World Video | Defence | Foreign Affairs | Natural Events | Trade | NZ in World News | NZ National News Video | NZ Regional News | Search

 


Tunisia: Improve Guarantees for Judicial Independence

Ensure Judiciary Has Powers To Protect Human Rights
January 13, 2014

(Tunis) – As Tunisia’s National Constituent Assembly (NCA) is discussing the chapter on the judicial powers in a new constitution, Al Bawsala, Amnesty International, Human Rights Watch, and The Carter Center urge members to strengthen guarantees for judicial independence.

The judiciary under former President Zine el Abidine Ben Ali was subservient to the executive branch and lacked independence. It is essential that Tunisia’s new constitution fully guarantee the independence of the judiciary and the impartiality of justice, the groups said.

“Tunisians deserve a constitution that has crystal clear guarantees for an independent judiciary,” said Marion Volkmann, director at The Carter Center Office in Tunis. “Tunisia’s new constitution should signal a real departure from a past marred by political interference by the executive and ensure the judiciary has the necessary power and independence to protect human rights.”

Al Bawsala, Amnesty International, Human Rights Watch, and The Carter Center have followed the constitution-making process since it began in February 2012. Their January 3, 2014 joint statement made recommendations for strengthening human rights and freedoms in the constitution.

The draft chapter on judicial power contains several important articles that incorporate general principles on the independence of the judiciary. For example, article 100 stipulates that: “the judiciary is an independent authority that ensures the prevalence of justice, the supremacy of the constitution, the sovereignty of the law, and the protection of rights and freedoms.” The independence of judges is confirmed in so far as they are accountable, in the performance of their duties, solely to the constitution and the law. Article 106 prohibits any outside interference in the judiciary.

The four organizations welcome these provisions, which accord with international standards. The UN Basic Principles on the Independence of the Judiciary, for example, require that principles relevant to the independence of the judiciary should be set out in the country’s constitution.

However, the draft chapter contains weak guarantees for the tenure of judges, contrary to international standards, for example the UN Basic Principles on the Independence of the Judiciary and the Principles and Guidelines on the Right to Fair Trial in Africa. While prohibiting removal of judges or their transfer without their consent, the draft envisages exceptions “in accordance with guarantees provided for by the law,” a formulation that could be misused by the executive and legislative powers and risks undermining the essence of this protection.

Al Bawsala, Amnesty International, Human Rights Watch, and The Carter Center therefore recommend that the NCA state clearly in article 104 that any disciplinary measure against a judge should be possible only for serious misconduct, as determined by the High Judicial Council and by respecting guarantees of due process.

The draft constitution provides for the creation of a High Judicial Council with a mandate of “ensuring the prevalence of justice and respect for the independence of the judiciary, proposing reforms and making recommendations with respect to draft laws related to the judiciary, and deciding on the professional conduct of and disciplinary measures for judges” in article 111. The draft proposes that half of the members of this council will be judges, the remainder non-judges.

The Consensus Commission, tasked with reaching broad agreement on the most contentious constitutional issues, proposed an amendmentthat would raise the number of judges on this council to two-thirds, “the majority of them elected by their peers and the rest appointed,” with the remaining third comprising individuals of demonstrable independence and expertise.

However, this formulation falls short of ensuring full independence of the judiciary on two levels. First, the judges elected by their peers could be a minority on the council, which could leave it under the control of members appointed either by the executive or by parliament. Several international instruments recommend that such bodies have a substantial proportion or even a majority of members elected by the judiciary. For example, the 1998 European Charter on the Statute for Judges “envisages the intervention of an authority independent of the executive and legislative powers within which at least one-half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary.”

Second, the proposed amendment does not indicate how the non-judge members should be selected, whether directly by the government, an election by parliament, or any other procedure. This leaves excessive discretion to government authorities regarding the procedures for their selection and does not offer sufficient constitutional guarantees for their independence from the two other branches of the state.

Al Bawsala, Amnesty International, Human Rights Watch, and The Carter Center recommend that the NCA state in article 109 that at least half of the High Judicial Council be composed of judges elected by their peers. They further recommend that the constitution should specify appointment procedures to ensure that the selected non-judges enjoy broad confidence and legitimacy and that any appointment by parliament should require no less than a two-thirds majority.

The constitution has also extended the guarantees of independence to the public prosecution, which “shall form part of the judiciary and shall enjoy the same safeguards.” Article 112 requires public prosecutors to “discharge their duties in accordance with state prosecution policy in compliance with procedures laid down in law.” The four organizations recommend that the NCA retain that formulation and reject an amendment changing it to “governmental prosecution policy,” and specify that this policy should be consistent with rights and freedoms protected in the constitution and international human rights standards.

For more background, please see below.

Background
The NCA began voting on the constitution in plenary session on January 3, 2013. To date, it has completed voting on the preamble, general principles, rights, and freedoms, and the legislative and executive powers chapters. The article-by-article vote and first complete reading of the draft constitution will be the final stage of the constitution-making process. The rules the assembly set for passage require a separate vote on each article, with a simple majority required for passage. The assembly must then approve the entire draft in a separate vote. If the draft fails to pass by a two-thirds majority, the draft will be submitted again for voting with the same two-thirds majority required. If the second attempt fails, the draft goes next to a national referendum.

ENDS

© Scoop Media

 
 
 
 
 
World Headlines

 

Connie Lawn: Middle East Turmoil

There is always turmoil in the Mid East but at this time three major developments have broken at the same time. In Saudi Arabia 91 year old King Abdullah has died... In Yemen, the President and his top advisors have resigned. More>>

ALSO:

Russia Supports Indonesia`s Possible Move To Buy Sukhoi 35

Jakarta (ANTARA News) - The Russian government supports Indonesias wish to buy the multipurpose fighter jet Sukhoi 35 to enhance the countrys air force. More>>

Economy: International Monetary Fund Downgrade Global Growth Forecast

20 January 2015 – Despite a sharp decline in oil prices, the International Monetary Fund (IMF) in its latest economic outlook today lowered growth expectations for this year and the next for most countries due to slowdown in investment, and urged governments ... More>>

ALSO:

UN Rights Expert Cancels Visit To Palestinian Territory

Israel’s lack of cooperation leads to cancelled visit by UN rights expert to the occupied Palestinian territory More>>

Pentagon To Deploy 400 Troops To Train Syrian Rebels

Rebel fighters take positions behind sand barricades at al-Breij frontline, after what they said was an advance by them in al-Manasher and al-Majbal areas, where forces loyal to Syria's President Bashar al-Assad were stationed, in Aleppo January 5, 2015. ... More>>

ALSO:

U.S. Eases Sanctions On Export Of Tech To Cuba

Washington — Today, the Department of Treasury and Department of Commerce officially released the anticipated changes to the Cuban Assets Control Regulations (CACR) and Export Administration Regulations (EAR) , reforms announced last year by President ... More>>

Increased Gold Demand Following Shock SNB Move

Gold surged in dollars, pounds and especially euros yesterday after the Swiss Natonal Bank (SNB) caused turmoil in markets. Spot gold surged $30.50 or 2.48% to $1,258.50 per ounce and gold in euro terms rose by 4 per cent from EUR 1,044 to over EUR 1,085 ... More>>

Get More From Scoop

 
 
 
 
 
World
Search Scoop  
 
 
Powered by Vodafone
NZ independent news