Referendum on the constitutional reform bill in Tunisia
26 May 2002


LECTURE ON THE CHAMBER OF ADVISORS
AND THE CONSTITUTIONAL COUNCIL
IN THE CONSTITUTIONAL REFORM PROJECT

By Fethi ABDENNADHER
Member of the RCD Central Committee
and President of the Constitutional Council

Tunis, February 19 2002

Chamber of Advisors

It is a signal honor for me to be entrusted today with giving a paper on two important issues of the draft for fundamental constitutional reform that was announced by President Zine El Abidine Ben Ali in the speech he made to mark the 14th anniversary of the Change, a speech that can be seen as a reference.
Today this consistent project is in your hands. It includes the package of reforms the Head of State announced.
This morning, my colleague Zouheir Mdhaffer dealt with several aspects of this draft of a constitutional law.
I myself shall more specifically address the creating of a Second Chamber, or a second Legislative Council, i.e. the Chamber of Advisors, and the extending of the prerogatives of the Constitutional Council in order to monitor the national elections and consolidate the neutrality and independence of the Members of the said Council.
The Chamber of Advisors.

We should recall what the President (of the Republic) said about this subject, i.e. that the vision of the forms of popular representation within the legislative had evolved and that, while adopting and strengthening general representation via the direct election of the representatives of the people, the project will involve securing a wider representation of the regions and the different elements that make up society, by creating a Second Chamber alongside the Chamber of Deputies. This should enrich the legislative as well as politics generally.

President Ben Ali was thus summing up the evolution of parliamentary representation that has taken place in constitutional thought and the growing trend whereby a bicameral legislative is becoming more usual. Indeed, some people now speak about a globalization of this bicameral system.
In the late 1970s only 45 countries practiced this system, whereas today 70 countries have adopted it and another 12 have declared their intention to do so.

In our close neighborhood, we have seen that three of the UAM have instituted a second Legislative Council and that generally speaking Second Councils are being set up with every year that passes.

Historically, the bicameral system has until very recently had a strictly political character.

The Second Council is either a means of expressing the interests of a given social class and its representation within a system of a unified state at a given time in its political history (as in England, from the early 14th century - the House of Lords), or this Second Chamber is basically an expression of the autonomy of federated states and their participation in running the federal state apparatus. This is what happened in the United States of America, where in 1787 a Senate was created, which represented the states, alongside a Congress which represented the entire population; this is an example of the second type of Second Chamber.

But although the bicameral system is acceptable, and preferable, for a federal state, a Second Chamber has often been viewed with reservations that have varied in intensity from one constitutional school to the next.
(The context does not allow me to go into this in greater depth.)

Second Chambers have not been so widespread in unified states as they are today. Let us remember that the first draft Constitution, before the Republic was proclaimed, had a section on the legislative. It provided for a National Council exercising the legislative power and a Choura (advisory) Council of thirty members who would be elected by the Regional and Municipal Councils.
But this idea was later abandoned, probably because of the small degree of enthusiasm the idea of the Chamber-system inspired in those days.

As for today, the issue is less one of the concept of sovereignty, its indivisibility or of a counterweight to the First Council, usually conservative due to its modalities of…..
……………..going beyond competition or conflict and falling within a process of complementarity, making the diversifying of popular representation and its formulae of expressing the general will a means of enriching and deepening legislative action.

I - The Second Chamber, diversifying popular representation:

1/ Introduction:

Popular representation is general on the grounds of the rule of demographic representation.
It may however be based on representing the citizen either according to his geographical area, within the context of decentralization, or according to groups or economic and social organizations, representing other kinds of interests.

Taking these factors into consideration in popular representation is an element of insertion and integration, since constitutional and more especially parliamentary institutions give an important place to the elements that make up the nation or society, and this is likely to contribute to stability, particularly at a time of rapid, successive change. And this is another key to the success of the democratic process.

Today, politicians and specialist thinkers share the belief that the two-chamber system is a constantly innovative, even futuristic, idea because of the promising elements it harbors, leading to better integration of the constituent elements of society and the success of the democratic process.

The integration that Second Chambers secure for the consistent elements of society is more explicit in certain countries, whose sociological groupings are complex because of religious, language, ethnic or other factors.
This is what we notice in Belgium, for example, or in certain African countries and Lebanon, which instituted the principle of creating a Second Chamber in order to counter problems springing from the variety of confessions found there.

