Executive Summary:
Public and academic debates abound on the diagnosis of the problems facing the judicial sector in Tunisia. Considering the current problems citizens face and the lack of accurate and useful information to answer their questions, it is necessary to examine the Tunisian justice system.
The most effective way to reform the Tunisian judicial system is to accurately diagnose the problems and find solutions that are consistent with the general and specific perspectives of lawyers and the judicial administration.
This policy brief addresses three key sets of problems with the judicial system – 1) the structural issues 2) ambiguities of the courts’ jurisdiction, and 3) the limitations of the attempted reforms. Consequently, this brief advances alternative solutions to the judicial system’s problems.
Introduction:
Justice is the foundation of state balance, and as the scholar Abd al-Rahman Ibn Khaldun said, “justice is the basis of civilization”. There is no peace for the people without a judiciary system that protects and rehabilitates them and no State or institution can last without a legal arsenal, supported by a strong and efficient judicial system, that protects and safeguards it.
Therefore, studying the Tunisian judicial system requires an analysis of the current structural problems and an assessment of the effectiveness of judicial reform attempts by considering their impact on both the economy and society. This is with the understanding that the legal system provides guarantees for establishing a suitable economic climate and stimulating investment.
In any contemporary state, there is always a dialectic relationship between the law and the procedures that uphold citizens’ rights and liberties where the law can be used to exercise power or preserve rights and freedoms. Modern societies recognize the importance of establishing the principles of justice and the rule of law that prevents tyranny and the monopolization of decision-making.
Since the age of enlightenment, principles of justice have focused on shifting from the centralization of power in society to the distribution of roles and responsibilities. This led to the principle of separation of powers which emerged in the 17th century and which empowered the judiciary to safeguard the rights and freedoms of individuals and establish the Rule of Law.
In Tunisia, the judiciary was based on one judge only, which is the only type recognized in the history of the Islamic judiciary.
After independence, all Tunisian courts were unified and cases transferred to the Court of First Instance while judges were integrated into the common law framework[1]. Although the Tunisian judicial system is a long-standing institution, it suffers from many difficulties that have prevented it from keeping pace with the economic and social developments. Some of these problems are due to the judicial system’s structural problems, such as judges becoming increasingly ineffective at creating a just and equitable social environment, and others are due to failed reform attempts, such as the lack of radical solutions to ensure that the judicial system provides true justice[2].
This policy brief addresses 1) the structural problems of the judicial system, 2) the limits of attempts to reform it, 3) the ambiguity of the jurisdiction of the courts. This brief ultimately advances solutions to fix the judicial system’s current problems.
Structural problems of the judicial system:
The judicial system has been facing serious difficulties for several years. The revolution exacerbated these problems by further complicating legal proceedings. This situation resulted from an accumulation of several factors, such as limited human resources, an increase in the number of cases, and the limited financial capabilities of the judicial system. This has caused delays in deciding cases which, in turn, has negative economic consequences.
Limited human resources versus the increasing number of cases:
The management of the judicial system requires the intervention of many institutional bodies such as judges and clerks, in addition to peripheral bodies such as bailiffs, notaries, and lawyers. The number of civilian judges reached 2,168 at the end of 2016, of whom 836 are in the first rank, 634 in the second rank, and 698 in the third rank, which is the highest. The corps of lawyers increased from 1,400 in 1991 to about 8,000 in 2011. Despite a large number of administrators of the judiciary, the sector still suffers from many difficulties. The number of judges is not commensurate with the volume of presented cases, around 450 cases per judge per month. The number of civil lawsuits amounted to 2,492,217 cases between 2017 and 2018, similar to the cases in the real estate court that amounted to 41,538 cases. These figures reflect the condition of the judicial system: a sector characterized by fragility due to the shortage of judges and a large number of procedures followed in resolving disputes on the one hand, and requests for delaying cases and litigants’ adherence to their requests without evidence on the other hand. Additionally, the sector endured the negative legacy of the previous regime. A judge was caught between respecting and upholding the law on the one hand and political decisions on the other, such as arbitrary transfers and freezing of those who were not loyal to the regime. Despite the recent decline in these practices, their ripple effect persists.
