The Judicial System in Tunisia: The Diagnosis of a Crisis

Judges in Tunisia protest the dismissal of 57 judges
Judges in Tunisia protest the dismissal of 57 judges by President Kais Saied (c) Anadoluimages - Yassine Gaidi

Since Tunisia’s independence, the Tunisian judiciary has faced numerous challenges, the most significant of which has been the direct and indirect pressure the Executive Branch sought to exert on it. Such pressure has been applied through the use of the Supreme Court and the State Security Court, the military trials for civilians, and the trials and sentencing of individuals for their political views.

Following the democratic transition in 2011 and the enactment of a new constitution in 2014, priority was given to reinstating the judiciary as a cornerstone in the building of a democratic state that upholds fundamental rights and freedoms. This was done through the establishment of a Supreme Judicial Council, most of its members are elected, and entrusted by the Constitution to ensure the sound functioning of the judiciary and its independence. The process of consolidating the judiciary involved the active participation of all relevant parties with a stake in judicial matters as well as various segments of civil society.

Despite these seemingly positive developments, the Tunisian judicial system has continued to suffer from a number of shortcomings that impacted its effectiveness. One factor that entrenched an unfavorable public perception of the judiciary was the slowness with which it adjudicated cases related to bribery, corruption, and electoral offenses. This was also compounded by the disruption in the transitional justice process and the way the cases of assassinations that targeted certain politicians were handled. The intricacies of the legal proceedings, the shortage of judges, the deterioration of court infrastructure, and the absence of modern tools for judicial administration have all reinforced this negative public perception of the judiciary.

In this context, several questions arise: Should the desired reform first start with an extensive evaluation of Tunisia's justice system to be followed by the formulation of a comprehensive national strategy for judicial reform? Or should the emphasis be placed primarily on rectifying specific shortcomings? What reforms are needed and what measures can be taken to ensure that these reforms do not become a pretext for placing the judiciary under the executive branch?

To answer these and other questions, this paper will carry out an examination of the constitutional and legislative framework governing the judicial system as well as an assessment of the reforms already made, the nature of reforms still needed, and the conditions required to achieve them.

1. The Constitutional and Legislative Framework of the Judicial System: An Evaluation

The 1959 Constitution dedicated all of Chapter Five to the "Judicial Authority." It explicitly emphasized the independence of judges in their duties and granted the Supreme Judicial Council the power to manage the professional path of judges. However, it also set up an exceptional court, the "Supreme Court," which was vested with jurisdiction over cases of high treason and included a government member representing the executive branch.

The 2014 Constitution also dedicated Chapter Five, made of 23 articles, to the "Judicial Authority". This Chapter covered the judiciary, and the administrative and financial judiciary, as well as the Constitutional Court, an independent judicial body, and outlined the role of the Supreme Judicial Council to oversee these three judicial bodies. The Constitution stipulates that the “judicial authority” is "independent” and that judges are independent with the law as the sole authority over how they discharge their functions. It also states that the Supreme Judicial Council assures the independence of the judiciary and its sound functioning and is responsible for the preparation of an annual report on the work of judges in accordance with the law. Additionally, the transfer of judges and any disciplinary measures against them must adhere to procedures prescribed by law. According to the Constitution, the Council expresses its views on proposed legislation related to the organization and administration of justice that must be presented to it. Article 109 of the 2014 Constitution explicitly prohibits any interference in the functioning of the judiciary. Furthermore, Article 49 states that the judicial authorities ensure that the rights and freedoms enshrined in the Constitution are protected.

Against the backdrop of these constitutional provisions and the subsequent functional and structural shifts impacting the judiciary and its judges, several questions arise: was the 2014 Constitution, with its fervent commitment to establishing an independent judiciary, a reliable guardian of judicial autonomy in the aftermath of a dictatorship that severely undermined the judiciary and instrumentalize it? Was this Constitution able to fix the long-standing issues and problems associated with the judiciary over decades? Has the Supreme Judicial Council, after almost six years, succeeded in devising a comprehensive strategy for the reform of the judicial system? Finally, has the Tunisian citizen's perception of the judiciary changed in light of these developments?

