Features - A Guide to the Tunisian Legal System

Dahmène Touchent is the manager of the Algerian web site LEXALGERIA. He received his Diplôme d'études supérieures from the Financial national institute, Algiers, a Master of Law from The Paris XIII University, and legal higher studies in export law from Paris V University. He teaches law and economics courses to first-years and upper-class students at the Claude Bernard Institute, and commercial law at University of Paris13. He was an independent journalist for Journal of Internet Ethics and wrote articles about Northern African law (Algeria and Morocco) and articles and commentaries on French labour law.


Table of Contents

Introduction
A. The Executive Power: The Government
B. The Legislative Power: Parliament
C. The Judicial Power
D. Other Authorities
E. Administrative Set Up
F. Other (Semi) Government Institutions
G. Law Faculties
H. Legislation (Laws, Jurisprudence and Treaties)
I.  Literature (Textbooks on Civil Law, Administrative Constitutional Law, Criminal Law)
J. Legal Sites

Introduction

Tunisia is a Republic in Northern Africa, 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. 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.

French colonial rule came to an end in 1956. Tunisia was led for three decades by Habib Bourguiba, who insisted on advancing secular ideas, with emancipation for women, the abolition of polygamy and compulsory free education. In 1987 he was dismissed on grounds of senility and Zine El Abidine Ben Ali came into office.

A.     The Executive Power

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

The President of the Republic

The President of the Republic is the Head of the 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.

Designation

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 of the Republic must be:

  • A Tunisian who does not carry another nationality,
  • who is of Moslem religion,
  • whose father, mother, and paternal and maternal grandfather have been of Tunisian nationality without interruption,

The candidate must, furthermore:

  • be at least forty years and at most seventy years of age on the day of submitting his candidacy
  • must 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 the following four members:

  • the President of the National Parliament
  • the President of Constitutional Council
  • the First President of the Court of Cassation
  • the First President of the Administrative Tribunal

    The commission rules on the validity of the candidacies, the challenges received, and proclaims the result of the ballot.

    Functions

    The President of the Republic is the Supreme Commander of the Armed Forces. He accredits diplomatic representatives to foreign powers.

    In case of imminent peril menacing the institutions of the Republic, the security and independence of the country and obstructing the regular functioning of the public powers, the President of the Republic may take the exceptional measures necessitated by the circumstances, after consultation with the Prime Minister and the President of the National Parliament.

    During this period, the President of the Republic may not dissolve the National Parliament and no motion of censure may be presented against the Government.

    These measures case to have effect as soon as the circumstances that produced them come to an end. The President of the Republic addresses a message to the National Parliament on this subject.

    The President of the Republic 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 of the Republic has the following authority:

    • He ratifies the treaties.
    • He declares war and concludes peace with the approval of the National Parliament.
    • He exercises the right of pardon.
    • He directs the general policy of the Nation, defines its fundamental options, and informs the National Parliament accordingly.
    • He communicates with the National 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.
    • He nominates the highest civil and military officers on the recommendation of the Government.

    The term of its functions

    In case of temporary disability, the President of the Republic may, by decree, delegate his powers to the Prime Minister with the exclusion of the power of dissolution. During the temporary disability, the Government, even if it is the object of a motion of censure, remains in place until the end of this disability. The President of the Republic informs the President of the National Parliament of the provisional delegation of his powers.

    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 invested temporarily 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, 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 Government

    The Government 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 of the Republic for its conduct.

    The Prime Minister

    The President of the Republic nominates the Prime Minister, and on his suggestion, the other members of the Government. The President of the Republic 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 of the Republic in presiding over the Council of Ministers or any other Council.

    The President of the Republic 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 National Parliament as well as to its committees. Any deputy may address written or oral questions to the Government.

    The National 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 National 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 of the Republic accepts the resignation of the government presented by the Prime Minister.

    Ministers

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    B.     The Legislative Power: Parliament

    Designation

    The people exercise the legislative power through a representative organ called National Parliament.  The members of the National Parliament are elected by universal, free, direct, and secret suffrage, according to the modalities and conditions determined by the Electoral Law.

