Judicial Council shall ensure the judiciary’s sound performance and respect for its independence. The Judiciary Councils Organization shall propose reforms and express its view with respect to proposals and draft laws related to the judiciary that are presented to it. Each of the three councils shall decide on the professional conduct of judges and on disciplinary measures.

The Supreme Judicial Council shall submit an annual report to the President of the Republic, the President of the Chamber of Deputies and the Prime Minister. The report shall be published.”

Proposed amendment to set a deadline of the end of July for submission of the Supreme Judicial Council report and to add “the Chamber of Deputies discusses the annual report with the Supreme Judicial Council in a plenary session” passed with 131 for, 13 abstentions, 45 against.

Amended article 111 adopted with 176 for, 6 abstentions and 7 against.

Final version of article 111: “The Supreme Judicial Council shall ensure the judiciary’s sound performance and respect for its independence. The Judiciary Councils Organization shall propose reforms and express its view with respect to proposals and draft laws related to the judiciary that are presented to it. Each of the three councils shall decide on the professional conduct of judges and on disciplinary measures.

The Supreme Judicial Council shall submit an annual report to the President of the Republic, the President of the Chamber of Deputies and the Prime Minister. The report shall be published.”

Vote on title of “Sub-Section Two – Judicial Justice System” – adopted with 186 for.

Article 112

Draft: “The judiciary is composed of the Court of Cassation, appellate courts and courts of first instance.

The public prosecution is part of the judicial justice system, covered by the guarantees provided to the judicial justice system in the Constitution. Judges in the public prosecution system shall practice their tasks within the framework of the penal policy of the State according to the procedure set out by the law.

The Court of Cassation shall prepare an annual report and submit it to the President of the Republic, the President of the Chamber of Deputies, the Prime Minister and the President of the Supreme Judicial Council. The report shall be published.

The law shall regulate the judicial justice system, its mandate, its procedures, as well as the internal regulations of its judges.”

Consensual amendment to amend the first sentence of the second paragraph to: “The public prosecution is part of the judicial justice system, covered by the guarantees provided to the judicial justice system in the Constitution” Adopted with 182 for, 3 abstentions and 1 against.

Amended article 112 adopted with 185 for, 4 abstentions and 1 against.

Final article 112 as adopted: “The judiciary is composed of the Court of Cassation, appellate courts and courts of first instance.

The public prosecution is part of the judicial justice system, covered by the guarantees provided to the judicial justice system in the Constitution. Judges in the public prosecution system shall practice their tasks within the framework of the penal policy of the State according to the procedure set out by the law.

The Court of Cassation shall prepare an annual report and submit it to the President of the Republic, the President of the Chamber of Deputies, the Prime Minister and the President of the Supreme Judicial Council. The report shall be published.

The law shall regulate the judicial justice system, its mandate, its procedures, as well as the internal regulations of its judges.”

Vote on title of “Sub-Section Three: Administrative Judiciary” – adopted with 183 for, 0 abstentions and 0 against.

Article 113

Draft: “The administrative judiciary is composed of the Supreme Administrative Court, administrative courts of appeal and administrative courts of first instance.

The administrative judiciary has jurisdiction over any abuse of power by the administration as well as administrative disputes. The administrative judiciary shall, in accordance with the law, exercise consultative functions.

The Supreme Administrative Court shall prepare a general annual report to be submitted to the President of the Republic, the President of the Chamber of Deputies, the Prime Minister and the President of the Supreme Judicial Council.

The law shall regulate the organization of the administrative judiciary, its mandate, procedures, as well as the internal regulations of its judges.”

Unamended article 113 adopted with 189 for, 0 abstentions and 0 against.

Vote on title of “Sub-Section Four: Financial Judiciary” – adopted with 183 for, 0 abstentions, 0 against.

Article 114

Draft: “The Financial Judiciary is composed of the Court of Audit with its various bodies.

The Court of Audit shall have jurisdiction to supervise the sound management of public funds in accordance with the principles of legality, efficiency and transparency. The Financial Judiciary shall rule on the accounts of public auditors and evaluate the expenditure of public funds and punishes any mismanagement of such funds. The Financial Judiciary shall assist the legislative and executive authorities in monitoring the enforcement and balancing of the state budget.

