Title Five. The Judicial Authority
Article 102
The judiciary is independent. It ensures the administration of justice, the supremacy of the Constitution, the sovereignty of the law, and the protection of rights and freedoms.
Judges are independent with the law being the sole authority over them in discharging their functions.
Article 103
Judges must be competent, and should be characterized by neutrality and integrity. They shall be held accountable for any shortcomings in their performance.
Article 104
Judges enjoy criminal immunity and may not be prosecuted or arrested unless their immunity is lifted. In the event of being apprehended committing a crime, a judge may be arrested and the Judicial Council he/she is affiliated with shall be notified, and shall decide on lifting the immunity.
Article 105
The legal profession is a free and independent profession that contributes to the establishment of justice and the defence of rights and liberties. Lawyers enjoy the legal guarantees that protect them and enable them to fulfill their functions.
Part One. The Judiciary: The Justice System, Administrative and Financial Judiciary
Article 106
Judges shall be nominated by presidential decree based on a concurrent proposal by the Supreme Judicial Council.
Senior judges shall be nominated by presidential decree and in consultation with the Head of Government, based on an exclusive recommendation by the Supreme Judicial Council. Senior judicial posts shall be regulated by law.
Article 107
Judges may not be transferred without their consent. They cannot be dismissed or suspended from their functions, nor be subject to disciplinary sanction, except in the cases and the guarantees regulated by the law and in accordance with a reasoned decision by the Supreme Judicial Council.
Article 108
Every individual is entitled to a fair trial within a reasonable period. Litigants are equal before the law.
The right to litigation and the right to defence are guaranteed. The law facilitates access to justice and provides legal assistance to those without financial means. The law guarantees the right to a second hearing.
Court sessions shall be public unless the law provides for a closed hearing. Judgment must be pronounced in a public session.
Article 109
All kinds of interference in the functioning of the judicial system are prohibited.
Article 110
The different categories of courts are established by law. No special courts may be established, nor any special procedures that may prejudice the principles of fair trial.
Military courts are competent to deal with military crimes. The law shall regulate the mandate, composition, organization, and procedures of military courts, and the statute of military judges.
Article 111
Judgments are passed in the name of the people and executed in the name of the President of the Republic. Failing to execute or impeding the execution of a sentence without legal grounds is prohibited.
Section One. The Supreme Judicial Council
Article 112
The Supreme Judicial Council is composed of four bodies, which are the Judiciary Council, the Administrative Judicial Council, the Financial Judicial Council, and the General Assembly of the three judicial councils.
Two-thirds of each of these structures is composed of judges, the majority of whom are elected, in addition to judges appointed on merit, while the remaining third shall be composed of independent, specialized persons who are not judges. The majority of the members of these bodies shall be elected. Elected members exercise their functions for a single six-year term.
The Supreme Judicial Council shall elect its president from amongst its most senior judges.
The law establishes the mandate of each of the four bodies, and their composition, organization, and procedures.
Article 113
The Supreme Judicial Council enjoys administrative and financial independence and shall be self-managing. It prepares its own draft budget which it discusses before the competent committee of the Assembly of the Representatives of the People.
Article 114
The Supreme Judicial Council ensures the sound functioning of the justice system and respect for its independence. The General Assembly of the three judicial councils proposes reforms and gives its opinions on draft laws related to the judicial system. Such laws must be reviewed by the General Assembly. Each of the three councils is responsible for making decisions on the professional careers of judges and on disciplinary measures taken against them.
The Supreme Judicial Council shall prepare an annual report and submit it, in the month of July at the latest, to the President of the Republic, the Speaker of the Assembly of the Representatives of the People, and the Head of Government. The report shall be published.
The Assembly of the Representatives of the People shall discuss the annual report at the beginning of the judicial year in a plenary session, in dialogue with the Supreme Judicial Council.
Section Two. The Judicial System
Article 115
The judiciary is composed of the Court of Cassation, appellate courts and courts of first instance.
The public prosecution service is part of the judicial justice system, and benefits from the same constitutional protections. The judges of the public prosecution service exercise their functions as determined by the law and within the framework of the penal policy of the State in conformity with the procedures established by the law.
The Court of Cassation prepares an annual report which it submits to the President of the Republic, the Speaker of the Assembly of the Representatives of the People, the Head of Government and the President of the Supreme Judicial Council. The report is published.
The law establishes the organization of the judicial system, its mandates, its procedures, as well as the statute of its judges.
Section Three. Administrative Judiciary
Article 116
The administrative judiciary is composed of the Supreme Administrative Court, administrative courts of appeal, and administrative courts of first instance.
