Nearly two years ago, on October 1, 2023, the first president of the appeals court, Moncef Kchaou, was forced to retire. Ordinarily, this news would have gone by unnoticed. However, it threw the judiciary—the most powerful tool used by President Kais Saied to fight his adversaries—into a downward spiral which has ultimately undermined one of the most fundamental elements of the judiciary’s independence.
Ever since Moncef Kchaou retired, the position of first president of the Court of Cassation—the highest jurisdiction in the judicial hierarchy—has remained vacant. In order to understand the repercussions of this vacancy, it is necessary to examine the role of this function within the Provisional High Judicial Council and Provisional Council of the Judiciary Order.
In reality, it is not only the Court of Cassation which has suffered from such an important vacancy; other positions left unfilled have also contributed to the paralysis of the Provisional High Judicial Council, thus enabling the Executive to tighten its grip on the judiciary. A situation which immediately calls into question the independence of this institution.
Provisional High Judicial Council in the throes of uncertainty
Promulgated by President Saied on February 12, 2022, Decree 11 of 2022 defines the composition of the Provisional High Judicial Council which replaced the former dissolved council. Under this legislation, the Council supervises the affairs of the judicial, administrative and financial magistrates. It is composed of 21 magistrates divided evenly from among the Provisional Councils of the Judiciary, Financial and Administrative Orders. The same text designates the first president of the Court of Cassation as the head of the High Judicial Council.
The Council is composed of the following individuals: the first president of the Court of Cassation, who serves as chair; the general prosecutor of the Court of Cassation as vice-chair; and the general prosecutor (director of judicial services) as reporter. The president of the property court as well as three retired magistrates are members. The Council of Financial Magistrates is chaired by the president of the Court of Auditors, with the general prosecutor serving as vice-chair, the vice president of the Court of Auditors as reporter, and the longest-serving appeals chamber president as a member, in addition to three retired financial magistrates.
A brief glance at the organizational chart published on the official website of the Provisional High Judicial Council reveals an important vacancy. The authority lacks a president, a consequence of the unfilled position of first president of the Court of Cassation, who is also to serve as president of the Provisional High Judicial Council. Of the three bodies which constitute the High Council, only the Provisional Council of the Administrative Order is not paralyzed by vacancies in its composition. The Provisional Council of the Judiciary Order has only three out of seven members. The same is true for the Council of the Financial Order, whose president—also the president of the Court of Auditors—was retired two years ago and not replaced. According to a statement made public in February by the Association of Tunisian Magistrates, President Saied did not fix a date for the swearing-in ceremony as ordained by law for the appointed members of the financial council. The latter include: the first vice-president of the Court of Auditors, the general prosecutor of the same court and the most senior appeals chamber president.
Following the 2024-2025 transfer of magistrates, Judge Narjes Sellami, appointed by President Saied in February 2024 as a member of the Provisional Council of the Financial Order—and thus as a member of the Provisional High Judicial Council as the most senior appeals chamber president at the Court of Auditors—was appointed in September to the position of general prosecutor. However, she was not summoned to take oath before President Saied. This new appointment thus left a vacancy within the financial council, in addition to the already vacant position of most senior appeals chamber president within the Court of Cassation.
The designations announced by presidential decree which resulted in unfilled vacancies did not only affect the Provisional Council of the Financial Order. Designations signed by President Saied on August 29, 2023 also amputated the composition of the Provisional Council of the Judiciary Order and in turn the Provisional High Judicial Council. This was the case when Ahmed El-Hafi, who occupied the position of president of the property court, was appointed to the position of chamber president of the Court of Cassation, and when Judge Fathi Aroum, former general prosecutor of the Court of Cassation, was transferred to become first president of the Appeals Court of Bizerte.
Article 27 of Decree 11 of 2022 stipulates that “Each Provisional Judicial Council must have at least five (5) of its members present, and if this number is not reached, a new date is set for a meeting to be held within ten (10) days, and the meeting is held in the presence of at least four (4) members. The Council takes decisions with the majority of its members present. In the case that the number of votes are equal, the President’s vote is determinant.” Today, it is impossible for the judiciary and financial councils to hold meetings since both have only three members due to the numerous vacant positions in their composition.