    An elector is every citizen possessing Tunisian nationality for at least five years and having attained at least twenty years of age.

    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 National Parliament is elected for a period of five years in the course of the last thirty days of its mandate.

    In case of impossibility of proceeding with the elections during the designated time, because of war or imminent peril, the mandate of the National Parliament is extended by a law until the time it is possible to proceed with the elections.

    The National Parliament 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 National Parliament may meet in extraordinary sessions on the request of the President or the majority of deputies.

    No deputy can be arrested or prosecuted for the duration of his mandate for a crime or misdemeanor as long as the National Parliament has not lifted the immunity which covers him. However, in the event of flagrant offence, arrest procedure is permitted, in such a case, the National Parliament is to be informed without delay. The detention of a deputy is suspended if the National Parliament so requests.

    Functions

    The National Parliament exercises the legislative power. The presentation of legislation belongs equally to the President of the Republic and to the members of the National Parliament, priority being given to bills presented by the President of the Republic.

    The National Parliament may authorize the President of the Republic to issue decree-laws within a fixed time limit and for a specific purpose which must be submitted for ratification to the National Parliament upon expiration of that time limit.

    Organic and ordinary laws are passed by the National Parliament by absolute majority. A draft organic law may not be submitted for deliberation by the National Parliament until after the expiration of a period of fifteen days from its filing.

    The National 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.

    Legislative Competencies

    Matters relating to the following are regulated in the form of laws:

    • the general modalities of the application of the Constitution, other than those relative to organic laws;
    • the creation of offices, public establishments, societies, or national enterprises;
    • citizenship, the status of persons, and obligations
    • the procedure before different orders of jurisdictions
    • the determination of crimes and offences and the penalties which apply to them;
    • amnesty;
    • the basis and rate of taxes for the benefit of the State, except the delegation accorded to the President by the laws of finances and fiscal laws;
    • the regime of the issuance of money;
    • loans and financial obligations of the State;
    • the fundamental guarantees accorded to civilian and military functionaries.

    During the vacation of the National Parliament, the President of the Republic may, with the consent of the interested permanent committee, issue decree-laws which must be submitted to the ratification by the National Parliament during the next ordinary session.

    Dissolution of Parliament

    If the National 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.

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    C.    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 the 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 knows 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 commercial rooms to rule:

    • 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 Appeal Courts

    The Appeal 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 are only qualified to know:

    • 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, Sfax.

    The Supreme Court

    The Supreme Court, or Court of Cassation, which 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 hear 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.

    The High Court

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

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    D.  Other Authorities

    The Constitutional Council

    The constitutional Council examines the bills which are subjected to him by the President of the Republic as for their conformity or their compatibility with the Constitution.

    The Council is obligatory consulted for the following
    subjects:

    • Organic laws
    • relative laws
    • the general methods of application of the Constitution
    • nationality
    • the state of the people 
    • 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
    • the public health
    • labour law
    • social security

    In the same way, the President of Republic obligatorily submits to the constitutional Council the treaties and all questions concerning the organization and the work of the institutions

    The projects of the President of the Republic are subjected to the constitutional Council before their transmission with the House of Commons or referendum

    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.

    E.     Administrative Organization

    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.

    F.     Other Semi-Government Institutions

    G.     Law Faculties

    • Free University of Tunis http://www.ult.ens.tn/
    • University of letters, arts and humanities (Tunis I): http://www.refer.org/tunis_ct/edu/rg/tunis1.htm
    • 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

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    H.     Legislation (Laws, Jurisprudence and Treaties)

    I.       Legal Literature (Textbooks on Civil Law, Administrative Constitutional Law, Criminal Law) 

    • The National Library of Francophony
    • Corporate debt - Ammar, Abdelmajid, "the personal liability for the leaders of corporations in the event of collective procedure," Chabloz Printing Works, Tolochenaz
    • Comparative law - Ben Aissa, Mohamed Salah the principle specialty and economic publicly-owned establishments in Tunisian and French law, "studies Center of Faculte of right and political and economic sciences of Tunis"
    • Adminstrative 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
    • Criminal law  - 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

     J.    Legal Sites

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