Strasbourg, 03/04/2012 (Agence Europe) - The 11-person delegation (chosen from the 22 people responsible for drafting the “justice” chapter of the new Tunisian Constitution) had two days of intense work on its schedule. The delegates were invited by the Council of Europe in Strasbourg to meet members of the “Venice Commission” on Thursday 29 March. They were also able to visit the German city of Karlsruhe where they were able to observe how the federal and constitutional courts operated. The visit occurred after the official announcement by the moderate Islamic party, Ennahda, that it would not include Sharia as the country's substantive law, and was therefore of particular significance.
On Friday 30 March, Fadhel Moussa, Dean of the faculty of political, legal and social sciences at the University of Tunis, declared that, “the question of Sharia has been on the agenda since the October elections”. Moussa is a member of the constitutive assembly and represents the opposition “Democratic Modernist” party (this party has five seats and belongs to an opposition group made up of 31 members as opposed to Ennahda's 89, out of a total of 217 MPs). He also stated that, “Sharia has provoked a big societal debate, which compared it to Article 1 of the former Constitution of 1959. That article said that Tunisia is a free, independent and sovereign country whose religion is Islam, whose language is Arabic and which is a republic in structure. That wording, we used to say, was enough and did not require the addition of anything else. Ultimately, they accepted it, which is mainly due to the mobilisation of civil society. I think, ultimately, that what saved the situation is the good sense displayed by a population that is 99% Muslim but which considers that Sharia is only an element of Islam and to use it for political ends would be dangerous. As testimony, the use of Sharia as a slogan by the fundamentalists and jihadists… The very fact that the political bureau of Ennahda rejected its draft by 50 votes to 13 appears to us to be a positive message with regard to Tunisia's political future”.
Did the “justice” delegation from the future Tunisian Constitution find the Strasbourg and Karlsruhe meetings useful? “Yes, definitely”, said Fadhel Moussa going on to say: “They are part of a learning, listening and consultation process that we have already launched throughout Tunisia among magistrates, notaries and court bailiffs but also among charities and NGOs. Our visit has broadened our horizons with regard to international experience and, in this context, the Council of Europe, which did a great deal of work in the new democracies born out of Eastern Europe following the fall of the Berlin Wall, is crucial. Since 6 December, we have had an intermediary constitution based on two important starting points: the judiciary must be completely independent and reform of the judiciary must be done in compliance with international standards. Our discussions with the Venice Commission mainly focused on these two aspects, as well as reform of the status for magistrates, the principle of absolute security of office for judges, guarantees for their careers when they are recruited, their salaries, which should ensure that they are not subject to corruption, as well as their training. A magistrate who has to make a number of telephone calls to understand the problem is much more exposed to manipulation than someone who is able to develop his own opinion. The question of the Supreme Magistrate's Council was also mentioned, which we want to remove from the remit of the executive power so that it is no longer presided by the head of state or justice minister.”
Other important points debated during the Strasbourg meeting included the status of the prosecutor's office and the State Counsel's office. “A specific statute needs to be found, which ensures their independence and we are examining the different formulas applied. The documentation that the Venice Commission provided us with is very comprehensive in this respect”. Fadhel Moussa said that the Karlsruhe meetings had proved a useful source of information not only on the strong points but also on what needs to be avoided. He said that he had been struck by the State's obedience to legal decisions relating from either national courts or the European Court of Human Rights in Strasbourg. He also said that, “the German civil code does not exonerate the state from seizing goods or from making general decisions etc”. He added that, “when the administrative court makes a decision, the state applies it without question. This is the total opposite of what we experienced in Tunisia before the fall of Ben Ali. The strength of the judiciary lies in the ability to provide fair trials and in this connection we met a legal adviser to the European Court of Human Rights to find out about how its jurisprudence worked, as well as how decisions were carried out”.
Reminder: the European Commission for Democracy through Law, also known as the Venice Commission, is an advisory body to the Council of Europe and strives to promote the European Union's spirit of constitutional law and provide any assistance in this connection to all states seeking to pursue reform in this sense. (VL/transl.fl)