: A
Guide to the Tunisian Legal System
Published August 2005
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
Update
to an article previously published
on LLRX.com, September
16, 2002
<http://www.llrx.com/features/tunisia.htm>
Table of contents
The Executive Power: The Government
The Legislative Power: Parliament
The Economic and Social Council
Other (Semi-) Governmental Institutions
Legislation (Laws, Jurisprudence and Treaties)
Literature (Textbooks on Civil Law, Administrative
Constitutional Law, Criminal Law)
Home of the ancient city of
In March 1956,
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 the Tunisian Republic
The president of
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
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
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.
Ministers
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.
Shari'a courts were abolished in
1956, and since then
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
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
The Supreme Court, or Court of Cassation, is located
in
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,
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Mabrouk Mohieddine, "Treaty of Tunisian
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