The 14th of January represents a milestone in the Tunisian history. Last Tuesday was the 14th of January and it has been three years since the Tunisians said no to dictatorship and yes to democracy. But during this national holiday, Tunisians were not yet satisfied. After three years, democracy is still weakand people are torn between hope and growing despair which is gaining ground.

The celebration of the revolution was bleak: the red and white flags colouring the capital, the red clock, located in the heart of the city, although magnificent to be clearly visible, could not hide the tension in the main streets of Tunis.

Tunisians did not come out to celebrate the revolution, but still strongly affirm their claimings. Between the protests led by parties and the spontaneous ones, mainly slogans full of criticism could be seen: most of them was about the death of political leaders, such as Chokri Belaid and Mohamed Brahmi, and the total ignorance, still, of their murderers. Among the most heated themes: the terrorism that is gaining ground, the of the purchasing power of the Tunisians getting worse due to the excessive increase of prices, the political and social instability that the Tunisian people is the only victim of and the departure of the ruling troika that has exceeded its legitimacy for two years but continues to ignore the needs of Tunisians.

Three years after the revolution, the Constituent Assembly has finally approved the new Constitution, article by article, but on the eve of 14th of January, a great controversy struck in full force the intellectual world as well as every active and attentive citizen to the events of his country. The controversy was none other than the adoption of Article 103 of the Constitution of the Republic of Tunisia, part of the judicial competences that will establish guidelines for a free and independent power.

This article will be the cornerstone of the Tunisian judiciary system and includes an amendment proposed by the Ennahdha movement (حركة النهضة), introduced in the second sentence and asserting as follows: “Judges are appointed by presidential decree with the approval of the Supreme Council of the Judiciary. Appointments to high judicial offices are decided by executive decree on the proposal of the Minister of Justice”. The amendment was quickly contested. Other members have opposed to it, saying that the ultimate aim of the Tunisian revolution was the freedom of the judiciary system to establish a Rule of Law which is based on the separation of powers and the guarantee of freedoms.

This confusion of competences given by the role of the executive which, according to this article, will appoint senior judicial officers, would represent a threat to the principle of separation of powers. The amendment has passed with 109 votes in favour, 9 abstentions and 6 votes against; however, the article as a whole was rejected with 98 votes in favour, 13 abstentions and 12 votes against.

This decision has left a situation of legal uncertainty regarding the appointment of judges, and the morning after (14th January, 2014), the judges rushed into the streets of Tunis in order to protest against this and to claim the total independence of justice. A strike was immediately proclaimed until the Constituent Assembly will not reconsider the article and change it.

A strong media mobilization supported the demonstrations, members of the troika parts came into confrontation with the democratic bloc which is composed mainly by the opposition and on Thursday, the 16th a consensus has emerged while amending the section which led to the removal of the second sentence of the article and the addition of the following sentence: “The approval is required even if it is not compliant. The President of the Republic of Tunisia will be able to make the nominees only from the list proposed by the Supreme Council of the Judiciary. He may refuse, but he cannot appoint without this approval”.

The Tunisians were clearly relieved. This appointment on the basis of the list of the Supreme Council of the Judiciary guarantees the independence of the judges according to a rigid interpretation of the text. In spite of this, the articles concerning the Constitutional Court – which is intended to be the real innovation of the new Constitution since Tunisia has never known true Constitutional justice through an elected Constitutional Court – have not yet been brought to the Assembly to be voted.

In conclusion, the celebrations for the third year after the Tunisian revolution were characterized by tension and worry. Tunisians are far from certain about the future of their country but continue to hope for the restoration of security and social peace.

 

OUAMARA ZOUHOUR

Public Law expert at Faculté des Sciences Juridiques, Politiques et Sociales de Tunis