The limited financial capabilities of the judicial system:
Similar to the human resource issues of the judicial system, material issues, such as the number of courts, represent an important obstacle faced by the judicial system. As for the civil court system, there are 28 courts of First Instance with a varying number of cases depending on the year. During the 2015–2016 judicial year, the Tunis Court of First Instance (located at Bab Bnat) ruled in 2,560 criminal cases, followed by the Sousse court with 600 criminal cases. In civil cases, the Tunis court alone ruled about 43,000 cases, compared to 13,000 cases in Sfax, and the number dropped to only 1,000 cases in Tataouine. As for the district courts, there are 85 courts nationwide, and an additional 16 courts of appeals. The Tunis Court of Appeal accounts for the largest number of appeals cases. For instance, in civil cases, the Tunis court alone ruled about 15,000 cases, compared to 5,616 cases for the Sfax court and 486 cases only for the Sidi Bouzid court[3]. As per the administrative judiciary, there is one court in Tunisia with branches in the rest of the governorates. The composition of the administrative court means that it faces more severe challenges than those faced by the civil court. The administrative court is subject to duality in litigation in some cases such as cases of administrative responsibility, in which a civil judge oversees the primary phase while the appeals phase is overseen by an administrative judge despite the existence of a jurisdiction dispute council since 1996. The coexistence of two judicial bodies causes fundamental complications, the most important of which is the difficulty in determining the competent judicial system. Two quarreling parties can –in good or bad faith – appeal to a judge who is not relevant for the dispute. Also, the courts can misjudge their jurisdiction and wrongly determine that they are the competent authority for the case. Therefore, the difficulty of determining the judge’s suitability has a direct relationship to the judicial process which can be seriously affected by the absence of appropriate mechanisms[4]. Faced with these problems, several critics have called for judicial reforms to make the system more suitable for the current and future challenges of the country.
The economic implications of protracted decisions:
The slow pace of procedures and the issuance of the appropriate decisions negatively impact the economy. As the President of the Judges Association stated: “The current working conditions of the judicial system may negatively affect economic development. If the commercial court takes from four to six years to decide on a case, which investor will risk investing their money here?” He explained that settling any commercial dispute is bound to be slow because the ruling on the dissolution of a commercial company or a commercial asset is a complex matter. Consequently, the judge has to be prudent in preparing the case so that he/she can provide a fair ruling because this has a direct impact on the status of a company that has many employees, which may cause commercial instability [5].
Blurred lines of jurisdiction:
A functioning judicial system requires organizational rules that settle disputes. These rules regulate the organization of courts at the territorial or functional level. However, the overlap between the administrative and civil judiciary has contributed to the ambiguity over jurisdiction.
Problems related to territorial jurisdiction:
Despite what was approved by the legal codes, as well as the special laws regulating the territorial jurisdiction of the courts, the latter is still experiencing instability due to the numerous procedures which have contributed to the overcrowding of some courts at the expense of others. Territorial jurisdiction is the authority given to courts to adjudicate cases and disputes based on location according to the territorial jurisdiction rule in chapter 3, articles 30 to 33 of the Code of Civil and Commercial Procedures (CCCP). Determining the home address of the defendant, or the company or organization headquarters or headquarters of its branches, if the dispute concerns them, is crucial because it determines the territorial jurisdiction of the court.
The main problem with territorial jurisdiction is that the legislator grants the plaintiff the possibility to choose, according to article 36 of the CCCP, according to what was mentioned in, and the option indicates that the plaintiff has the option to adopt the general rule mentioned in Article 30 of the CCCP, i.e. the home address of the plaintiff/defendant or one of the options mentioned in Article 36 CCCP (which relates to the claims in the contractual article and the lawsuits related to movable property and the lawsuits relating to compensation for damage resulting from a misdemeanor or quasi-misdemeanor, and the lawsuits related to the bill and the bond for the order and alimony lawsuits). As for the location of the building, the legislator singled it out in Article 38 CCCP, which defines the relevant court as the one where the building is located.
On the other hand, the legislator sought to bring the territorially relevant court closer to the dispute by considering the specificity of the litigants to the case in which involves the Tunisian state. Article 32 of the CCCP states that “actions to which the state is a party, except for actions relating to the compensation scheme for industrial accidents and occupational diseases, are brought before the court sitting in Tunis”. This contributed to the overcrowding of the courts in Tunis compared to the internal courts, which hindered the progress of some of them due to the increase in the number of cases filed against the state, especially after the 2011 revolution.
Jurisdiction Problems:
Similar to the territorial jurisdiction issues and problems that impede the judiciary’s ability to function smoothly, the governmental jurisdiction was not immune to these difficulties, specifically regarding the court of First Instance’s jurisdiction. Article 40 of CCCP stipulates that the First Instance court examines all cases unless expressly provided otherwise by law. Under this article, the court of First Instance has overarching jurisdiction, which leads back to question the nature of the case. Using the nature of the lawsuit is a helpful criterion to determine the jurisdiction of the First Instance court. On the other hand, the legislator has specifically chosen the first instance court to decide specific cases, such as nationality claims.