Consequently, the two-chamber system is in no way seen as a constitutional luxury because it is grounded on a new approach that takes as given an interaction with the requirements of national reality, today becoming even more complex.

So creating in a given country a Second Chamber alongside the Parliamentary Chamber is an expression of another form of representation than popular representation in its abstract, general sense.
Seen as such, it provides a backing that is likely to make a major contribution to consolidating democracy via strengthening the legitimacy of those institutions that include local, social or economic elements, crystallizing the collective will from which it springs.

And it is because the creation of Second Chambers is first and foremost a response to national requirements, intended to represent fringes or elements of society, that their composition differs from that of parliamentary institutions - otherwise, there would be a similarity and thus a lack of efficiency - and varies from one country to the next, according to each one's own special reality.

Some stress the representation of the society's traditional elites, often neglected by an abstract view of popular sovereignty, thus producing a discrepancy between a constitutional given and national reality (Africa).

Others focus on social and economic elements (e.g. Morocco and Slovenia), regional criteria (France, Algeria, Mauritania and Poland) or skills (Ireland and Slovenia).

i) The choice (option) of project:

There can be no doubt that the composition of the Chamber of Advisors as presented in the draft constitutional review, bringing together members of the public communities in each gouvernorat, the employers' representatives, the farmers' and wage-earners' representatives, and those of public figures or national skilled workers, springs from certain introductory considerations.

This composition secures the representation of the regions and the social, economic or skilled elements (and our society has many of these, thanks to the pioneer policies counting on the intelligence of the children of this people) of our society.

Nor can we doubt that the third element in the composition of the Chamber of Advisors, (represented by public figures and national skilled workers) offers the possibility of making good any deficiencies that could result from the election of the first two elements.
This would not be likely to completely achieve the object of creating this Chamber.

But representing the regions and the elements that make up society should not be used as a pretext or springboard for converting the action of the Second Chamber into a grandstand for its constituent elements.
That is why the last clause of the new draft Article 19 stipulates that members of the Chamber of Advisors should not be linked to local, class or sector-based interests.

II - The modes of access to the Second Chamber secure this representation

1/ Introduction:

Although the composition of Second Chambers differs from one country to the next, according to the requirements and complexities of the national reality of each, the modes of access to these Chambers differ according to country and according to what the need to represent the constituent elements of each Chamber requires.

Some countries have universal suffrage. This can be direct, indirect or a mixture of the two.
Some Chambers combine election and appointment, but the number of elected members is usually greater than that of the appointed members (Algeria, Chile, Croatia, Ireland, Italy and Kazakhstan).
Fourteen Chambers have the co-optation system, like England, Canada, Jordan and Cambodia.

i) Choice:

The project has chosen to associate election and appointment. (New) Article 19 stipulates that Members of the Chamber of Advisors are divided up in this way:
One or two Members for each gouvernorat, according to the number of residents, elected at regional level from among the Members elected by the local communities.
One third of the Members of the Chamber is elected at national level from among the country's employers, farmers and wage-earners; their candidacy is proposed by the professional organizations concerned, within slates including at least twice the number of seats reserved to each sector.

The seats are equally distributed between the concerned sectors.
The remainder of the Members of the Chamber of Advisors is appointed by the President of the Republic, whose legitimacy springs from direct universal suffrage, from among the above-mentioned public figures and national experts.

Here, the following observations may be made:

1. Election is by free, secret ballot..

2. Election is indirect since the electoral body is made up of Members elected by the local communities (Municipal Councilors and Deputies) who enjoy direct electoral legitimacy.

3. Election of Members for each gouvernorat is done at regional level.

4. Members for the employers, farmers and wage-earners are elected nationally, so that the members of the local communities form a single electoral college.

5. To take into consideration the aspect of representing Members for the employers', farmers' and wage-earners' sectors, the professional organizations concerned suggest candidates within slates that include at least twice the number of seats reserved to each of these sectors.

6. Seats are equally distributed between the employers', farmers' and wage-earners' sectors.
Naturally, it is for the Electoral Law, which is an Organic Law, to set the modes and conditions for election of Members of the Chamber of Advisors.
As to eligibility criteria for the Chamber of Advisors, this is set out in (new) Clause 2, and in Clauses 3, 4 and 5 of Article 21, and is either common to all candidates whatever the modes of their access to the Chamber, or gives specific conditions for each category.

Common conditions: the candidate must satisfy the conditions for an elector, be born of a Tunisian father or mother, and be 40 years old the day he stands as candidate.
These conditions also apply to the appointed Members of the Chamber of Advisors.

