A Guide to the Tunisian Legal System
Published August 2005
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Dahmène Touchent is responsible for the Algerian web site LEXALGERIA. He received his Diplôme d’études supérieures from the National Financial Institute, Algiers, Master of Law degree from Paris XIII University, and another degree in export law from Paris V University. He teaches law and economics courses to first-years and upper-class students at Institut européen des entreprises and commercial and social law at University of Paris XIII. He has written on the law of Northern Africa (Algeria, Morocco and Tunisia), as well doing studies on French labour and consumer law.
Update to an article previously published on LLRX.com, September 16, 2002
Table of contents
Tunisia, a republic of northern Africa, is bounded on the north and east by the Mediterranean Sea, on the south by Libya, and on the west by Algeria. The population is largely Berber and Arab, and Islam is the dominant religion. Arabic is the official language, although French is widely spoken.
Home of the ancient city of Carthage, the Romans, Arabs, Ottoman Turks and French realized its strategic significance, making Tunisia a hub for control over the region.
In March 1956, France granted full independence to Tunisia and a republic was declared with Bourguiba as president. President Bourguiba declared Tunisia a republic in 1957 and in June 1959, Tunisia adopted a Constitution modeled on the French system. In 1987, Bourguiba was deposed by his prime minister, Zayn al-Abidin bin Ali (Ben Ali). Ben Ali runs for re-election unopposed in 1989 and 1994 and wins the 1999 elections.
A constitutional amendment, approved in 2002 in a referendum by a similar margin, permitted the president to run for more than two terms, and in 2004 Ben Ali was reelected with 95% of the vote; he again faced only token opposition.
The executive power is vested in the President of the Republic, assisted by a Government, and directed by a Prime Minister.
The president of Tunisia is the head of state. He is the guarantor of national independence, of the integrity of the territory, and of respect for the Constitution and the laws as well as the execution of treaties. He watches over the regular functioning of the constitutional public powers and assures the continuity of the State.
The President of Tunisia represents the Executive Power assisted by a Government directed by a Prime Minister.
The president is the head of state of the Republic of Tunisia. He appoints and dismisses the prime minister, who is the head of the Government. The president promulgates the laws. The president also represents the republic in international affairs, and he formally appoints and dismisses the civil servants, soldiers, and judges of the state. The president has the right to pardon criminal offenders in the name of the republic.
He is the guarantor of national independence, of the integrity of the territory, and of respect for the Constitution and the laws as well as the execution of treaties. He watches over the regular functioning of the constitutional public powers and assures the continuity of the State. He is elected for five years by universal, free, direct, and secret suffrage, within the last thirty days of the term of office.
Candidate for the Presidency must be a Tunisian who does not carry another nationality, who is of Moslem religion and whose father, mother, and paternal and maternal grandfather have been of Tunisian nationality without interruption. Also, the candidate must be at least forty years and at most seventy years of age on the day of submitting his candidacy, and enjoy all his civil and political rights.
The declaration of candidacy must be recorded in a special register before a commission composed of the President and four members. The commission rules on the validity of the candidacies, the challenges received, and proclaims the result of the ballot.
The President is the Supreme Commander of the Armed Forces. He accredits diplomatic representatives to foreign powers.
The President may submit to a referendum any bill relating to the organization of the public powers or seeking to ratify a treaty which, without being contrary to the Constitution, may affect the functioning of the institutions.
Also, the President ratifies the treaties, declares war and concludes peace with the approval of the Parliament, exercises the right of pardon and directs the general policy of the Nation, defines its fundamental options, and informs the National Parliament accordingly. He communicates with the Parliament either directly or by message.
He promulgates constitutional, organic, or ordinary laws and ensures their publication in the Official Journal of the Tunisian Republic within a maximum period of fifteen days counting from the transmission by the President of the National Parliament. During this period, the President of the Republic may return the bill to the National Parliament for a second reading. If the bill is adopted by the National Parliament with a majority of two-thirds of its members, the law is promulgated and published within a second period of fifteen days.
He watches over the execution of the laws. He exercises the general regulatory power and may delegate all or part of it to the Prime Minister.
The President nominates the highest civil and military officers on the recommendation of the Government.
