Although the administrative court has recognised the independence of the provisional body within Tunisia’s justice sector – a body which would replace the CMS (Supreme Council of Magistrates) – the bill proposing its creation was, in the end, not accepted due to disagreement within the Constituent Assembly. Accordingly, the judicial, administrative, financial and constitutional commissions will all have to review the text of the proposed bill. The refusal to accept the independent status of this provisional body, a status which even the Supreme Council of Magistrates enjoys, represents a real setback in the move towards a completely independent judiciary.

Yesterday, at the ANC (National Constituent Assembly), the absolute majority of 109 required for the passing of any organic law was not achieved. With only 101 votes in favour, there is a risk that the project will now fall through.

Difference of opinion between Sabhi Atig and Fadhel Moussa over the proposed independence of the provisional body within Tunisia’s justice sector

Ennahda thwarts plans to create an independent body

The same fine words about an independent judiciary have been bandied around by all the main parties, whether for or against Ben Ali. The issue at hand, however, is how to implement this independence which is an absolute prerequisite for kickstarting the process towards the Rule of Law that has been stalled for the last 17 months. The issues of corruption and the martyrs of the revolution, for example, have been overlooked due to the false debates surrounding questions of identity and attacks on sacred values.

The real aims of the revolution have become buried within the non-stop byzantine debates. Meantime, the Association of Tunisian Magistrates, fully aware of how crucial this issue is for our country, has never given up the fight. In the very first months following the revolution, the replacement of the 16 judges making up the Supreme Council of Magistrates was an urgent priority. For every man of law, the necessity to clean up this sector and ensure the separation of certain powers was considered an essential step in finally doing away with the defunct regime of Ben Ali, who himself was once head of the CSM.

Origins of the problem can be found in the law on public authorities

The blocking of the vote for the independence of this provisional body had already been provided for in a previous bill – the Constituent Law 2011-6 of December 16 2011 relating to the provisional organisation of public authorities. Indeed, chapter 5 relating to judicial powers already referred to this body, in article 22, as being a “provisional representative body”.

On Tuesday 31 July, the Ennahda representative Habib Khedr explicitly requested that this body be referred to as “representative” rather than “independent”. As such, one can infer that the Ennahda parliamentary bloc is pursuing, with some relentlessness, a plan which accords with the vision that they had already very clearly provided for in the law relating to public authorities.

It is worth remembering that article 22 was very clear that this bill had to do with the creation of a “judicial power which exercises its prerogatives with complete independence”. As such, this is not about granting independence to a provisional body but rendering judicial power independent, meaning that the exact intentions of this bill remain somewhat vague.

In December 2011, the commission tasked with the restructuring of public authorities, presided over by the same Habib Khedr, managed to get this wording passed after continually strong-arming the minority opposition parties.

Ennahda bent on creating confusion around the independence of the body

On Wednesday afternoon of August 1, the various parliamentary groupings got together in order to “reach a consensus” on this debate. Sahbi Atig. (Ennahda) declared that his party had no problem with granting this body independent status.

“This disagreement does not centre on the term “independent”. We are more concerned about administrative and financial independence! One only has to look at some examples from other democratic countries. The issue is not whether we use such terms as “independent” or “provisional”… that’s not the problem, this is a futile debate. I am the President of the parliamentary bloc of Ennahda and I say let’s call this body “independent”, but the issues surrounding their administrative and financial independence remain! This has nothing to do with the independence of the judiciary, no! “

Jamal Bouajaj (Ennahda) raised the tension of the debate when he began directly to attack the members of the Association of Magistrates, just as his fellow party member Habib Khedr had done on 31 July.

“They (the judges in the Association) are behaving in an aggressive manner, in order to serve the interests of their own profession. If they continue to be present at the discussion of certain laws, they may well influence the outcome of this debate, especially as we’ve already seen some of those invited giving out leaflets and whispering in the ears of other deputies, which has the potential to interfere with how our meetings are conducted.”

Jamal Bouajaj would also go on to attack the live broadcasting of these plenary sessions since, in his opinion, this “gets in the way of work”. He proposed that one just provide a summary of the main points of the meeting. He was also critical of the way in which some deputies made use of points of order (an intervention during the discussion of a bill).

Fadhel Moussa clears up any misunderstanding and responds to the Ennahda rebels

Fadhel Moussa, President of the commission for judicial, administrative, financial and constitutional jurisdiction, did well to defuse the issue by clearing up some misunderstandings.

“ I want to straighten out one central misunderstanding: this body is, in reality, a Supreme Magistrates’ Council. The adjective “provisional” in no way diminishes its role as a Supreme Magistrates’ Council as the wording of the law itself makes clear (“The aforementioned body will be charged with overseeing judicial justice and will take the place of the Supreme Magistrates’ Council.” Article 22, Chapter 5 of the Organisation of Public Authorities Law). “

As for the main point of disagreement, Moussa would refer to the institutions, notably the administrative court, which have already recognised the financial and administrative independence of this body. Thus, to a certain extent, the debate centres upon how one understands the function and character of the proposed body.

According to Fadhel Moussa, many have seriously misread the independence enjoyed even by the Supreme Magistrates’ Institute.

To conclude, Fadhel Moussa’s commission will have to review its text and renegotiate the terms of the provisional body’s independence within the justice sector. Meanwhile, the Association of Tunisian Magistrates will continue to denounce the Justice Minister’s iron grip on judicial power, just as they will continue to appoint and dismiss judges with nothing more to rely upon than rough notes. This situation, which is threatening ever more the gains of the Tunisian revolution, is above all causing considerable harm to the most important case – that of the martyrs of the revolution.

Following the latest verdicts, the anger of the families who are demanding that the military tribunal take leave of this affair shows just how far off we are from delivering the justice expected by these people. Furthermore, the Corruptions Perceptions Index (IPC) in Tunisia, has gone from 4.3/10 to 3.8/10 in 2011, something which represents a real danger when the conditions for justice are already poor. However, the independence of the judiciary and its attendant apparatus, in particular this body, is a demand to which Ennahda are persistently refusing to cede.

The real question now is what strategy the commission and other parliamentary groupings are going to take in order to find a way past what is now not just a difference of opinion but of a political vision, on the part of the majority party, that is becoming more and more hostile to basic freedoms.

Translation by Cristopher Barrie from the original french article.