Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
The 2014 Constitution provides for a “state of exception”.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
Decree 78-50 of 26 January 1978 regulating the state of emergency, although taken under the aegis of the old constitution of 1 June 1959, remains in force - see here
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
Law 92-71 of 27 July 1992 relating to communicable diseases, amended and supplemented by Law 27-12 of 12 February 27.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
The country has been leaving under a quasi-permanent state of emergency since 2015.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
Both decrees were taken by the President of the Republic at the meeting of the National Security Council he chairs, and in the presence of his members ex officio, including the President of the Assembly of People's Representatives, the Head of Government, the Minister of Justice, the Minister of the Interior, the Minister of National Defence.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
Article 3 of the Organic Law No. 2002-11 of February 4, 2002, amending and supplementing Law 72-40 of June 1, 1972 relating to the Administrative Court states in Article 3 (new) that: "The Administrative Court has jurisdiction to rule on appeals for excess of power aimed at the annulment of acts taken in administrative matters."
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
Article 80 of the Constitution conditions the use of measures imposed by the State of Emergency to the existence of imminent peril, impeding the regular functioning of public authorities. Secondly, these measures must aim to ensure, as soon as possible, the return to regular functioning of public authorities.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
First, the Tunisian Constitution (Article 70 paragraph 2) states that the Assembly may, with the vote of three-fifth of its members, empower by law the Head of Government, for a period of no more than two months and, with a view to a specific objective, to make decrees-laws, in the area of law. At the end of this period, these decree-laws are subject to the approval of the Assembly.
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
A state of emergency has been declared by the President (see Q4). But the government has also benefited from an enabling law to intervene in the legislative field.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
Yes, by virtue of an organic Law No. 2020-19 of 12 April 2020 empowering the Head of Government to intervene in the legislative field. This power is limited to two months (duration) and intended to deal with COVID 19 (scope).
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
The work of the assembly has not been suspended. But the assembly's bureau introduced remote voting and limited the number of deputies present during the plenary and committee proceedings. The bureau itself met repeatedly remotely.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
The Constitutional Court is still not established, but the provisional body responsible for overseeing the constitutionality of laws continued to function.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
The existing legislative texts governing the state of emergency have not been amended. However, an organic law No. 2020-19 was passed on April 12, 2020, authorizing the head of government to intervene in the legislative field.
14. Was this additional legislation subject to judicial review?
Non
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
Since the revolution of 14 January 2011, Tunisia has lived a long period under the aegis of the state of emergency. The situation arising from Covid 19, grafted on and the proclamation of the state of emergency continued on the basis of Decree 78-50 of January 26, 1978.
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
The suspension of the activity of the courts was the subject of a jurisdictional conflict between the Ministry of Justice and the Higher Council of the Judiciary. An appeal before the administrative judge was submitted by a lawyer against the MSC's decision of 28 April 2020 and that of the Minister of Justice as of 3 May 2020, relating to the organization of the activity of the courts during the pandemic.
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
No national elections were planned during this period
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
No local elections were planned during this period
Tunisia
Article 80 of the Constitution states that in the event of imminent danger to the national integrity, security or independence and impeding the regular functioning of the public authorities, the President of the Republic may take the measures required by the state of emergency, after consultation with the Head of Government, the President of the Assembly of People's Representatives and after informing the President of the Constitutional Court.
The President announces these measures in a message to the people. The aim of these measures is to ensure, as soon as possible, the return to regular functioning of public authorities. During this period, the Assembly is considered to be in a permanent session. In this situation, the President cannot dissolve the Assembly and cannot be presented with a motion of censure against the Government. Thirty days after these measures came into force, and at any time thereafter, the Constitutional Court may be involved, at the request of the President of the Assembly of The People's Representatives or thirty of its members, to rule on the maintenance of the state of emergency.
Article 77 of the constitution stipulates that the President of the Republic can take the measures required by the state of emergency and proclaim them in accordance with Article 80.
The decree gives extended powers to the Minister of Interior and the governors while the State of Exception under Article 80 of the 2014 Constitution gives full power to the president.
Government decree No. 152 of March 13, 2020.
In 2020, the President of the Republic Mr Kais Saied has declared a state of emergency throughout the territory for the duration of one month from 1 January 2020.
The state of emergency has been renewed several times; the latest took effect from 29 May 2020 for a period of 6 months.
Presidential Decree No. 2020-24 of March 18, 2020 proclaiming curfew throughout the territory of the Republic - see here
Presidential Decree No. 2020-28 of March 22, 2020 limiting the movement of people and gatherings outside curfew hours.
Article 80 of the constitution stipulates that the measures taken by the Head of State of State of State of Emergency take place after consultation with the head of government, the president of the assembly of representatives of the people and after informing the president of the constitutional court. Except that the constitutional court is still not constituted, so performing constitutional formalities proves to be impossible.
This text, by its general nature, encompasses all administrative acts on the basis of the material criterion. Nevertheless, the dominant doctrine in Tunisia classifies certain acts, including the proclamation of a state of emergency as acts of government, which are not subject to recourse for excess of power.
However, all administrative acts taken later on the basis of the presidential decree will be subject to the judicial review of the administrative judge.
Thirty days after these measures come into force, the Constitutional Court may be referred by the President of the Assembly or 30 deputies to rule on the maintenance of the state of emergency.
Therefore, these measures come to an end, as soon as their reasons are terminated. Article 49 of the Constitution states that without undermining their substance, the law sets out restrictions on the rights and freedoms guaranteed by the Constitution and their exercise. These restrictions can only be established to meet the requirements of a civil and democratic state, and to safeguard the rights of others or the imperatives of public safety, national defence, public health or public morality while respecting the proportionality between these restrictions and their justifications. Judicial bodies ensure the protection of rights and freedoms against any infringement. No revision can undermine the achievements of human rights and freedoms guaranteed by this Constitution.
On the other hand, Articles 4, 5, 6, 7 and 8 of Decree 78-50 of 26 January 1978, regulating the state of emergency gives broad prerogatives to the Minister of the Interior and governors to limit and arrange civil and individual freedoms.
Indeed, Law 2020-19 of 12 April 2020 empowered the head of government to make law decrees with the aim of dealing with the spread of COVID 19. It allowed the government to issue a series of decree-laws to deal with COVID 19, which the Government did by issuing Decree-Law No. 2020-2 of 14 April 2020, suspending certain provisions of the labour code exceptionally and provisionally, Decree 2020-3 of 14 April 202, setting out exceptional and provisional social measures, Decree 2020-7 of 17 April 2020 relating to the setting of derogatory provisions concerning public officials and the operation of public institutions, state-owned enterprises and administrative services, Decree 2020-8 of 17 April 2020 relating to the suspension of proceedings and deadlines, Decree 2020-9 of 17 April 2020 relating to the sanctions for violations of curfew, traffic restriction, total containment and measures taken against persons affected or suspected of having COVID 19, Decree-Law 2020-12 of 27 April 2020, completing the Code of Criminal Procedure (Remote Trials).
A decree-law was adopted in the Council of Ministers, which introduces the use of the electronic bracelet by the criminal judge as a preventive measure replacing, in some cases, pre-trial detention, and as an alternative punishment to custodial sanctions.