Tunisia’s Missing Court

Public institutions can never be fully de-personalised. They are composed of human beings and are therefore fallible, subject to irrationality, and inevitably shaped by personalised decisions. Constitutionalists – going back to the earliest political philosophers of the Enlightenment – have always been aware of this. Indeed, it is a fundamental reason for having constitutions in the first place. Constitutions are legal guardrails on the human element of institutional decision-making, a check on the inevitable temptation to abuse power.

But who oversees the constitution? This is a critical question for every constitutional democracy. The answer does not lie merely in identifying which body is legally empowered to exercise oversight. It also depends on whether the designated overseer enjoys legitimacy. Without “legitimate oversight”, a democracy will continuously lurch from one constitutional crisis to the next.

In recent times, the ultimate responsibility for constitutional oversight has often been entrusted to constitutional courts. Tunisia is no exception. Initially, the country had a constitutional council that exercised final oversight powers. However, more recently it attempted to establish a constitutional court—once in 2014, and again in 2022—the former effectively buried alive, and the latter still struggling to see the light of day.

In 2014, the Tunisian Constitution of 1959 was replaced by a new one as part of the country’s democratic transition. Among its provisions was the commitment to establish a constitutional court, whose composition is envisaged in Article 118. The prerogatives of the court, as well as its powers of constitutional oversight, were outlined in more detail in Organic Law 50 of 2015.

Although enshrined in the constitution and in law, the 2014 constitutional court was never established, owing to unintended deadlocks in the judicial appointment process. Appointment powers were so widely distributed across the executive, legislative, and judicial branches, and the required threshold of consensus was so high, that agreement on appointments proved impossible.

Fast forward to 2022 and the situation has gone from bad to worse. Tunisia’s current President, Kais Saiid, repealed the constitution of 2014 and replaced it with the constitution of 25 July 2022, which devotes a chapter to the creation of a new constitutional court with slightly modified prerogatives and an entirely different composition. Article 125 of the new constitution provides that the new constitutional court will be composed of nine members: three of the most senior magistrates of the judicial order (i.e., the presidents of the chambers of the Court of Cassation); three of the most senior magistrates of the administrative order (i.e., the presidents of the administrative courts); and three of the most senior magistrates of the Court of Auditors. The court is appointed by an order of the President.

The new appointment process was supposed to both avoid the procedural deadlock experienced with the 2014 constitutional court and reduce politicisation, since the designated magistrates are presumptively competent and independent by virtue of their prior offices. Yet, even this version of the constitutional court has not seen the light of day; the President has not appointed its members and, as such, constitutional review in Tunisia remains a mirage.

This is where international practices and standards come into play.

To overcome its present impasse, Tunisia has the opportunity to draw on the accumulated knowledge and experience of constitutional court formation elsewhere and to craft a context-specific solution.

At the initiative of the Institute for Integrated Transitions (IFIT), I had the privilege to serve for three years as a member of a High-Level Advisory Panel composed of distinguished judges and jurists from a wide spectrum of legal systems, with the mandate to support the development of the first-ever global standards for judicial appointments to Apex Courts (defined through the project as the highest judicial authority on constitutional matters). The result was the Constitution Hill Global Guidelines on Apex Court Appointments, already translated into five languages, which form the focus of this symposium.

The flexibility of the Guidelines is one of their strengths. They encourage in-depth debate on the criteria and procedures for Apex Court appointments, rather than imposing a single point of view. For example, the Guidelines set out individual criteria of character – i.e., integrity, composure, impartiality, independent mindedness, courage, and collegiality – which are particularly important for Tunisia, given its limited history of democracy and judicial independence. Equally important are the collective criteria of inclusion – i.e., viewpoint, professional, and demographic diversity. None of these criteria are found in the 2022 Constitution.

In addition, rather than automatic appointment of the most senior members of the existing branches of the Tunisian judiciary, there could be – as the Guidelines indicate – an application and nomination procedure, followed by an interview process whereby candidates are assessed according to the appointment criteria. Likewise, if the President were to have the power of selection, it could avoid his domination of the rest of the appointment process. And all of this could be reinforced through security of tenure, judicial immunity, and tightly circumscribed procedures for judicial discipline, suspension and removal.

Given the far-reaching powers that Apex Courts wield, it is impossible to render their establishment and functioning a purely technical and legal affair, devoid of politics. This is a reality even in established democracies, never mind in countries with democratic deficits. Yet, a dispassionate debate in Tunisia on the Constitution Hill Global Guidelines on Apex Court Appointments could help revive the dream of a constitutional court worthy of the name – a dream that the country has already twice failed to bring into reality.