Specific conditions depend on the category of access to the Chamber; for members for the gouvernorats, each must be an elected member of a local community and have, according to individual circumstances, the professional quality that enables him/her to stand as candidate for the sector by which s/he is concerned.

III - The number also corresponds to precise requirements:

1/ Introduction:

A recent study about the number of members of Second Chambers showed that in countries adopting the two-chamber system, the number of Members of Parliament, with both Chambers, was about the same as that of the Members of one single Chamber, taking into consideration - of course - the demographic factor specific to each country.

This consideration appears to be acceptable since some people have taken to denouncing the two-chamber system as expensive, making this the clinching argument that it is useless to create a Second Chamber at a time when the countries preferring the single chamber are increasing the number of Members of the single Chamber in an attempt to give greater opportunities to social categories and fringes, possibly unable to have access when the number is rather small.

Setting aside the pertinence of this study and the results it reached, the issue of number is certainly an important one.

So much so that most of the countries which have adopted the bicameral system write this number into their Constitutions, within limits that are lower than that of Members of the First Chamber, except the House of Lords in Great Britain (over 1000) or the Senate in Italy (324).
In 50 countries, the number of Members of the Second Chamber is not more than 110. ( The number of Members in the Chamber of Advisors)

This was consecrated by the draft Constitutional Law, which set the maximum number of Members of the Chamber of Advisors at two-thirds that of the Members of the Chamber of Deputies. But the Electoral Law has to set this number every six years, bearing in mind the number of the then Chamber of Deputies.

IV - Legislature of the Chamber of Advisors:

1/ Introduction:

The legislature differs from one country to the next. The first intention was to have a relatively long-lasting legislature compared with the First Chamber, excepting the case of Federal States.
The understanding of the Second Chamber, especially in unified states, principally aimed at sheltering this structure from frequent elections and thus preventing it from being influenced by passing political pressure.
So much so that most states with bicameral systems do not permit the Second Chamber to be dissolved.

Among these countries, some have chosen an 8- or 9-year legislature, with a view to securing a sure majority and stability (like France, Morocco, Brazil, Liberia and Chile).
To guarantee this stability, a third of the Members of the Chambers are often renewed (every three years, for example) or half the Members (every four years, for example).

But the length of the legislature is criticized because Members could cut themselves off from national and social reality, outside the sector which they are supposed to represent, in one form or another.
So there is a trend towards a shorter legislature, of six years, for example (currently being debated in France).
Forgetting the case of Great Britain, where Members of the House of Lords sit for life, most countries adopt a legislature that does not exceed 6 years, with a few exceptions like Bosnia (2 years), Malaysia and Burkina Faso (3 years).

+ The term within the Chamber of Advisors:

The draft constitutional review set a six-year term for Members of the Chamber of Advisors. Half the Members are renewed every three years (new Article 22).
To respect the rule of parity in renewal, the interim arrangements provided for (Clause 3, Article 5 of the draft) stipulate that, unlike the provisions of (new) Article 22 setting a six-year term for Members, half the Members of the Chamber of Advisors are renewed during the first term and at the end of the third year of the said term, by drawing lots, bearing in mind the distribution applied according to sector when forming the said Chamber.
Furthermore, this renewal will take place according to the modes and conditions that gave the concerned Members access to this Chamber, whether they were elected or appointed.

The interim provisions were here made so clear that they require that this renewal be completed before the end of the three-year period, in order to allow the Chamber to sit with its new Members from the end of the …………… …….. every three years becomes ordinary, and the term will be a 6-year one for everyone concerned.

V - The prerogatives of the Chamber of Advisors:

1/ Introduction:

Here also there is an enormous difference.
Although the First Parliamentary Chambers are similar in their legislative or constitutional prerogatives, with a few variations according to the kind of system (parliamentary or presidential), the attributions of Second Chambers differ from one country to the next.
They do not all have the prerogatives of revising the Constitution.
Less than one in four Councils of this type have legislative prerogatives that equal those of the Parliamentary Chamber.

We can particularly mention here Austria, Bolivia, Brazil, Colombia, Romania, Switzerland, Italy and the United States of America.
And at least six countries only give Second Chambers advisory prerogatives, like Egypt, Slovenia and Croatia.
As for the other states, either they give these Councils an attributed legislative competence, i.e. in some fields rather than others, perhaps excluding certain Organic Laws from being examined by them (France), or they do not associate them with every stage of the passing of a law.
Only 32 out of 70 states give Second Chambers the right to initiate laws and only 39 give them the right to amend laws.

