Does new decree mark the end of judicial independence in Tunisia?

Critics say President Saied’s seizure of judiciary powers erodes one of the remaining pillars of Tunisia’s democracy.

Tunisia's President Kais Saied.
Decree 11 allows the president to control appointments, promotions, transfers and postings of judges, and further bans the judiciary from going on strike [John Thys/AFP]

Tunis, Tunisia – President Kais Saied’s new decree establishing a temporary judicial authority to replace the dissolved Supreme Judicial Council continues to draw widespread criticism in Tunisia in a setback for the rule of law.

In a statement released on Monday, the High Judicial Council (HJC) fully rejected the presidential decree, considering its provisions an “attack on the independence of the judiciary” and denouncing “a violation of the fundamental rights of magistrates”.

The Tunisian Association of Young Judges called the provisional judicial council “simply a lawless” structure that is not based on any legal or constitutional text, and reiterated its position on the illegitimacy of the decree condemning a “blatant” violation of the constitution in the chapters concerning the judiciary and rights and freedoms.

The decree allows the president to control appointments, promotions, transfers and postings of judges, and further bans the judiciary from going on strike.

“The president either directly appoints or influences the appointment of all the members of the temporary judicial council, which facilitates the subordination of the judiciary and individual judges to the president,” Said Benarbia, MENA regional director at the International Commission of Jurists (ICJ), told Al Jazeera.

He stressed that, under the decree, Saied has wide powers to influence the management of the career of judges, and “most worryingly” the power to request the removal of judges and even to act, in some instances, as a disciplinary body in charge of removals.

“It’s clear now that the executive has a lot more authority over the courts and judges, including disciplinary proceedings against them,” Zaid al-Ali, an independent scholar who focuses on constitutional reforms in the Arab region, told Al Jazeera.

He suggested the transfer or posting of judges to different, far locations is an issue of particular concern that magistrates may take into consideration in their future handling of cases, which the executive could potentially use as a retaliatory disciplinary measure if a judge’s decision is not in line with the president’s.

“It’s possible that from now many judges, before issuing rulings, will carefully consider what implications decisions that the executive doesn’t like might have, and whether or not they could lead to swift actions against them,” said al-Ali, who also works at the International Institute for Democracy & Electoral Assistance (IDEA) as a senior adviser on constitution-building in the Arab region.

‘Billions and billions’

Saied earlier this month called the Supreme Judicial Council a “thing of the past”, and accused council members of taking “billions” in bribes.

“In this council, positions and appointments are sold and made according to affiliations,” said Saied. “You cannot imagine the money that certain judges have been able to receive, billions and billions.”

The newly issued decree has been met with wide opposition from various sectors of Tunisian society.

Benarbia remarked if the president can suspend the parliament and dissolve the HJC by decree, he would not hesitate to use decrees to dissolve political parties, civil society organisations, and independent media groups.

Hours after the order was published on Sunday, more than 2,000 protesters gathered in central Tunis as part of a rally organised by the moderate Islamist Ennahdha – the biggest party in the now-suspended parliament – and the Citizens Against the Coup collective.

Several lawyers and judges demonstrated last week and shut down court premises with a two-day strike organised by the Association of Tunisian Judges (AMT) after President Kais Saied announced his decision to disband the Judicial Council.

Forty-five civil society groups declared their rejection of “any interference by the executive authority in the judiciary’s work”.

A couple of days before the ruling being made public, a group of deans and professors of Tunisian law faculties issued a petition against Saied’s intended dissolution of the HJC.

“Many Tunisians are broadly concerned about the marked increase in executive power, which means that the decision-making is left in the hands of a very small number of people, leaving no real ability to appeal or counter any policy in future,” al-Ali noted.

In a more recent show of resistance, the Union of Administrative Magistrates of Tunisia (UMA) called on Tunisian judges not to recognise the temporary council and to boycott its work. It is also said to be ready to engage “in all forms of struggle” to defend the judiciary’s independence and confront any attacks against the judicial authority.

The UMA further announced its intention to challenge Saied’s decree in front of national courts and international bodies, and called for a general strike on Thursday, defying the ban on strikes included in the new decree.

In an emergency meeting following the move to dissolve the judicial body, the AMT called on the head of state to reverse his decision and reinstate the body. Members of the group also pledged to protect the legal institution and the country’s constitution.

The judges association also took the matter to the United Nations special rapporteur on the independence of judges and lawyers as well as to the International Association of Judges. It has also initiated a collective action across all the courts aimed at stating firm refusal of the president’s decree and the establishment of the provisional judicial council.

“We are calling on all judges to mobilise and express their non-submission to the executive power,” AMT’s Vice President Aicha Ben Belhassen told Al Jazeera. “It’s not possible to have the judiciary power regulated by a text that is unconstitutional and has no legal basis.”

She denounced the executive interference in the functioning of the judiciary and the removal of the guarantees and mechanisms of judicial independence, which are safeguarded by the Tunisian constitution and international norms.

The HJC, for its part, has kept defiant, insisting it will maintain its current composition, deeming the creation of an alternative body “unlawful”.

“The professional associations of judges, the High Judicial Council and individual judges are resisting the president’s attacks against the judiciary,” Benarbiar said.

“The executive should stop these attacks and refrain from any actions or disciplinary proceedings that would limit the rights of judges to freedom of expression and association, and to challenge the president’s attempts to control the judiciary.”

The possibility the resistance from within the judiciary may have any effect in face of the controversial decree, as al-Ali pointed out, will mainly depend on whether a sufficient number of judges participate in striking actions and refuse to exercise their functions, which would then prevent courts from operating.

“We will continue to resist and fight to get the fundamental guarantees we should have in a democratic system that upholds the rule of law and separation of powers,” Ben Belhassen said.

Absolute power

The new presidential order runs counter to the provisions of the 2014 Tunisian Constitution, international law and standards.

Set up in 2016 as a constitutional institution to guarantee the proper functioning and independence of justice, the HJC was welcomed as a major advance in the consolidation of the rule of law, separation of powers, and the independence of the judiciary in Tunisia.

Saied’s latest step to tighten his grip on power effectively grants him extra powers to control the country’s top judicial body, meaning exclusive authority over the justice system as a whole.

The judicial organisation was one of the last remaining institutions in the country to stay outside the president’s hold after he suspended parliament and sacked the government on July 25, 2021, and formally gave himself the power to rule by decree last September. Having previously assumed legislative and executive authority, and now the judiciary’s, Saied practically holds absolute power over all branches of state.

Since last July, the Tunisian president has taken gradual steps in the lead up to decree number 11 to dismantle one of the few remaining institutional checks on his power by taking control of the judicial apparatus.

The judiciary, the HJC in particular, has come under mounting scrutiny and intimidation from the head of state in the past few months as Saied has repeatedly accused the council of being corrupt and of failing to resolve high-profile cases, including the political assassination of two left-wing leaders Chokri Belaid and Mohamed Brahimi in 2013.

Source: Al Jazeera