Conference in Tunis on “The Principle of Proportionality: Significance, Scope, Control Mechanisms”

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Published: January 21, 2020

On 18 and 19 December 2019, the IRZ, in partnership with the “Provisional Authority for the Examination of the Constitutionality of Draft Laws” (IPCCPL) and the Supreme Judicial Council of Tunisia, organised a two-day conference in Tunis on “The Principle of Proportionality: Significance, Scope, Control Mechanisms”. The event was held as part of the judicial reform project in Tunisia, which the IRZ implemented between 2017 and 2019. The project was supported by the German Federal Foreign Office.

The conference was part of project component III supporting the development of the Constitutional Court in Tunisia. The creation of a Constitutional Court was set out in the Tunisian constitution of 2014.

The conference dealt with the principle of proportionality, its significance and historic roots in German and Tunisian law and with issues concerning the suitability of the principle for dealing appropriately with the limits, challenges and considerations in the context of constitutional law.

The following experts from Tunisia and Germany gave lectures at the event:

• Prof. Dr. Sami Jerbi, IPCCPL and a professor in private and commercial law at the University of Sfax in Tunisia
• Winfried Schubert, former President of the Constitutional Court of the State of Saxony-Anhalt
• Sondes Bachnaoui, a judge at the Constitutional Court of the North Tunisian province of Kef
• Prof. Dr. Reinhard Gaier, a former judge at the German Federal Constitutional Court
• Prof. Dr. Mustapha Ben Letaief, a professor in public law at the Law Faculty of the University of Tunis, Tunisia

The experts established that the lack of uniformity in the way judges interpret the law in Tunisia is down to the absence of a functional constitutional court in Tunisia. Without a constitutional court, the implementation of “straightforward” standardised legal principles presents a problem for members of the supreme courts. In Tunisia, this affects judges at the Court of Cassation as well as administrative judges. After all, the passing of unconstitutional legislation can only be revoked by a constitutional court. The absence of this controlling body also hinders straightforward civil and criminal jurisdiction in general and implies legal uncertainty for all judicial authorities.

The principle of proportionality was generally perceived by the Tunisian participants as a suitable test for the administration and application of the law and is increasingly being applied not only in public law but also in a similar form in Tunisian civil and criminal law.

Since the parliamentary elections held in Tunisia in September and October 2019, the Tunisian government has been working intensively under the newly elected President without a party, Kais Saied, to set up a workable constitutional court. Once the act on setting up a constitutional court law has come into force, the court will be able to formally start work. However, this is being prevented from happening because of the failure of Parliament to agree on the appointment of suitable candidates for judges.

Until the time when the Tunisian Constitutional Court becomes fully functional, the IRZ is advising the IPCCPL with specialist expertise. The aim of this project is to support the political and legal institutions of judicial and executive authorities in the execution of the functions that are embedded in its constitution. In concrete terms, this means that the IRZ plans to continue with the constitutional support it has provided until now. However, more time is still required to achieve these objectives.