Similarly, some states grant the First (i.e. Parliamentary) Chamber the right to definitively rule where there is disagreement (the 'right to the last word').
Ten states have this mechanism, including France, Spain, Ireland and Morocco.

a) The prerogatives of the Chamber of Advisors and its relationship to the Chamber of Deputies:

(New) Article 28 stipulates that the Chamber of Deputies and the Chamber of Advisors exercise the legislative power in accordance with the provisions of the Constitution.

The first remark we have to make here is that the draft constitutional revision does not confer on the Chamber of Advisors any prerogative of examination concerning revision of the Constitution, either at the level of initiating, or amending, on adopting, either during an ordinary revision of the Constitution, the procedures for which are governed by Articles 76, 77 and 78, Section 10 of the said Constitution, or as regards a constitutional revision required by Maghreb integration, in accordance with Clause Two of Article 2 of the Constitution.

However, the exercise of the legislative power by the Chamber of Advisors falls within what might be termed attributed legislative competence.
This attributed competence is shown either in the matter of laws that come under its right of examination, in the field of the initiative, or in that of adoption.

I- Laws: these are Organic Laws and Ordinary Laws, without for all that laws on ratifying treaties, declaring war and signing peace, proroguing the legislatures of both Chambers or of the Presidential term for reason of war or imminent danger falling within its field of examination.

II- As for the initiative, the draft in question has not conferred on Members of the Chamber of Advisors the right of initiating bills, as is the case for Members of the Chamber of Deputies.

III- As for revision, Members of the Chamber have this right, in accordance with Article 28 concerning the conditions of admissibility and of what the provisions of the Organic Budgetary Law say about this.

IV- Adoption: three cases, the first concerning draft budget laws, the second other bills, and the third adoption in the event of the draft being rejected.

i- Concerning the budget, draft (new) Article 28 stipulates that the Chamber of Deputies and the Chamber of Advisors pass budget bills. However, if on 31 December the Chamber of Advisors has not passed the budget bills, whereas the Chamber of Deputies has passed them, they are submitted to the President of the Republic for promulgation.
The Chamber of Deputies has the last word.
This is extremely important, considering the position of the budget and its role in making the state mechanisms function.
So important is this that even if the Chamber of Deputies has not in its turn passed the budget by 31 December at the latest, the provisions of the budget bills can be put into force by decree in three-monthly renewable blocks.

ii- Concerning other laws, we point out that many states, to avoid the delay caused by disagreements arising between the two Chambers, about bills or provisions which are part of them, choose to give preference to the First Chamber as holder of the general legislative competence, via various mechanisms.
In France, for example (and other countries have also done the same), where there is disagreement, the government has the initiative of setting up a mixed joint commission - made up of Members of both Chambers - to manage to draft a common text.

If the attempt fails, the government may ask the National Council to make a definitive ruling on this draft.
In the draft under consideration, a mechanism has been introduced that is likely to avoid delay in legislative action due to disagreements between the two Chambers. New Article 33 regulates this subject in a very clear way:

1. Bills presented by the President of the Republic are submitted to both Chambers (in cases where the Second Chamber is competent).

2. The Chairman of the Chamber of Deputies informs the President of the Republic and the Chairman of the Chamber of Advisors that the Chamber of Deputies has passed a bill. This information is accompanied by the text that has been adopted and the Chamber of Advisors examines this bill (not the bill originally submitted).

3. The Chamber of Advisors has fifteen days to examine the bill submitted to it by the Chamber of Deputies.

4. Three possible cases appear:

i- If the Chamber of Advisors does not pass, or does not complete its examination of, the text within the time provided for, the Chairman of the Chamber of Deputies submits the bill that has been passed by the Chamber of Deputies to the President of the Republic for promulgation.

ii- The Chamber of Advisors passes the text that is being submitted to it by the Chamber of Deputies …….without amending it.. The Chairman of the Chamber of Advisors submits it to the President of the Republic for promulgation, and informs the Chairman of the Chamber of Deputies.

iii- There is an amendment. The Chairman of the Chamber of Advisors submits the draft to the President of the Republic and informs the Chairman of the Chamber of Deputies.
Then, at the suggestion of the government, a mixed joint commission made up of Members of both Chambers is formed in order to draft a common text, approved by the government, about the provisions that were the subject of the disagreement, within one week (….).