Indeed, no component of the judicial system, including the Ministry of Justice, judges, lawyers, experts, notaries, or paralegals, initiated a comprehensive evaluation of the justice system as a whole between 2011 and 2021, nor an assessment of the performance of the Supreme Judicial Council as the country’s paramount judicial body. However, certain factual and legal indicators showed the shortcomings in the Council's performance on various issues, primarily its failure to devise a strategy for the reform of the judiciary or propose related draft laws, for instance, regarding the criteria for how to prepare reports on judicial professional mobility. This contributed to creating an environment of mistrust and lack of transparency, particularly during appointments or transfers of judges to judicial positions. The Ministry of Justice has also failed to address issues – both logistical and administrative – that have accumulated over decades and impeded the judiciary from fully and adequately carrying out its duties.

Indeed, several legal and practical factors have hindered the sound functioning of the Supreme Judicial Council. For instance, the 1976 Law on Judges remained in force even after the enactment of the 2014 Constitution and despite urgent calls from judicial institutions for it to be replaced (not amended) as it no longer aligns with the fundamental principles necessary to safeguard judicial independence and the rights of judges. This was particularly so given changes in court compositions, the diversification of legal specializations, the creation of new positions, and the implementation of multiple transfers for work-related reasons without a legal basis or adequate safeguards to prevent their use as covert disciplinary actions. Of equal significance is the direct structural subordination of judges within the Public Prosecution to the Minister of Justice, particularly concerning prosecutorial decisions, which profoundly impacts judicial independence.

Notably, this constitutional period witnessed the entry into force of the Court of Auditors Law as well as the participation of judges’ representative bodies in the preparation of the drafts of the Law on Judges and the Code of Administrative Justice. However, no concrete measures were taken to advance them.

Following 25 July 2021, the judicial landscape underwent a radical transformation marked by the dissolution of the Supreme Judicial Council and the Interim Council for Monitoring the Constitutionality of Laws. Moreover, President Kais Saied issued a series of decrees and orders to reestablish and reform the composition of the Supreme Judicial Council and re-organize the work of judges and courts, dismissed 57 judges, filed criminal proceedings against them, and refused to reinstate them although they obtained rulings suspending their dismissals.

Presidential Order 117 of 2021, on exceptional measures, marked a significant shift in the trajectory of the Tunisian justice system. It conferred on the president of the republic the sole authority to manage and regulate the justice system. He is now empowered to issue laws that govern the organization of courts and review litigation procedures.

In the July 2022 Constitution, Chapter Four, made up of eight sections, covers the "Judicial Function," mirroring the "legislative function” and “executive function" terms used to describe the other two branches. While Chapter Five of the Constitution was used to cover the Constitutional Court.

Presidential Decree No. 11 of 2022, on the establishment of the Interim Supreme Judicial Council, issued on 12 February 2022, replaced Law No. 34 of 2016 on the organization of the Supreme Judicial Council and granted the president of the republic power to appoint the Council’s members. Although the decree maintained the Council's prerogative to suggest necessary reforms to ensure the sound functioning of the judiciary and safeguard its independence, it removed the obligation to consult with it on draft laws related to the organization and administration of justice. The Council's input no longer carries the same weight in the preparation of the judges' movement report; the decree empowers the president of the republic, either automatically or upon request, to review judicial appointments or object to transfers.

Additional measures were introduced to prohibit judges from participating in strikes or engaging in any collective actions that might disrupt the normal working of the judiciary. This explicitly subjects judges to the threat of administrative penalties, including possible dismissal, as well as to criminal prosecutions that could result in criminal convictions against them.

On 1 June 2022, the President issued Decree No. 35 of 2022, to amend and supplement Decree No. 11 of 2022. The new decree states that in case a judge is involved in a threat to public order and security or the paramount interests of the nation, and based on a reasoned report from the relevant authorities, the president of the republic can dismiss the concerned judge. According to the decree, this decision is not subject to appeal until a final criminal judgment is issued for the alleged actions attributed to the judge. On 1 June 2022, President Saied gave himself the unilateral power to dismiss judges and public prosecutors through Presidential Order No. 35 of 2022 and, on the same day, issued Presidential Order No. 516 of 2022 to dismiss 57 judges and public prosecutors on allegations of financial and "moral" corruption and obstructing investigations.