However, the issue became complicated when the court of First Instance was reorganized into several chambers. Some of them were granted attribution jurisdiction, including the commercial chambers, commercial property, and the labor department. Therefore, it is necessary to apply this same division and overarching jurisdiction to the court of First Instance first and consider the jurisdiction second. Despite its importance in the judicial process, the jurisdictional relevance of courts remains the subject of criticism, especially concerning unapproved cases in which the legislator has entrusted the litigants with determining the court according to the submitted requests. However, most of the time the litigants misjudge the value of the lawsuit, and the court claims to lack jurisdiction. Moreover, the overarching jurisdiction of the court of First Instance as a court of public law par excellence has, in turn, contributed to creating a state of imbalance between the number of cases and the number of judges because the district courts are less crowded and quicker in settling disputes than the courts of First Instance. Therefore, it is necessary to think about a set of specific criteria for the governmental jurisdiction due to the complications that cause the judiciary to become less effective.
Duality of the judiciary:
Judicial duality has become part of the Tunisian legal heritage as it is enshrined in both the 1959 constitution and the 2014 constitution. In the report of the founding committee of the judicial, administrative, financial, and constitutional judiciary on the draft of the judiciary power section, it was stated that all parties involved in the discussion agreed to maintain the system of judicial duality. Judicial duality means the existence of an administrative judicial apparatus alongside a civil judicial apparatus. In general, a court is created to decide on jurisdiction disputes that may arise between the two judicial bodies. This task was entrusted to the newly created Jurisdiction Council in 1996. The main problem with judicial duality is determining which judicial system to apply. Both litigants and courts can make mistakes in determining the jurisdiction. That is why judicial duality makes applying the correct to litigation complicated, given that it is always possible for the legal system in charge to declare that it is not the competent authority. This process causes a significant waste of time and money. It is also necessary to review the council’s jurisdiction for jurisdiction conflicts to determine the various conflicts of cases or the jurisdiction.
The expansion of the scope of the jurisdiction council’s responsibility to include all courts should be considered, irrespective of the judicial apparatus to which they belong, unless this conflicts with the interest of the proper functioning of the judiciary. It is also beneficial to allow the litigant to appeal before the council whenever the court does not do so. However, this approach would require reforming the council for conflict’s structure and governance principles.
Limits of reform attempts:
There have been various ideas about how to reform the judicial system. Furthermore, opinions on the condition of the judiciary and the reasons for its deterioration are divided. Some argue the judiciary lacks independence while others call for structural reforms, rather than criticizing judges.
A first reform attempt took place during the discussions within the National Constituent Assembly. They considered the judicial power among its priorities. The Association of Judges called for the urgent adoption of an organic law on the creation of the temporary body representing judges and the laws related to the temporary higher councils of administrative and financial judiciary. This association, which is the largest body representing judges in Tunisia, called on the National Constituent Assembly (NCA) to adopt an appropriate framework for consultation with judges in drafting the constitutional and legislative status of the judiciary and defining its mechanisms following the provisions of the Constitutive Law related to the temporary organization of public authorities.
Following a board of directors meeting, the judges announced their willingness to participate in the founding committees of the National Constituent Assembly so that they can present their proposals regarding the drafting of laws for organizing the judiciary. However, despite reaching this agreement, it remains unconvincing compared to the enormity of the demand for the independence of the judiciary, which is attacked from time to time.
However, the government’s recent decision to place the judicial attaché under the supervision of the Ministry of Justice has angered the Tunisian Association of Judges and the Union of Judges. They condemned this decision as a violation of the constitution, the principles of judicial independence, and the rule of law, and that the issuance of such decrees does not aim to regulate judicial work. Additionally, this meant that the Governmental Order No. 208 of May 2, 2020, is an unacceptable attempt to steal powers as the government seeks to control the judiciary and put it under the executive’s control[6]. Also, reform attempts have taken several other forms, such as organizing seminars and training sessions, as the Administrative Court discussed the draft of the Administrative Court’s strategic plan for the years 2020-2024, but its outputs remained under consultation and no decision was taken.
The independence of the judiciary does not need to be guaranteed by a precise legal arsenal, but the political will to remove it from the political disputes is required. The attempts to reform the judicial system will remain ineffective due to the different visions that should form the basis for comprehensive and effective reform. Also, despite the attempts to reform and ensure the independence of the judiciary or shape public opinion to support of the rule of law, the evaluation of events remains subjective, since the judiciary is not limited exclusively to judges, but rather is an integrated and rooted system that includes many judicial and legal professions that affect the judiciary as a whole. The system is subdivided to include, in addition to judges, lawyers, bailiffs, administrative agents, experts, clerks, clerks, general tax advisors, consultants, and others.
Solutions for the judicial system’s problems:
Reforming the judicial system inevitably requires collecting opinions and decisions of specialists who understand the persistent problems and difficulties that have affected the effective functioning of the judicial system.
