The establishment of a Constitutional Court in Tunisia has been hindered since 2014. It is a judiciary institution that was supposed to have been established no more than one year after the 2014 election, yet six years on it has still not been formed.
The court consists of 12 members, four of whom are appointed by parliament, four are formed by the Supreme Judiciary Council, while the president appoints the remaining four.
Several attempts were made by parliament to appoint the first four members. Eight plenaries (six during the last term and two during the current term) have all failed due to the lack of agreement over the candidates in terms of their integrity and neutrality. Parliament failed to meet the necessary two-thirds majority when voting for possible members of the court, except in the case of Roudha Al-Ouerseghni in March 2018, who had been nominated by the Nidaa Tunis bloc.
It appears that ministers from Nidaa Tunis, the Tunisia Project (Machrou Tounes) and the Democratic Bloc did not adhere to the agreement the parties had come to regarding four candidates. Knowing that the vote was held in secret, they turned their backs on the deal and only voted for Roudha Al-Ouerseghni, impeding the establishment of the court.
Following each failed attempt, parliament opened the door for nominations and for new attempts to reach an agreement.
Repeated divisions within the parliamentary blocs, especially within Nidaa Tunis, complicated the situation. This made it difficult to reach an agreement which had the backing of the necessary number of ministers. As a result of the fragmentation, a number of parties proposed amendments which would facilitate and expedite the establishment of the court.
These amendments permit the Supreme Judiciary Council and the Presidency of the Republic to appoint eight members without waiting for parliament to finalise the election of four members so as to complement the composition of the court. They also reduce the majority required for a parliamentary vote on the matter from two thirds to three fifths, meaning 131 ministers would need to vote in favour of a Constitutional Court member instead of 145.
The amendments were adopted in a plenary held on 25 March 2021 when 129 deputies voted in favour. However, the president refused to ratify the amendment into law. Saied justified his action citing the expiry of the period allocated for electing the court's members.
Experts, however, agree that though the timeframe had come to an end, it does not mean parliament had lost the right to establish the court, citing as evidence the Supreme Judiciary Council that was appointed in a year and a half although the time allocated for its formation was six months. In order for the amended law to become enforceable, it needed to be ratified by the president. As this did not happen, the previous conditions continued to apply.
On 4 May 2021, parliament voted once more in favour of amending the Constitutional Court's Law after it was rejected by the president on 3 April. The amended law was again adopted with a bolstered majority in which 141 deputies voted in favour.
Following the president's refusal for the second time to ratify the law, parliament took the step of repeating the attempt of voting in order to choose four members of the court on the basis of the original law.
However, ministers loyal to President Kais Saied continued to obstruct efforts to move forward and establish the Constitutional Court. This was exacerbated by the coronavirus pandemic.
Nominations were once again open with 8 July being set as the date of a general session to discuss nominations, however this was postponed due to the spread of covid in the country.
On 25 July, President Kais Saied froze parliament, withdrew immunity of ministers and took over legislative and judicial powers.
This article first appeared in Arabic in Arabi21 on 2 August
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