In Tunisia, the June 2013 draft Constitution provides (Arts.
100, 101 and 106):
The judiciary is an independent authority that ensures the
prevalence of justice, the supremacy of the Constitution,
the sovereignty of law, and the protection of rights and
freedoms.
Judges are independent. No power shall be exercised over
their rulings other than the power of the Constitution and
law.
A judge must be competent. He must commit to
impartiality and integrity. He shall be held accountable for
any shortcomings in the performance of his duties.
Any interference in the judiciary is prohibited.
The principles of judicial independence in Tunisia’s June 2013
draft Constitution recognize an important distinction between
judges’ personal independence and the institutional
independence of the judiciary. Alongside this distinction, this
Briefing Paper recognizes two more: the distinction between
the judiciary itself and the institutions that support the work
of the judiciary, and the distinction between judicial
independence in common law countries and civil law
countries.
1.2. THE DISTINCTION BETWEEN JUDGES’
PERSONAL INDEPENDENCE AND THE
INSTITUTIONAL INDEPENDENCE OF THE
JUDICIARY
Ensuring that judges decide cases fairly and independently is
only one element of judicial independence. Just as individual
judges themselves must be independent, the judiciary as an
institution must remain impervious to manipulation and
outside influence. Judicial independence implies both that
judges must be individuals of integrity and must decide cases
before them in accordance with the principles of judicial
independence and be free from outside interference, and also
that the judiciary as an institution functions autonomously,
without interference from the other branches of government,
in regulating its own administrative and internal
arrangements. The distinction between judges’ personal
independence and the institutional independence of the
judiciary is reflected in section 3.1 and section 3.2 below,
which deal respectively with constituting the judiciary and the
functioning of the judiciary.
court, as well as institutions and individuals responsible for
prosecutions, investigations and the collection of evidence,
must act impartially if judicial decisions are to uphold the rule
of law and respect and protect human rights.10 In section 3.3
below, the Briefing Paper deals with the international law on
how the institutions that support the judiciary affect judicial
independence. International law reflects the distinction
between the independence of courts themselves and the
independence of the institutions that support the work of the
courts.
1.4. THE DISTINCTION IN THE JUDICIAL SYSTEMS
OF COMMON LAW AND CIVIL LAW
COUNTRIES11
Differences between the common law and civil law traditions
affect the role of the courts and influence how judicial
independence should be understood in each context. First,
judges in common law countries are usually appointed on the
basis of their achievements during a long career as a legal
professional (the recognition model), while judges in civil law
countries are appointed as civil servants soon after a basic
legal qualification (the career model). Although politicians
may play a more important role in the appointment of judges
in the recognition model, and judges themselves play a more
important role in appointments in the career model,
opportunities for improper interference in the appointments
process exist under both models. Careful attention to the
rules for appointment in both civil law and common law
countries must ensure the independence of judges. Tunisia
follows the civil law tradition, as set out in the June 2013 draft
Constitution: the judiciary, the administrative courts and the
financial courts are structured on the career model, with
judges appointed as civil servants (Arts. 112-114). However,
the Constitutional Court is an exception, and is structured on
the common law, recognition model: judges are to be
appointed to the Constitutional Court after at least 15 years of
“high expertise” (Art. 115).
Second, judges in civil law systems generally play a more
active role in criminal prosecutions (the inquisitorial system),
as opposed to judges in the common law system who act as
passive adjudicators of opposing legal teams (the adversarial
system). While the distinction is not absolute (common law
judges play a role in pre-trial proceedings in identifying
relevant evidence, and trial lawyers in civil law countries are
active in suggesting evidence to inquisitorial judges), the
distinction emphasizes that the personal independence of
judges in civil law systems must receive special attention,
1.3. THE DISTINCTION BETWEEN THE COURTS
AND THE INSTITUTIONS THAT SUPPORT THE
WORK OF THE JUDICIARY
10
Judges do not operate the judicial system by themselves; they
are supported by other institutions. Judges must make
decisions on the basis of information and facts that are
presented to them by lawyers (on the distinction between
common law and civil law judicial systems in this respect, see
section 1.4 below). The legal representatives who appear in
3
UN Guidelines on the Role of Prosecutors, adopted by the Eighth UN
Congress on the Prevention of Crime and the Treatment of Offenders,
Havana, Cuba, 27 August to 7 September 1990.
11
In countries with a common law tradition, the courts play a central role in
the development of the law. Judicial decisions create binding legal
‘precedent’, which guides other courts in subsequent cases dealing with
similar matters. The ‘common law’ is the law that develops in this way
through the decisions of the courts. In countries with a civil law tradition,
comprehensive legal ‘codes’ purport to set out the law in its entirety.
Judges apply the law as it is stated in these codes, but their decisions do
not create precedent that other courts are bound to follow. In contrast to
common law countries, in civil law countries the law does not develop
through the decisions of the courts.