The Court of Audit shall prepare a general annual report to be submitted to the President of the Republic, the President of the Chamber of Deputies, the Prime Minister and the President of the Supreme Judicial Council. The report shall be published. The Court of Audit shall, when necessary, prepare special reports that may be published.

The law shall regulate the organization, mandate and procedures of the Court of Audit as well as the internal regulations of its judges.”

Proposed amendment to amend the second and third paragraphs of the article rejected with 74 for, 33 abstentions and 82 against.

Unamended article 114 adopted with 188 for, 1 abstention and 0 against.

Vote on title of “Section Two: The Constitutional Court” adopted with 188 for, 0 abstentions, 0 against.

Article 115

Draft: “The Constitutional Court is an independent judicial body composed of 12 competent members having no less than 15 years experience, two-thirds of whom are legal experts.

The President of the Republic, the President of the Chamber of Deputies, the Prime Minister and the Supreme Judicial Council shall each nominate six candidates, two-thirds of whom must be legal experts.

The Chamber of Deputies shall elect 12 members, half from each of the candidates nominated by the President of the Republic, the President of the Chamber of Deputies, the Prime Minister and the Supreme Judicial Council, and election shall be by three-fifths of the members of the Chamber, and for a nine-year term.

If the requisite majority is not obtained, the elections shall be repeated with the remaining candidates and with the same majority. If the requisite majority is not obtained, other candidates shall be nominated, and the election process shall be repeated in the same manner.

One-third of the members of the Constitutional Court shall be renewed every three years. Any vacancies in the composition of the Court shall be filled by the same means adopted during its appointment, taking into account the nominating party and expertise.

The members of the Court shall elect a President and a Vice President of the Court from among its members who are legal experts.”

Consensual amendment to amend the article to: “The Constitutional Court is an independent judicial body composed of 12 competent members, three-quarters of whom are legal experts having no less than 20 years experience.
The President of the Republic, the Chamber of Deputies, and the Supreme Judicial Council shall each appoint four members, three quarters of whom must be legal experts. The nomination is for a single nine-year term.
One-third of the members of the Constitutional Court shall be renewed every three years. Any vacancies in the composition of the Court shall be filled by the same means adopted during its appointment, taking into account the nominating party and expertise.
The members of the Court shall elect a President and a Vice President of the Court from among its members who are legal experts.”

Consensual amendment adopted with 190 for, 4 abstentions and 0 against.

Amended article 115 adopted with 189 for, 3 abstentions and 0 against.

Article 116

Draft: “It shall be prohibited to combine membership of the Constitutional Court and undertaking any other employment or post.”

Unamended article 116 adopted with 191 for, 2 abstentions and 0 against.

Article 117

Draft: “The Constitutional Court is the sole body competent to review the constitutionality of the following:

– All draft laws presented to it by the President of the Republic before their ratification.

– Draft constitutional laws presented to it by the President of the Chamber of Deputies as specified in Article 142

– Draft constitutional laws presented to it by the President of the Chamber of Deputies to determine whether the procedures of amending the Constitution have been respected.

– Treaties presented to it by the President of the Republic before their ratification by law.

– Laws referred to it by courts as a result of a claim of unconstitutionality filed by a litigant, in accordance with the procedures provided for by law.

– The Chamber of Deputies’ rules of procedure presented to it by the President of the Chamber.

The Constitutional Court is also responsible for the other tasks that are allocated to it by the Constitution.”

Consensual amendment to amend the article to the following: “The Constitutional Court is the sole body competent to review the constitutionality of the following:

– Draft laws, upon the request of the President of the Republic, the Prime Minister, or thirty members of the Chamber of Deputies.

– Constitutional draft laws submitted to it by the President of the Chamber of Deputies as specified in Article 142 or to determine whether the procedures of amending the Constitution have been respected.

– Treaties presented to it by the President of the Republic before their ratification by law.

– Laws referred to it by courts as a result of a claim of unconstitutionality filed by a litigant, in accordance with the procedures provided for by law.

– The Chamber of Deputies’ rules of procedure presented to it by the President of the Chamber.

The Constitutional Court is also responsible for the other tasks that are allocated to it by the Constitution.”

Consensual amendment adopted with 174 for, 8 abstentions and 1 against.

Proposed amendment to add a paragraph on reviewing “claims brought by individuals against laws violating their constitutional rights and freedoms” rejected with 87 for, 17 abstentions and 87 against.

Amended article 117 adopted with 191 for, 1 abstention, 0 against.