- If there is agreement on a common text, this is submitted to the Chamber of Deputies to rule on, within one week.
Either it adopts it and then submits the amended text to the President of the Republic for promulgation, or it does not adopt the amendments, and the bill it originally passed is submitted.

- If the commission cannot come up with a common text within the deadline, the bill adopted by the Chamber of Deputies is submitted to the President of the Republic for promulgation.
This solution, which originates in certain experiences, though without imitating them, allows the appropriate mechanisms to be set up to avoid the delays many states complain of, where there is disagreement between the two Chambers.

And this is a solution which gives the Chamber of Deputies the last word, after the Chamber of Advisors has been offered the possibility of making its decision, informing the Chamber of Deputies about this, and forming a mixed joint commission in order to reconcile views and adopt a common text.
This procedure is probably one of the most important mechanisms of debate between the two Chambers.
It is said that discussion brings forth light, to find solutions after things have been supported and made clear to everyone. The most important thing is the debate, not the declaiming of positions!

I should not like here to use the famous quotation to the effect that if the First Chamber is the imagination of the Republic, the Second Chamber is that of its reason. This is rather an old chestnut, as I have already said.
But this will create the best conditions for doing what is necessary from the time when the bill is simultaneously submitted to both Chambers.

It offers the Chamber of Advisors an opportunity to study the bill within a sufficient period of time, before it is examined after being passed by the Chamber of Deputies.

- A final observation here: more or less the same procedures are followed in the case of an initiative for a bill coming from the Deputies, except for the fact that the government does not intervene either in the initiative to set up a mixed joint commission or in the common text issuing from this commission.

c. Adoption after the President of the Republic has used his right to send back the bill.

Article 52 of the Constitution institutes the right to send back the bill that has been adopted, or the right of veto.
The President of the Republic may have recourse to the right of sending back the bill for reasons of estimation (the right of political veto), or for reasons concerning the anti-constitutionality of a bill (right of constitutional veto).

If the President of the Republic uses his right of political veto, the adoption of the bill anew requires a rounded off two-thirds majority.
But if the veto is used on constitutional grounds, the majority required for the bill to be adopted anew is the same as was necessary for passing a law. (See new Article 28.)
In this case, i.e. where the right to send back a bill is exercised, in both versions by the President of the Republic, the choice has been made to reserve examination of the bill to the Chamber of Deputies, for the same considerations that we have already shown. (See Article 52, Clause 2 and (new) Clause 3 of the draft).
Here, ladies and gentlemen, are the main points of what we can say about creating a Second Chamber.
The paper has not exhausted all the facets of the issue, such as the legal status of Members of the Chamber of Advisors from the point of view of immunity, which is identical to that of Deputies.

Nor have we mentioned the sessions of the Chamber of Advisors, which are more or less governed by the same provisions as the sessions of the Chamber of Deputies.
The same holds good for the duty to take the Constitutional oath and the commissions of the Chamber of Advisors.

And on another topic, not on the subject of legislation, we have not mentioned the role of the Chairman of the Chamber of Advisors when there is a definitive vacancy of the President of the Republic that coincides with a dissolution of the Chamber of Deputies.

In this case, the Chairman of the Chamber of Advisors is invested with the office of Provisional President, and the duty of informing him of the provisional delegation by the President of the Republic of his prerogatives to the Prime Minister, such as the fact of consulting him when the President of the Republic takes exceptional measures.

And I should like to conclude my remarks about the Chamber of Advisors with the interim provisions (Article 5 of the draft constitutional law) which stipulate that the Chamber of Deputies exercises its legislative prerogatives alone until a Chamber of Advisors is formed and its rules of procedure adopted.
Similarly, the relationship between the two Chambers is laid down by an Organic Law (end of new Article 5 of the Constitution).

It would be useful on this precise point to point out that new Article 18 forbids sitting at one and the same time as a Member in the Chamber of Deputies and in the Chamber of Advisors.
--------------------
The Constitutional Council

President Zine El Abidine Ben Ali has recalled that the Constitutional Council was the first institution he set up just after the Change in order to strengthen the rule of law and the primacy of the Constitution. He then upgraded it progressively by incorporating it into the Constitution, increasing its powers and making its opinions binding on all public authorities. After recalling these facts, he announced his intention to develop this institution further by proposing a draft constitutional reform that consolidates the neutrality and independence of the Council members and entrusts the Constitutional Council with the operations of the presidential and legislative elections.

