UNDP United Nations Development Programme ������ ����� ������� ��������
Programme on Governance in the Arab Region ������ ����� ����� �� ����� ������� POGAR
Publications: Judiciary
- Introduction
- Sources On Arab Judiciaries
- Algeria
- Egypt
- Jordan
- Kuwait
- Lebanon
- Morocco
- Palestine/PNA
- Saudi Arabia
- Sudan
- Syria
- Tunisia
- United Arab Emirates
- Yemen
- Summary Tables
- Constitutional Provisions On The Judiciary
- Structure Of Court System
- Personal Status Issues
- Prosecution System
- Appointing/ Assigning/ Evaluation Of Judges
- Administration And Relationship With The Ministry Of Justice
- Specialized Courts And Their Jurisdictions
- Judicial Education

Arab Judicial Structures
A Study Presented To The United Nations Development Program
by Nathan J. Brown

The Tunisian judiciary is fairly unified by regional standards. The relationship between the Ministry of Justice and the judiciary is also unusually close.

  1. Constitutional provisions for the judiciary

    Tunisia�s constitution provides for an independent judiciary, a High Court, and a Council of State. However, most details are determined not in the constitution but instead in regular legislation.

    Article 64 Judgments are rendered in the name of the people and in the name of the president of the republic.
    Article 65 The judiciary is independent; the magistrates in the exercise of their functions are not subjected to any authority other than the law.
    Article 66 Magistrates are nominated by decree of the president of the republic upon the recommendation of the Supreme Judicial Council. The modalities of their recruitment are determined by law.
    Article 67 The Supreme Judicial Council, whose composition and attributions are determined by law, watches over the application of the guarantees accorded to magistrates in the matter of nomination, advancement, transfer, and discipline.
    Article 68 The High Court meets in a case of high treason committed by a member of the Government. The competence and the composition of the High Court as well as the procedure applicable before it are specified by law.
    Article 69 (1) The Council of State is composed of two organs: 1) The Administrative Tribunal; 2) The Court of Accounts. (2) The composition and the competence of the Council of State as well as the procedure applicable before it are determined by law.

  2. Structure of court system

    The regular courts in Tunisia have three levels. The first level�cantonal (mahakim al-nawahi) and first instance (al-mahakim al-ibtida�iyya) hear cases in accordance with their gravity. The third level is the appeals court. At the apex stands the Court of Cassation (mahkamat al-ta�qib).

    The various levels of courts have sections for civil, commercial, criminal, social and personal status cases.

    Specialized courts (for matters such as real estate) exist within the regular court system.

  3. Personal status issues

    Tunisia does not have a separate shari�a or personal-status judiciary. Specialized sections of the civil courts rule in personal status cases in accordance with the country�s personal status law. While the personal status law is based primarily on Islamic jurisprudence, it has introduced some reforms. It governs personal status issues for all Tunisians, regardless of religion (the vast majority of Tunisians are Muslims).

  4. Prosecution system

    The prosecution system in Tunisia is largely judicial (in that prosecutors are comparable to judges), but prosecutors fall within the Ministry of Justice. The judicial police play an active role. They are responsible to the Ministry of Interior, but the public prosecution exercises some oversight.

  5. Appointing/assigning/evaluation of judges

    The Supreme Judicial Council oversees judicial matters. It is headed by the president of the republic and includes the minister of justice and one other official from the ministry. Other members come from the judiciary or the prosecutors. Judges do elect some members.

    The Council has a separate disciplinary body that is headed by the president of the Court of Cassation and is largely judicial in composition.

  6. Administration and Relationship with Ministry of Justice

    The budget and administration of the courts fall largely within the Ministry of Justice.

    Because the Supreme Judicial Council has very significant participation by executive branch officials, the judiciary is unusually closely connected to the Ministry of Justice.

  7. Specialized courts

    Military courts, with participation of a civilian judge, may try security cases. In addition, the State Security Court was established in 1968; it consists of judges appointed by the president. From among existing judges. It has not been active lately.

    A separate administrative court system, the Council of State, is required by the constitution. It has recently set up a network of branches throughout the country, giving it two levels. A council was established in 1995 to settle conflicts between the administrative and regular judiciaries.

    The High Court, which deals with cases such as high treason by high officials, consists of a chief judge, four other judges and three deputies. The chief judge is appointed by presidential order; the others are selected by the parliament from among senior judges. The court is called by the president of the republic after consultation with the parliament.

    Tunisia introduced a Constitutional Council system in 1987 by presidential decree. Its members are judges appointed by the president. In 1990 a law was passed to govern the Council. It rules on matters referred to it by the president. In 1987 a Tunisian court struck down a law and asserted a right to judicial review by the regular court system, but its judgment was reversed the following year by the Court of Cassation which ruled that the regular courts had no such right.

  8. Judicial education

    The Tunisian Ministry of Justice oversees the High Magistrates Institute. A research body, the Center for Legal and Judicial Studies, was also established in the Ministry in 1992.

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