Term of Presidential functions
In case the Presidency of the Republic becomes vacant on account of death, resignation, or total incapacity, the President of the National Parliament immediately is temporarily invested with the functions of the Republic for a period of at least 45 days and at most 60 days. He takes the constitutional oath before the National Parliament, and during its absence, before the Bureau of the National Parliament.
The interim President of the Republic may not be a candidate for the Presidency of the Republic even in the case of resignation.
The interim President of the Republic discharges the functions of the President of the Republic, however, without resorting to referendum, dismissing the Government, or dissolving the National Parliament. During this period, a motion of censure against the Government cannot be presented.
During the same period, presidential elections are organized to elect a new President of the Republic for a term of five years.
The new President of the Republic may dissolve the National Parliament and organize early legislative elections.
The President nominates the Prime Minister, and on his suggestion, the other members of the Government. The President presides over the Council of Ministers.
The Prime Minister directs and co-ordinates the work of the government. He substitutes, as necessary, for the President in presiding over the Council of Ministers or any other Council.
The President dismisses the Government or one of its members on his own initiative or on the recommendation of the Prime Minister.
Bills are deliberated on in the Council of Ministers. Decrees of a regulatory character are countersigned by the Prime Minister and the interested member of the Government.
The members of the Government have the right of access to the Parliament as well as to its committees. Any deputy may address written or oral questions to the Government.
The Parliament may, by a vote on a motion of censure, oppose the continuation of the responsibilities of the government, if it finds that the government is not following the general policy and the fundamental options. The motion is not receivable unless it is motivated and signed by at least half of the membership of the Parliament. The vote may not take place until 48 hours have elapsed after the motion of censure. When a motion of censure is adopted by a majority of two-thirds of the deputies, the President accepts the resignation of the government presented by the Prime Minister.
The Government (the Ministers) puts into effect the general policy of the nation, in conformity with the orientations and options defined by the President of the Republic. The Government is responsible to the President for its conduct.
The people exercise the legislative power through a representative organ called National Parliament.
The Tunisian parliament is the central representative organ of the people. It is composed by the Chamber of Deputies, and the Chamber of Advisors. The members of the Chamber of Deputies are elected by universal, free, direct, and secret suffrage, according to the modalities and conditions determined by the Electoral Law.
Any voter, born of a Tunisian father, who is at least twenty-five years of age on the day of submission of his candidacy, is eligible for election to the National Parliament.
The Chamber of Advisors is composed of advisors whose number shall not exceed that of two-thirds of the members of the Chamber of Deputies. The Electoral Code determines the procedure for setting the number every six years, on the basis of the number of members of the Chamber of Deputies in office.
The members of the Chamber of Advisors are designated as follows: One or two members from each governorate, according to population, are elected at the regional level, from among the elected members of local authorities. One-third of the members shall be elected at the national level from among employers, farmers and workers. Candidates shall be proposed by the concerned professional organizations, from lists comprising at least twice the number of seats allocated for each category. Seats are distributed equally among the concerned sectors.
The members of the Chamber of Advisors are elected by free and secret ballot by the elected members of local authorities.
The Electoral Code defines the methods and terms concerning the election of the members of the Chamber of Advisors.
The remaining members of the Chamber of Advisors are appointed by the President of the Republic from prominent figures and holders of positions of responsibility at national level.
The term of office for the members of the Chamber of Advisors is six years. Half of its composition is renewed every three years.
The Chamber of Deputies is elected for a period of five years in the course of the last thirty days of its mandate.
A candidate to the Chamber of Deputies must be Tunisian either from his father or mother’s side, and twenty-three years of age. The electoral code, however, states that persons convicted of a crime (convicted entailing an unsuspended sentence of imprisonment in excess of three months) who have unresolved bankruptcy, are insane, or are active members of the armed and security forces cannot run for office. The term of office is for a renewable five-year period.
In case of impossibility of proceeding with the elections during the designated time because of war or imminent peril, the mandate of the Chamber of Deputies is extended by a law until the time it is possible to proceed with the elections.
The Chamber of Deputies meets each year in ordinary session which begins during the month of October and ends during the month of July. However, the first session of every legislature begins during the first fifteen days of November.
During the vacation, the Chamber of Deputies may meet in extraordinary sessions on the request of the President or the majority of deputies.