Accordingly, the constitutional bill includes a number of provisions concerning the Constitutional Council. Upon examination, these provisions show that the bill has maintained the system of control of constitutionality of the laws adding to it the control of constitutionality of the rules of procedure of the Chamber of Deputies and the Council State. The bill expands the competence of the Constitutional Council by assigning to it the control of presidential and legislative elections as well as of referendums. It also provides for the composition of the Council and includes a number of procedures and mechanisms to guarantee the neutrality and independence of the members.

I - Maintenance of the system of control of the constitutionality of laws, and addition of the rules of procedure of the Chamber of Deputies and the Council of State

It many be recalled that the system of control of constitutionality of the laws in Tunisia is an a priori control similar to the one applied in countries that follow the system of constitutional councils. It is a preventive control exercised before the entry into force of the laws.

However, the originality of the Tunisian experience lies in the mandatory submission of organic laws as well as of ordinary laws that relate to rights and freedoms, prior to their transmission to the legislative authority. And that is the second aspect of the said originality considering that other constitutional council have to look into organic laws after their adoption by the legislative authority and before their entry into force, but look into ordinary laws after their adoption only at the request of the government or the legislative council. Consequently, it is possible that an unconstitutional ordinary law be enacted if no party entitled to raise any constitutional problem about it does so, considering, moreover, that the field of ordinary laws is vast and concerns, to a large extent, fundamental rights and freedoms.

For this reason, the upgrading of certain rights and guarantees to the level of the Constitution indirectly strengthens the role of the Council given the fact that its mandatory examination encompasses the bills relating to rights and freedoms.

It is noteworthy that the difference between the above two types of a priori control is clear and due to differing bases : The French Constitutional Council which has been imitated by many states was established essentially to play the role of arbitrator in the event of disagreement between the executive authority and the legislative authority. That is why such control is often referred to as political control. Indeed, the intervention of the Constitutional Council occurs in most cases to resolve a dispute either between the executive authority and the legislative authority or between the majority and the opposition. As a result, the constitutional control takes place within a political framework in which every party has taken a stand and firmly adhered to it which puts the ruling of the Constitutional Council in a dialectic that is more political than legal. In recent days we have followed many declarations on the role and powers of the French Constitutional Council following a number of decisions it had made.

Such a scenario cannot possibly happen in Tunisia since the bill is submitted to the Constitutional Council before any stand is taken n it, That is before being examined and adopted by the legislative authority. In this way, the control does not go beyond its juridical constitutional boundaries and the Constitutional Council carries out its control far from such factors as those mentioned above and with a purely technical outlook, which facilitates the resolution of any problems that my by raised by the Constitutional Council carries out its control far from such factors as those mentioned above and with a purely technical outlook, which facilitates the resolution of many problems that may be raised by the Constitutional Council and the transmission of the bill to the Chamber of Deputies free from any constitutional shortcomings. This is what the President meant in one of his speeches when he said that, in this way, the Chamber of Deputies adopts the laws while being assured of their constitutional soundness.

The comment published recently in a French weekly on the political uproar created by a decision of the Constitutional Council, and the need to surmount this difficulty by introducing a reform aimed at reducing the number of laws annulled by the Constitutional Council, through mandatory submission of the bills to the Constitutional Council prior to their adoption, this comment is perhaps the clearest indication that the Tunisian experience is effective as it has added to the prior control of laws an important factor which has delivered it from non-juridical considerations. The author of the article went as far as to say that the increase in the number of disputes between the Constitutional Council and the elected authorities constitutes the greatest danger to both parties, namely the danger of the arbitrary power.

Thus the Tunisian system concerning the control of constitutionality of the laws has been put to the test and proved its soundness and voices have started to call for its adoption. Accordingly, the draft reform maintains the scope as well as the procedures of this type of control, adding to it the control of constitutionality of the rules of procedure of both councils prior to their application since the rules of procedure, not withstanding the fact that they concern the work and proceedings of the legislative council, supplement to a large extent certain provisions of the Constitution.

II - Extension of the competence of the Constitutional Council to include the elections:

The draft amendment entrusts the Constitutional Council with the control of national elections as represented by presidential elections, legislative elections and referendums. Accordingly, the Council does not look into other elections such as the municipal ones for instance.