The administrative judiciary has jurisdiction over any abuse of power by the administration as well as all administrative disputes. The administrative judiciary shall exercise consultative functions, in accordance with the law.
The Supreme Administrative Court shall prepare a general annual report which it submits to the President of the Republic, the Speaker of the Assembly of the Representatives of the People, the Head of Government, and the President of the Supreme Judicial Council. This report is published.
The law regulates the organization of the administrative judiciary, its mandate, procedures, as well as the statute of its judges.
Section Four. Financial Judiciary
Article 117
The Financial Judiciary is composed of the Court of Audit with its different bodies.
The Court of Audit oversees the sound management of public funds in accordance with the principles of legality, efficiency and transparency. The Financial Judiciary rules on the accounts of public auditors. It assesses accounting methods and sanctions errors and failings that it discovers. The Financial Judiciary assists the legislative and executive powers in overseeing the execution of the Finance Law and the closure of the budget.
The Court of Audit prepares a general annual report and submits it to the President of the Republic, the Speaker of the Assembly of the Representatives of the People, the Head of Government, and the President of the Supreme Judicial Council. The report is published. The Court of Audit shall, when necessary, prepare special reports that it may decide to publish.
The organization, mandate and procedures of the Court of Audit, as well as the statute of its judges, are regulated by law.
Part Two. The Constitutional Court
Article 118
The Constitutional Court is an independent judicial body, composed of 12 competent members, three-quarters of whom are legal experts with at least 20 years of experience.
The President of the Republic, the Assembly of the Representatives of the People, and the Supreme Judicial Council shall each appoint four members, three quarters of whom must be legal specialists. The nomination is for a single nine-year term.
One-third of the members of the Constitutional Court shall be renewed every three years. Any vacancies in the Court shall be filled according to the same procedure followed upon the establishment of the court, taking into account the appointing party and the relevant areas of specialization.
Members of the Court elect a President and a Vice President of the Court from amongst its members who are specialists in law.
Article 119
Combining membership in the Constitutional Court with any other function or task is prohibited.
Article 120
The Constitutional Court is the sole body competent to oversee the constitutionality of the following:
- Draft laws, upon the request of the President of the Republic, the Head of Government, or thirty members of the Assembly of the Representatives of the People. The request shall be filed within seven days from the Assembly’s ratification of the draft law or ratification of a draft law in a modified version, after it has been returned from the President of the Republic.
Constitutional draft laws submitted to it by the President of the Assembly of the Representatives of the People as specified in Article 144 or to determine whether the procedures of amending the Constitution have been respected. Treaties presented to it by the President of the Republic before the draft law approving them is signed. Laws referred to it by courts as a result of a request filed by a court, in the case of the invocation of a claim of unconstitutionality by one of the parties in litigation, in accordance with the procedures established by law. The rules of procedure of the Assembly of the Representatives of the People, submitted to it by the Speaker of the Assembly.
The Constitutional Court is also responsible for other tasks that are conferred upon it by the Constitution.
Article 121
Decisions of the Constitutional Court are passed within 45 days from the date of challenging constitutionality. Decisions are taken by the absolute majority of the members of the Constitutional Court. The decision of the Court shall state whether the challenged rulings are constitutional or not. Decisions passed by the Constitutional Court shall be reasoned, binding to all authorities and published in the Official Gazette of the Tunisian Republic.
If the deadline specified in the first paragraph expires without the Court having passed its decision, it must immediately refer the draft law to the President of the Republic.
Article 122
An unconstitutional draft law shall be referred to the President of the Republic who refers it to the Assembly of the Representatives of the People for a second reading in accordance with the Constitutional Court’s decision. The President of the Republic shall, before signing the draft law, resubmit it to the Constitutional Court to reconsider and rule on its constitutionality.
In the case of the Assembly of the Representatives of the People adopting a draft law, amended following its return, and where the court had affirmed its constitutionality or referred it to the President after expiry of the deadline for rendering its decision, the President of the Republic shall then refer it to the Constitutional Court before signing it.
Article 123
In the event the Constitutional Court is asked to rule on a claim of unconstitutionality, the Court shall limit itself to examining the challenges made, on which it rules within a three-month period renewable only once and for the same period, and on the basis of a reasoned decision.
If the Constitutional Court decides that a law is unconstitutional, the law’s implementation is suspended within the limits specified by the Court.
Article 124
The law shall regulate the organization of the Constitutional Court, and the procedures it should follow, as well as the guarantees enjoyed by its members.
