The judiciary is still reeling one year after a presidential decree dismissed 57 judges on June 1, 2022. At the time, president Kais Saied evoked « purification » of the justice as grounds to justify his decision. The stage thus set, the president proceeded to accuse the judges in question of obstructing investigations in terrorism-related cases, financial and moral corruption, adultery and participation in parties involving alcohol.
Today, these judges have still not resumed their functions. Despite the Administrative Court’s decision on August 10, 2022 to overturn the dismissal in 49 out of 57 cases, magistrates are still facing the ongoing prosecutions against them. These proceedings carried out by the Ministry of Justice have solidified the executive power’s hold on the judiciary. The instrumentalization of public prosecutors and investigative judges has undermined the independence of the judiciary, which the Ministry is now using to intimidate and neutralize its adversaries. This was the argument presented Ayachi Hammami, lawyer and spokesman of the Defence Committee for the Dismissed Judges, who spoke during an international seminar on the independence of the justice held on May 20.
The seminar was organized by the Civil Committee for the Independence of Justice in partnership with EuroMed Rights, Lawyers without Borders, the International Commission of Jurists, the International Organization Against Torture and Human Rights Watch.
The president’s dismissal of 57 judges marked « a turning point in the unraveling of judiciary », Anas Hmedi, president of the Association of Tunisian Judges, told Nawaat. Hmedi added, « It has become apparent that one year after this purge, the justice purification and reform project that the president promoted was only a pretext used to destroy the justice system ».
Governing the country one presidential decree at a time, Saied has extended his power over the judiciary. This control began with the decision to suspend the High Judicial Council (CSM) that was announced on February 6, 2022.
Systematic dismantling of the Justice
On February 12, 2022, the president issued decree-law 2022-11 establishing a new CSM, some of whose members were appointed by Saied himself. The text gave Saied the power to intervene in the designation, career evolution and dismissal of judges, and furthermore bans the right to strike as well as « any organized collective action which might upset or inhibit the regular functioning of the courts ».
The president took a step further with decree-law 2022-35 of June 1, 2022. This text enables Saied to dismiss—expediently and without disciplinary proceedings—judicial officials on the basis of reports submitted by so-called « competent » authorities, although the latter are not clearly identified. Shortly thereafter, 57 judges were dismissed from their posts.
With this dismissal, the president sent a strong message to the judicial body. Faouzi Maalaoui, lawyer and member of the Defence Committee for the Dismissed Judges, highlighted this point in an interview with Nawaat. Threatened by the possibility of disciplinary proceedings, suspension or destitution without any guarantee of a fair trial, judges have been working under enormous pressure, Maalaoui explained.
Indeed, decree-law 2022-35 lays the ground for abusive interpretations. Judges can be dismissed on the basis of vaguely defined imperatives like « threat to public safety » and « the country’s best interests » with the presumed objective to « compromise the reputation of the judiciary, its independence or its proper functioning ».
For decisions relating to a judge’s dismissal, there is no immediate judicial remedy. An appeal becomes possible only after a final criminal judgement is made on the alleged facts concerning the judge in question. « A definitive criminal ruling could take a lot of time. As a result, the arbitrary decision of dismissal cannot be overturned until the end of a veritable judicial marathon », explains Maalaoui. A judge’s dismissal is automatically followed by his or her prosecution.
With this judicial arsenal in place, the president has established a climate of terror among judicial officials. « These decree-laws hang like a sword of Damocles over them. This fear is all the more legitimate following the arbitrary disciplinary measures carried out against some of them. They know that no one is safe », explains Maalaoui. He adds:
« These concerns persist owing to the opacity of the work carried out by the General Inspection Commission within the Ministry of Justice, which has become an instrument of political power. Charges against a judge only require a simple report from the Ministry of Justice or head of government. In reality, this report is based on Facebook publications and even police investigations ».
Judges also fear possible retaliation from the executive power during the shuffling of positions that takes place within the judicial body each year, says Hmedi. Afraid and vulnerable, some judges have taken refuge under the executive’s wing, prosecuting and imprisoning those who stand up against the president’s transgressions.
Saied’s political weapon
Over the past year, politicians, journalists and activists have been prosecuted for various charges based on statements in the media and even on Facebook. « As a result, some judges have come under Saied’s control; he uses them to monitor political life and silence his adversaries » Hmedi says.
Hmedi characterizes a judicial body ill at ease. In order to avoid becoming complicit with the executive power, some have even provided medical certificates to avoid going in to work to examine certain cases. Also presenting during the seminar, lawyer and member of the Defence Committee for Imprisoned Political Leaders Dalila Msadek described how judges responsible for the cases of prosecuted politicians feel that they are in an impossible situation: « They tell us that it’s beyond them, that they have no other choice ».
Fearing retaliation from the executive, judges « don’t know what ruling they to make, nor whether their decision might offend the president and incite his wrath », says Maalaoui. Judges, whose duty it is to guarantee rights and freedoms, « no longer apply general, objective laws, but instead make decisions based on the accused person’s situation and the degree of pressure weighing upon them. The accused may fall upon an independent judge, or a judge who is working in the service of the government. It’s a question of luck », Hmedi explains.
Some judges, Hmedi continues, have managed to resist the pressure applied by the executive. « With time, however, if the situation continues to deteriorate, I’m not sure if all of them will keep resisting », he warns. The body of judges has become divided into those who rally in support of the Association of Tunisian Judges which opposes Saied’s machinations, and the Union of Tunisian Judges which has remained absent from this battle.
Invited to participate in the seminar on May 20, the Union never responded. The same was true for the National Order of Tunisian Lawyers, another group whose interests intersect with judicial independence as Ouajeh Jabeur, program director at EuroMed Rights, pointed out to Nawaat. Such division, Anas Hmedi argues, is to Saied’s benefit: « Since the country’s independence, the judicial branch has been under pressure from the government and there has never been a real political will to reform it. Under Saied, however, this branch of government is facing challenges far greater than what it endured during the Ben Ali era », he says.
By taking hold of the judiciary, the president has extinguished the possibility of any reform process. « He has used the personal transgressions of certain judges as a pretext to destroy the entire judicial apparatus » Maalaoui asserts.
For Hmedi, this endeavor of destruction that the president has pursued since July 25 « might have been acceptable had it been accompanied by real reforms. Instead, it has merely enabled him to solidify his authority over the judiciary, much as he did with the legislative branch » . Under the Constitution of 2022, the judiciary is no longer « a power » but « a function ». With the legal arsenal in place to govern it, the president has finally buried the sought-after reforms so vital to guaranteeing an independent justice.