No member of the Chamber of Deputies or the Chamber of Advisors can be arrested or prosecuted for the duration of his mandate for a crime or misdemeanor as long as the Chamber of Deputies or the Chamber of Advisors has not lifted the immunity which covers him. However, in the event of flagrant offence, arrest procedure is permitted, in such a case, the Chamber of Deputies or the Chamber of Advisors has to be informed without delay.
The right to introduce a bill is possessed equally by the President and by the deputies. However, priority is given to bills presented by the President of the Republic.
The parliament may authorize the President to issue decree-laws within a fixed time limit and for a specific purpose which must be submitted for ratification to the parliament upon expiration of that time limit.
Organic and ordinary laws are passed by the Parliament by absolute majority. A draft organic law may not be submitted for deliberation by the Parliament until after the expiration of a period of fifteen days from its filing.
The Parliament votes on bills concerning financial laws and the regulation of the budget under the conditions stipulated in the organic law of the budget. The budget must be voted on by December 31. If by that date the National Parliament has not made a decision, the provisions of the financial bill may be implemented by decree, in three month renewable installments.
Once the bill has been passed by the parliament, it must be countersigned by the President. For the law to take effect, the president needs to assent and promulgate the law.
Dissolution of Parliament
If the Parliament has adopted a second motion of censure with a two-thirds majority during the same legislative period, the President of the Republic may either accept the resignation of the government or dissolve the National Parliament.
The decree dissolving the National Parliament must include the calling of new elections within a maximum period of thirty days.
Shari’a courts were abolished in 1956, and since then Tunisia has had a single unified judiciary structure.
Magistrates are nominated by decree of the President of Republic upon the recommendation of the Superior Judicial Council.
The Superior Judicial Council serves as the administrative authority of the judiciary. The Council is presided over by the President of the Republic and is composed of senior jurors. The Ministry of Justice administers the judiciary.
The current judicial system has civil, criminal, and administrative departments.
At the base of the Tunisian judicial structure are the 51 District Courts, in which a single judge hears each case. The jurisdiction of the District Courts extends to civil cases of lesser value, as well as cases related to issues of labor and nationality, civil affairs, personal estate actions, actions in recovery and injunctions to pay.
The District Courts rules on first or last instance:
It rules in chambers (référé) in these cases:
The Courts of First Instance serve as the appellate courts for the District Courts. There is a Court of First Instance located in each region of Tunisia. Each Court is composed of a three-judge panel.
The Courts of First Instance are empowered to hear all commercial and civil cases, irrespective of the monetary value of the claim.
The court of first degree rules on:
The Appeals Courts serve as the appellate courts for decisions made in the Courts of First Instance. Cases that were originally heard in the District Courts and appealed to the Courts of First Instance may be further appealed to the Supreme Court.
The Court of Appeal is only qualified to rule on:
The three Appeals Courts are located in Tunis, Sousse, and Sfax.
The Supreme Court, or Court of Cassation, is located in Tunis and serves as the final court of appeals. The Court has one criminal and three civil divisions.
The organization of the criminal court system is similar to that of the civil court system.
The High Court meets in a case of high treason committed by a member of the Government.
The constitutional Council examines the bills which are presented to him by the President of the Republic for conformity and compatibility with the Constitution.
The Council is obligatorily consulted for the following sujects:
In the same way, the President obligatorily submits to the Constitutional Council the treaties and all questions concerning the organization and the work of the institutions
The Basic Law can only be changed by the President of the Republic or by no less than one-third of the members of the Chamber of Deputies, provided the amendment does not undermine the republican form of the State.
The President of the Republic may put to a referendum proposals for revision of the Constitution.
The Chamber of Deputies studies the proposed revision following a resolution adopted by absolute majority, after identification of the purpose of the amendment and its study by an ad hoc committee.
In case of non-recourse to referendum, the draft amendment of the Constitution can be adopted by the Chamber of Deputies by a two-thirds majority upon two readings; the second reading takes place at least three months after the first.
In case of recourse to referendum, the President of the Republic submits the draft amendment of the Constitution to the people after it has been adopted by an absolute majority of the Chamber of Deputies upon a single reading.
The Economic and Social Council is a consultative assembly in economic and social matters. Its composition and its relations with the National Parliament are determined by law.
The municipal and regional councils conduct the local affairs under the conditions determined by law. For administrative purposes, Tunisia is divided into 23 governorates, each headed by a governor who is appointed by the president.
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