The Constitution shall be the source of power and competence of the Constitutional Council as stated in its provisions concerning the Council jurisdiction within the proposed paragraph 4 of article 40 and the proposed paragraphs 4 of article 72 and 75, and in accordance with the conditions stated in the Constitution and the draft amendment for the election of the President of the Republic and the members of the Chamber of Deputies and the Council of State.

The Electoral Law is also a source of the jurisdiction and competence of the Constitutional Council since the Constitution has assigned the Electoral Law to determine the modalities for monitoring the presidential elections, the legislative elections and the referendums and to set the terms and conditions for electing the members of the Chamber of Deputies and the Council of State. Another source is the Statute of the Constitutional Council which determines the rules governing the proceedings and procedures of the Council itself.

The assignment of the Council in this chapter comprises the presidential elections, the legislative elections and the referendums.

1/ Control of the presidential elections:

The current article 40 provides for the appointment of a committee composed of the president of the Chamber of Deputies and four members. The committee determines the eligibility of candidates, announces election results and looks into challenges that may be presented to it on the subject in accordance with the electoral law.
Therefor, the Council examines the admissibility of candidacies in relation to the constitutional and juridical requirements to be met by the candidate unlike the legislative elections which are governed by a special system in this respect. After checking whether the relevant constitutional and juridical requirements have been fulfilled, the Constitutional Council declares the eligibility or ineligibility of candidates. It will be required to play the same role in the event of a second ballot in the presidential election, under the proposed provisions in the draft constitutional amendment.

Without anticipating the events or the contents of the Electoral Law in this respect, it is logical that the Council declaration or the admissibility of the candidacy is final and not subject to any form of challenge whatsoever since the Council has the final word on the issue and its decisions are absolutely irrevocable (article 75, paragraph 4).

While the Council does not intervene in the organization of the elections, the proposed amendment assigns it to announce the election result after looking into such challenges as may be presented to it on the validity of the electoral process and its decisions on the subject are final as we have suggested above.

2/ Control of the legislative elections:

It may be recalled that the Constitution does not specify what body shall be competent to determine the validity of the election of members to the Chamber of Deputies. The Electoral Code had empowered the Chamber of Deputies to determine the admissibility of its own members.

This provision, however, aroused criticism and under the amendment to the Electoral Code, adopted in 1988, i.e. after the Change, a special committee was set up to examine any challenges expressed with regard to disagreement in the registration of an electoral roll, the eligibility of a candidacy or the validity of election processes. The Committee consists of the president of the Constitutional Council as chairman and the first president of the Court of Cassation and the first president of the Administrative Tribunal. This committee announces the election results and informs of them the president of the Chamber of Deputies.
The proposed paragraph 4 of article 72 empowers the Constitutional Council to judge the challenges relating to the election of members to the Chamber of Deputies and the State Council.

It should be noted that the Constitutional Council, playing a different role from that in the presidential election, controls the operations of the legislative elections through the challenges submitted to it and does not examine directly or automatically the eligibility of candidates in the elections.

The Electoral Law will spell out the procedures of this control which will include, in our opinion, the steps currently provided for in the Electoral Code (article 106). The decisions of the Constitutional Council will be without appeal.

3/ Control of referendums:

I. Subject of the referendum:

A referendum may be held in many fields. It may be constitutional, consultative or legislative.

A.1: Constitutional referendum: Two cases

a) The first case is provided for in article 2, paragraph 2 of the Constitution and concerns the Maghreb integration considering that some of the treaties to be concluded to that effect may be incompatible with the Constitution. In this case, the President of the Republic must submit them to a popular referendum after their adoption by the Chamber of Deputies. Accordingly, he constitutional referendum would be mandatory.
This explains why such treaties are submitted to the Constitutional Council for consideration prior to their presentation to the Chamber of Deputies for approval. The Council decides whether their ratification requires the recourse to a referendum or falls within the framework of ratification by an ordinary law.

b) Second case: amendment to the Constitution under article 10 thereof. The resort to a referendum would be optional and left to the discretion of the President of the Republic.

A.2: Consultative and legislative referendum:

This type of referendum would also be optional and may be initiated by the President of the republic directly and immediately either on a major issue relating to the supreme interest of the nation, and this is what we mean by consultative referendum, or on bills of national significance, and this is what we mean by legislative referendum, i.e. a referendum aimed at approving a bill.

