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A Guide to the Tunisian Legal System

 

By Dahmène Touchent

 

Published August 2005
Read the Update!

 

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

<http://www.llrx.com/features/tunisia.htm>

 

Table of contents

 

Introduction

The Executive Power: The Government

The prime minister

Ministers

The Legislative Power: Parliament

The Judicial Power

Civil jurisdictions

The District Courts

The Courts of First Instance

The Appeals Courts

The Supreme Court

Penal Jurisdictions

The High Court

Other Authorities

The Constitutional Council:

The Economic and Social Council

Administrative Setup

Other (Semi-) Governmental Institutions

Law Faculties

Legislation (Laws, Jurisprudence and Treaties)

Literature (Textbooks on Civil Law, Administrative Constitutional Law, Criminal Law)

Legal Sites

 

Introduction

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: the Government

The executive power is vested in the President of the Republic, assisted by a Government, and directed by a Prime Minister.

 

The President of the Tunisian Republic

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.

 

Designation

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.

 

Functions

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 Prime Ministry

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.

 

Ministers

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.

 

Ministers

 

The Legislative Power: Parliament

The people exercise the legislative power through a representative organ called National Parliament.

 

Designation

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.

 

Functions

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.

 

Legislative Competencies

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.

 

The Judicial Power

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.

 

Civil jurisdictions

The District Courts

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:

 

  • demands for alimony introduced on a purely principal basis;
  • possessor actions;

 

It rules in chambers (référé) in these cases:

  • saisies;
  • urgent reports;

 

The Courts of First Instance

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 constitution of the companies or their directions
  • relating to dissolution or liquidation
  • referring to the rectification companies which know economic difficulties and their bankruptcy

 

The Appeals Courts

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:

  • appeals of the judgments given in the first resort by the courts of first authority of their district;
  • appeals of the ordinances of summary procedure returned by the president of the court of first authority as well as injunctions to pay;

 

The three Appeals Courts are located in Tunis, Sousse, and Sfax.

 

The Supreme Court

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.

 

Penal jurisdictions

The organization of the criminal court system is similar to that of the civil court system.

  • The District Courts have jurisdiction to hear all misdemeanor cases.
  • The Courts of First Instance hear all other criminal cases except felonies.
  • A grand jury hears at first felony crimes. Once a judge issues an indictment based on the grand jury proceedings, the case is submitted to the criminal court division of the Appeals Court.
  • The criminal division of the Court of Cassation serves as the final appellate court for criminal matters.

 

High Court

The High Court meets in a case of high treason committed by a member of the Government.

 

Other Authorities

The Constitutional Council

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:

  • Organic laws, ·
  • relative laws,
  • the general methods of application of the Constitution,
  • nationality,
  • the state of the people,
  • the obligations,
  • the determination of the crimes and offences and the sorrows which are applicable for them,
  • the procedure in front of the various commands of jurisdictions,
  • amnesty,
  • the fundamental principles of the mode of the property,
  • education,
  • public health,
  • labour law,
  • social security,

 

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

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.

 

Administrative Setup:

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.

 

Other (Semi-) Governmental Institutions

 

Law Faculties

  • Free University of Tunis
  • University of letters, arts and humanities (Tunis I):
  • University of Sfax: Faculty of Law
          Route de Sidi Mansour, km 10
          B.P. 704
          3061 Sfax, Tunisia
          Phone::  (216 4) 27.2441; 27.2331
          Fax: (216 4) 27.2245
  • Faculté des sciences juridiques, politiques et sociales de Tunis
          14, Rue Hédi Karray
          2080 Ariana, Tunisia
          Phone::  (216 1) 23.0235; 75.3892; 76.6919
          Fax:  (216 1) 71.7255
  • Faculty of Law, Politics and Economics Science of Tunis
          Campus Universitaire
          1060, Tunis, Tunisia
          Phone::  (216 1) 51.0323; 51.0627; 51.0500
          Fax:   (216 1) 51.0139
  • Faculty of Human and Social Sciences of Tunis
          94 A. 9 Avril 1938
          1007, Tunis, Tunisia
          Phone::  (216 1) 56.4713; 26.4797
          Fax:   (216 1) 56.7551
  • University of Zaituna: Faculty of Law
          29, rue Asdrubal
          1002, Tunis, Tunisia

 

Legislation (Laws, Jurisprudence and Treaties)

 

Literature (Textbooks on Civil Law, Administrative Constitutional Law, Criminal Law)

 

  • Adminsitrative law

Durupty, Michel, “administrative Institutions and Tunisian administrative law”, Editions of the national scientific research Center, Paris

Mabrouk Mohieddine, “Treaty of Tunisian Administrative law”, Tunisian House of the Edition, Tunis

Ferchichi, Bechir, the work of the institution of the deferment in Tunisian criminal law, “Center of studies, search and publications of Faculty of law, political and economic sciences of Tunis”, Tunis.

Berkeley, Tunisia since independence; : the dynamics of one-party government,: University of California Press , 1965,

Dwight L. Ling, Tunisia, from protectorate to republic, Bloomington : Indiana University Press, 1967.

Tunisia: A Country Study, 3rd ed., Nelson, ed., Washington, D.C., 1988

Ezzeddine Moudoud, Modernization, the state, and regional disparity in developing countries : Boulder, Colo Tunisia in historical perspective, 1881-1982 ,. : Westview Press , 1989

Andrew Borowiec, Modern Tunisia : a democratic apprenticeship, Westport, Conn. : Praeger, 1998

Michel Camau, Vincent Geisser, Le syndrome autoritaire : politique en Tunisie de Bourguiba à Ben Ali, Paris : Presses de Sciences po , 2003.

 

  • Corporate debt

Ammar, Abdelmajid, “the personal liability for the leaders of corportaions in the event of collective procedure”, Chabloz Printing works, Tolochenaz

 

  • Comparative law

Ben Aissa, Mohamed Salah the principle of speciality and economic publicly-owned establishments in Tunisian and French law, “studies Center of Faculte of right and political and economic sciences of Tunis”

 

  • Criminal Law

Baccouche, N La protection de l’autorité publique dans le Code pénal tunisien Tunis, ENA 1985

Baccouche, Néji "Le problème des délits électoraux en Tunisie" Revue tunisienne de droit (1982)

Ben Achour, Rafâa "Les protections et les garanties constitutionnelles des droits et libertés en

Tunisie" Revue tunisienne de droit (1989)

Ben Achour, Yadh "Islam et Constitution" Revue tunisienne de droit (1974)

Ben-Halima, S "La régionalisation du droit pénal international et la protection des droits de l'homme dans les procédures de coopération internationale en matière pénale: Tunisie" 65 Revue

Internationale de Droit Pénal (1994) 487-491

Human Rights Watch The administration of justice in Tunisia: Torture, trumped-up charges and a tainted trial (E1201) 3/00

Jazi, Daly Les rapports entre l’Etat et le citoyen dans la Tunisie indépendante: Le problème des liberté publiques Thèse de doctorat de l'Université de Paris II, 1982

Khalfallah, L "Le mauvais traitement des enfants à travers le droit tunisien" Revue de jurisprudence et de législation (1997)

United Nations Freedom of opinion and expression - mission to Tunisia E/CN.4/2000/63/Add.4

Zine, M & Halima, SB "Les mouvements de reforme de la procédure pénale et la protection des droits de l'homme en Tunisie" Revue Internationale de Droit Pénal (1993) 1345-1355.

 

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