Consequently, the summary of the proposed solutions expresses the positions of judges and other interfering parties in the judicial system. While the new constitution represents a decisive turning point in the history of the Tunisian judiciary through enshrining the principle of the independence of the judiciary by structural and functional reform of the Supreme Judicial Council, whose establishment is one of the most important revolutionary entitlements, reforming the judiciary and ensuring its independence are two basic conditions to ensure democratic practice in a state that respects the rule of law. Therefore, the comprehensive reform process should be based on the following three components.
Define the administrative judiciary’s legal basis:
It is necessary to reorganize the administrative judiciary by reviewing the law relating to the Administrative Court and the statute of administrative judges because the new Tunisian constitution restructured the judiciary. Article 116 of the Constitution, related to the administrative judiciary stipulates that the latter consists of a higher Administrative Court, Administrative Courts of Appeal, and Administrative Courts of First Instance, which presupposes the adoption of a judicial map of territorial jurisdiction that accounts for the urban expansion, population density, and administrative division, with the need to adopt clear criteria to determine territorial jurisdiction[7].
Continuous training and development for judges:
The career path of a judge begins from their appointment until they reach the legal retirement age. The degree of training each judge receives varies according to the rank and structure to which they belong. This requires setting objective standards that must be transparent and equal among all judges, whether those in charge of the judiciary or those accredited to Tunisian consulates. The importance of competence and the ability to practice various judicial specialties should be taken into consideration, therefore the Higher Institute of Judges should find ways to ensure the continuous training and qualification of judges and the development of their skill sets.
This requires setting the criteria that a candidate must meet to become a judge. It also requires ensuring high quality training for him/her on the scientific and practical levels, which also requires a continuous review of the recruitment system. This includes providing judges with the opportunities to develop his/her knowledge of legal culture through participation in seminars and specialized courses on new legislation and the difficulties resulting from their application. Additionally, it requires the provision of capacities that are based primarily on judges and their assistants, as the judge must be highly qualified and prepared to engage continuous professional development, not just content with their university level training, to keep abreast of global legislative developments. From an economic perspective, for example, the judiciary must pay attention to factors that concern financial issues in addition to the laws of global trade, economics, accounting, and social affairs.
Strengthening the human and material aspects of the judicial system:
It is necessary to provide judges with adequate wages to prevent the temptation of corruption. Also, judges’ working conditions should be improved by providing the necessary offices, equipment, and tools. Furthermore, the statute of judges should be reviewed and a new organic law that organizes the profession should be enacted. This is necessary because the current law, which was passed in the 1960s, does not protect the judiciary from socio-political developments and enable it to function effectively.
Recommendations:
- Open a comprehensive and serious dialogue between the intervening parties (i.e., the Supreme Judicial Council, representative bodies of judicial assistants, and the Constitutional Court when established, or the temporary commission for monitoring the constitutionality of draft laws) to develop a clear road map for judicial system reform.
- Work to establish and consolidate the principle of an independent judiciary by reviewing the statute of judges
- The Tunisian parliament should pass basic laws of professions interfering in the judicial system, such as notaries and bailiffs.
- The Supreme Judicial Council shall supervise the completion of the establishment of the administrative judicial apparatus and put an end to the dual jurisdiction system.
[1] The website of the Tunisian Ministry of Justice, a historical overview, available at https://bit.ly/2L8RxM5 (accessed on December 7, 2020, 09:30) [2] The History of the Judiciary in Tunisia, The Tunisian Open Encyclopedia, available at https://bit.ly/37KxgUK (accessed on December 7, 2020, 09:31) [3] Security Sector Media Monitor, 27 September 2018, available at https://bit.ly/2Ikionq (accessed on December 7, 2020, 09:47) [4] Democracy Reporting International, Report on Administrative Jurisdiction on the Test of Right to Litigation and Recourse to Judiciary, 2018, available at https://democracy-reporting.org/wp-content/uploads/2018/03/DRI-TN-Rapport-La-comp%C3%A9tence-de-la-juridiction-administrative-en-Tunisie-%C3%A0-l%C3%A9preuve-du-droit-dacc%C3%A9s-%C3%A0-la-justice_AR.pdf (accessed on December 7, 2020, 09:48) [5] Najwa Al-Sayeh, “The Impact of the Judicial System on the Economic Issue: Reforms Are Necessary to eliminate a drive for development,” published in Al-Khabeer Newspaper, January 14, 2016, available at http://lexpertjournal.net/?p=3969 (accessed on 7 Dec 2020, 09:54) [6] Basma Barakat, “Controversy between the judiciary and the Tunisian government: concerns about the independence of institutions,” published in Al-Araby Al-Jadeed, May 8, 2020, available at https://bit.ly/37Fmr6C (accessed on December 7, 2020, 09:59) [7] https://legal-agenda.com