This may appear complicated for those who do not follow closely the functioning of the Provisional High Judicial Council, for which President Saied himself drafted the law. But the situation can be summarized by a simple equation: the Council cannot fulfill its task due to the vacancies in its composition which result from the dysfunction of the judiciary and financial councils. The origin of this disfunction is the vacant position of first president of the Court of Cassation, who also fills the position of chair of the High Judicial Council and Council of the Judiciary Order, as well as the vacant position of president of the Court of Auditors who chairs the Council of the Financial Order, following their retirement. This position has not been filled since 2023. The other vacant positions within these two bodies are due to the appointment of legal magistrates to new roles, and the fact that their successors were not summoned to take oath before the President, who is required by law to observe this formality.
The Executive’s hold on the judiciary
Article 19 of the decree-law stipulates that in the case of a permanent vacancy within one of the three bodies under the Provisional High Council, the body in question is to declare this vacancy and inform the chair, who in turn informs the prime minister. In the case of the judiciary and financial councils, however, this procedure cannot be applied since both bodies currently lack a chair.
Under the same article, in the case of a permanent vacancy, the list of candidates must be submitted to the president of the Republic within 21 days from the date when the vacancy was declared. If no designation is announced by the end of this period, the president of the Republic can designate the individual he deems appropriate for the position and who fulfills the criteria laid out under the decree-law.
Interviewed by Nawaat, President of the Association of Tunisian Magistrates Anas Hmaidi affirms that a list of candidates for the vacancies within the judiciary and financial councils was proposed following the forced retirement of the first president of the Court of Auditors as well as the first prosecutor and the representative of the public prosecutor within the same court. But President Saied did not take any action following the submission of this list, nor did he summon the judge who represented the most senior president of the appeals chamber within the Court of Auditors to take oath following the appointment of Magistrate Narjes Sellami to the position of general prosecutor within the same court. This situation resulted in the paralysis of the Provisional Council of the Financial Order, whose composition remains incomplete. Anas Hmaidi notes,
The Provisional High Judicial Council struggles to fulfill its duties, because the legal composition of the judiciary and financial councils was not finalized. As a result, the judicial authority today is regulated by circulars issued by the Justice Minister, who makes illegal appointments throughout the year. It is also unacceptable that the Provisional Council of the Financial Order remains frozen owing to the will of the Executive, especially because the Court of Auditors is the jurisdiction in charge of overseeing public finances. Significantly, the country experienced a major electoral failure without an independent financial authority. The Executive is responsible for this deliberate paralysis, since the decisions to appoint and swear in are its prerogatives. Instead of filling the vacant positions within the Provisional High Judicial Council, the Executive has usurped its prerogatives to appoint, promote, and transfer magistrates-transferring magistrates arbitrarily and reserving promotions for its own supporters. This situation foreshadows the decline and collapse of the judiciary.
In a statement published in September 2023, the Association of Tunisian Magistrates denounced the Executive’s violation of the statutes defining the Provisional High Judicial Council. In particular, it criticized its appointment of the Justice Ministry’s inspector general, as well as the first president and general prosecutor of the Court of Appeals of Tunis—high offices which, as per Decree 11 of 2022, are to be filled by a call for candidates proposed by the Provisional Council of the Judiciary Order, as stipulated by Article 19 of the decree-law.
Decree 11 of 2022 which was promulgated by President Saied stipulates that when the Council examines the professional background of magistrates, it must take into consideration “the principles of equal opportunity, transparency, competency, impartiality and independence.” The High Council—through the three judicial councils that constitute it—supervises judicial affairs. Within its particular area of jurisdiction, each council identifies the needs of the courts and vacant positions within the judiciary institution, and studies requests for transfers and promotions. Furthermore, the High Judicial Council announces “the judicial transfer once per year, no later than the end of the month of July, and can, if necessary, make an exceptional transfer during the course of the judicial year.” The High Judicial Council is also charged with designating four members of the Constitutional Court. However, the current status quo renders the effective establishment of the Constitutional Court a difficult task.
The Provisional High Judicial Council constitutes an important gauge of the judiciary’s independence. However, the deliberate vacancies within its composition seriously compromise this independence, especially since the Executive—represented by the Justice Ministry and the Office of the Presidency—has made no response to requests by professional bodies to fill the vacant positions. These vicissitudes may seem far from scope of public concern, but clearly explain how the government has subjugated the Justice by reducing its role to executing the will of those in power, while it pronounces its rulings in the name of the people.
iThere are no comments
Add yours