Government Hasn’t Carried Out Court Order
July 9, 2014
All the official talk of reforming Tunisia’s judiciary rings hollow so long as the government doesn’t carry out the administrative court decision calling the judges’ summary dismissal improper and void.
Eric Goldstein, deputy Middle East and North Africa director

(Tunis) – The Tunisian government should reinstate  judges summarily dismissed by the previous justice minister on May 28, 2012. An administrative court has ruled on 30 of the 75 cases since December 2013, ordering their reinstatement, but the government has not acted.

On March 30, 2014, the newly appointed justice minister, Hafedh Ben Salah, said in a TV interview that he will carry out the administrative court’s decisions and will not appeal them. He also said that after reinstating the judges, he will transfer their files to the newly created Temporary Authority for the Supervision of the Judiciary, which will decide if disciplinary measures are warranted against any of them. However, three months later, authorities have not reinstated a single one of the judges.

“All the official talk of reforming Tunisia’s judiciary rings hollow so long as the government doesn’t carry out the administrative court decision calling the judges’ summary dismissal improper and void,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch.

The justice minister who fired the judges, Noureddine Bhiri, cited a fight against corruption. Many of the judges individually appealed to Tunisia’s administrative court, which has ruled consistently in the cases that the executive branch acted improperly and exceeded its authority by dismissing the judges summarily. The judges have been without their posts, salaries, and medical coverage for over two years.

Fifteen judges told Human Rights Watch that they learned of their dismissal when their superiors phoned them on May 28, 2012. All said they were never informed of the grounds for their dismissal or the evidence against them.  The ministry did not provide them with a hearing before the decision, access to their discipline files, or a means of appeal, they said.

In December 2012, Human Rights Watch, acting with the express written permission of 10 of the dismissed judges, wrote to the justice minister requesting access to their files. Human Right Watch wanted   to check their allegations that the ministry denied them an opportunity to defend themselves, dismissed them on spurious grounds, and continued to deny them access to the allegedly incriminating evidence. The ministry refused the request. 

The administrative court, in its ruling on those cases, had found that “the administration has made the contested decision without enabling the judge to enjoy the basic guarantees of fair trial set forth in the law.”

If Tunisian authorities take any disciplinary measures against these or other judges, they should ensure compliance with Tunisia’s 2014 constitution and international standards, Human Rights Watch said. Article 100 states that, “The judiciary is an independent authority that ensures the prevalence of justice, the supremacy of the Constitution, the sovereignty of law, and the protection of rights and freedoms.”

Article 104 states that “No judge may be transferred without his consent, no judge may be dismissed, and no judge may be suspended, revoked, or subjected to a disciplinary punishment except in such cases and in accordance with the guarantees provided for by the law and by virtue of a justified decision issued by the Supreme Judicial Council.”

On April 24, the National Constituent Assembly voted on the law creating the Temporary Authority for the Supervision of the Judiciary. This institution replaces the High Judicial Council, which played a pivotal role in ensuring executive branch hegemony over the judiciary under ousted President Zine El Abidine Ben Ali.

The law establishing the Temporary Authority puts it in charge of disciplinary measures against judges, consistent with the applicable legislation. Under the law, judges must be notified of any disciplinary procedures at least 15 days before the hearing on the matter, and have the right to examine all the documents in the disciplinary file,  introduce exculpatory information and documents, and  be assisted by a lawyer or any other person of their choice. 

General Comment number 32 of the United Nations Human Rights Committee, the experts who provide the definitive interpretation of the International Covenant on Civil and Political Rights, states that:

Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary.

According to the Principles and Guidelines on the Right to a Fair trial and Legal Assistance in Africa, adopted by the African Commission on Human and Peoples’ Rights in 2005, “Judicial officials facing disciplinary, suspension or removal proceedings shall be entitled to guarantees of a fair hearing including the right to be represented by a legal representative of their choice and to an independent review of decisions of disciplinary, suspension or removal proceedings.”
 

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