B. Control of the validity of referendum operations and announcement of their results
The control of referendum operations is currently the task of the above-mentioned three-member committee.
Under the constitutional bill, and unlike the legislative elections where the intervention of the Constitutional Council is subject to the existence of challenges, the Constitutional Council monitors the validity of referendum operations. While it is not possible at present to predict the procedure to be established by the electoral law after the approval of the constitutional amendment, it may be stated, on the basis of the proposed paragraph 4 of article 72 of the Constitution, that the monitoring process will include monitoring during the polls. On the other hand, judging from the current provisions of the Electoral Code, control during the polls does not means that the Constitutional Council will take the place of the authorities concerned with conducting the referendum. It is only a matter of monitoring through representatives of the Council who will prepare reports on the subject, to which the Council will refer before proclaiming the results of the referendum. This in itself constitutes the control that the Council carries out after the polls when it may annual all or part of the referendum operations.
The proclamation of the results is final and constitutes an irrevocable decision (article 75, paragraph 4).

III - Enhancement of the neutrality and independence of the members of Constitutional Council

The extension of the Constitutional Council competence to include the control of national elections and the examination of the constitutionality of the rules or procedure of the two councils (i.e. the Chamber of Deputies and the Council of State) along with the prevailing provision of the Constitution that the opinions of the Constitutional Council are binding on all public authorities require a consolidation of the neutrality and independence of the Council members.

The proposed new article 75 of the Constitution provides for the composition of the Constitutional Council for the first time as the matter, this for, has been left to the ordinary law.
The Constitutional Council is composed of nine members six whom, including the president, are appointed by the President of the Republic for a period of three years that may be renewed twice, and the other three are ex officio members namely the first president of the Court of Cassation, the first president of the Administrative Tribunal and the first president of the National Audit Office.

What may be observed at this stage of the analysis is that three members are to be appointed ex officio. They are the top officials of supreme judicial institutions: the Court of Cassation, the Administrative Tribunal and the National Audit Office. The very nature of their functions and their legal positions require them to be both neutral and independent.

With regard to the remaining members, including the president, the limitation of their term of office (to three years) constitutes a new guarantee for their neutrality and renewal of the mandate does not affect such neutrality. This procedure is applied in such countries as Switzerland and Portugal.

As regards the assertion that appointment by several quarters constitutes a guarantee of neutrality and independence, this assertion needs to be proved. In this context, I would like to refer to the statement made by a professor of law and former member of the French Constitutional Council in a book he has written on the Constitutional Council (Professor François Luchaire) that all appointments are discretionary. In the United States itself, the appointment of judges to the Federal Supreme Court is the clearest proof of such a political and discretionary character. However, he goes on to say that a jurist is, by natural disposition and by virtue of his training and experience, accustomed to addressing legal issues away from any influencing factors. I content myself with this statement because it is extremely important.

On the other hand and regarding such guarantees as may strengthen the neutrality and independence of the Council members even further, the proposed article 75 of the Constitution has adopted a series of provisions including forbidding members to exercise any governmental or parliamentary functions, to assume any party of trade union leadership functions and to undertake any activities that may affect their neutrality or independence. The law may also specify other cases of posts that cannot be held concurrently. Those are negative conditions likely to enhance the neutrality and independence of the members of the Constitutional Council. They are reminiscent of the conditions set for judges. The same new article 75, however, also provides for positive guarantees to be granted to Council members in connection with the exercise of their functions and their requirements.

Ladies and Gentlemen, those were the provisions of the draft constitutional law regarding the establishment of a second chamber and the development of the Constitutional Council. They have been introduced after the presentation made by Brother Zouheir Mdhaffer on the enhancement of human rights in the text of the Constitution, the activation of the government relationship with the legislative authority and the development of the presidential election system.

The proposed constitutional amendment, with all its dimensions, truly constitutes a fundamental constitutional reform as stated in the speech of President Zine El Abidine Ben Ali. It is a fundamental reform by virtue of the provisions it contains on the consolidation of human rights and the activation of their guarantees, the continued reinforcement of loyalty to Tunisia, the extension of popular representation, the development of governmental action, the activation of the government relationship with the Chamber of Deputies, the development of the system of presidential elections, the extension of competence of the Constitutional Council and the enhancement of neutrality and independence of its members. It is a fundamental reform because it is based on a prospective view which paves the way for the country to enter a new phase for the country to enter a new phase during which the republican regime and its basic elements will be strengthened, and democracy, pluralism and freedoms will be reinforced. Lastly it is a fundamental reform because it lays the foundations for the republic of tomorrow.

Thank you for your attention.