In addition, the legislative framework governing the justice system suffers from numerous deficiencies and intricacies related to the absence or outdated nature of the legal framework regulating the judicial profession. Examples include the Law for Judges, which has been in existence since 1967 and requires updating; the absence of a statute for the judiciary’s court assistants and clerks (in contrast to those of administrative courts); the introduction of the Law on Lawyers back in 2011; the enactment of the law governing the profession of judicial experts in 1993; the law regarding notaries from 1994; and the establishment of the law governing bailiffs in 2018.

In short, the outdated legal provisions governing the judicial system (and their non-existence in some instances) have harmed the system's capacity to improve its performance. Added to this was the dissolution of the temporary body responsible for overseeing the constitutionality of draft laws (by Presidential Order No. 117), which was – despite its shortcomings - considered institutionally a key body to ensure minimum oversight.

2. An Assessment of the Reforms So Far

After the adoption of the 2014 Constitution, several reform initiatives were made to ensure compatibility with the new Constitution. These included the revision of legal frameworks governing the judiciary, such as the drafting of the Law on Judges and the Code of Administrative Justice or the Law of the Court of Auditors, and the review of other legal codes by interdisciplinary committees comprised of judges, lawyers, and university professors. These committees played a crucial role in formulating the draft Penal Code and the draft Code of Criminal Procedure, both of which adopted a progressive human rights approach, by introducing substantial changes to the penal system and incorporating reconciliation as a means of adjudicating public cases.

These measures were undertaken as part of a broader evaluation of Tunisia's legislative framework. Unfortunately, they did not yield substantial results due to a lack of critical decisions to conclude this legislative process. In addition, these endeavors were not incorporated into a comprehensive and clearly outlined reform strategy.

In practice, a "Judicial Reform Program" was jointly developed by the Tunisian government and the European Union. A national consultation on judicial system reform in Tunisia was also conducted in cooperation with the United Nations Development Programme and the Office of the High Commissioner for Human Rights in December 2013, though its impact remained limited.

The Ministry of Justice also started a program for digital justice and open governance and established official websites for the Ministry and the Court of Cassation. Additionally, efforts have begun to implement remote communication programs to facilitate the follow-up of court cases and prepare a digital platform for the administrative court; and some trials were conducted remotely, particularly during the Covid-19 pandemic. The ratification of Law No. 41 of 2019 on the Court of Auditors – a vital body overseeing the use of public funds – exercises its functions in complete independence, and enjoys self-management, administrative and financial autonomy.

Despite the importance of these reform programs and projects, they have yet to yield the transformative impact on the judicial system expected by stakeholders, particularly litigants, who continue to face significant challenges in accessing these services with ease and at an affordable cost.

The judiciary continues to suffer from a number of challenges that have plagued it for years. Despite the democratic transition in 2011 and the drafting of a new constitution in 2014, various stakeholders, particularly the Supreme Judicial Council, failed to develop a comprehensive strategy for assessing and reforming the judicial system. Nonetheless, it is worth noting some accomplishments, including the entry into force of the Court of Auditors, and the preparation of the draft law on Judges and the Code of Administrative Justice. In addition, mixed scientific committees made up of judges, lawyers, and university professors have been instrumental in reviewing a number of laws, including preparing a draft penal code.

However, the judicial landscape underwent significant transformations after 25 July 2021. This period witnessed the dissolution of the Supreme Judicial Council and the Interim Council responsible for overseeing the constitutionality of laws. Subsequently, the president of the republic issued a series of orders and decrees that led to the reconstitution of the Supreme Judicial Council and the reorganization of judicial proceedings. These extraordinary measures raised fears among members of the “judicial function” with a severe impact on their independence and their ability to uphold rights and freedoms.

The views represented in this paper are those of the author(s) and do not necessarily reflect the views of the Arab Reform Initiative, its staff, or its board.