(Tunis) – Tunisia’s new law creating a body to oversee the functioning of the judicial system does not guarantee the body’s full independence from the executive, Human Rights Watch said today. Tunisian authorities should propose amendments to change provisions that could allow continued political interference in the courts.
Parliament approved the creation of the constitutionally mandated Supreme Judicial Council (SJC), whose mandate will include judicial appointments, discipline, and career progression of judges, on May 15, 2015.
“The new law and the judicial oversight body it creates are an improvement over the situation under ex-President Ben Ali, when the courts too often danced to the government’s tune,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. “But given that history, Tunisia needs stronger safeguards to guarantee the judicial independence that Tunisians have long been waiting for.”
A key concern with the new law is the composition of the Council. Only a minority of its 45 members will be judges elected by their peers. Other members will be appointed by the executive or by the legal profession, giving the executive a significant influence over its functioning. It also includes as an ex officio member the general prosecutor of military justice, who should not exercise authority over civilian courts.
The new law is not yet in force. Thirty members of parliament challenged it on May 22 before the Constitutional Council, itself a temporary body, on the ground that its composition and mandate failed to implement the constitutional chapter on the judiciary. The council is to rule on the challenge within 10 days, renewable once for the same period.
The Supreme Judicial Council will replace the High Judicial Council (HJC), which became widely discredited under former President Zine el-Abidine Ben Ali for compromising judicial independence and ensuring that the courts were subservient to the government. The National Constituent Assembly parliament suspended it in December 2012 after Ben Ali’s overthrow.
In the interim, the parliament appointed a temporary judicial body – the Temporary Body for the Judiciary (Instance Provisoire de la Justice Judiciaire) – to oversee the selection, appointment, promotion, and transfer of judges pending the creation of the new permanent body. The temporary judicial council was hailed as a first step toward judicial independence.
The new constitution mandated the creation of a Supreme Judicial Council, which will be responsible for “ensuring the prevalence of justice and respect for the independence of the judiciary.” The constitution also protects judicial independence, by giving the new body responsibility for judicial appointments, disciplinary measures, and dismissals. Judicial independence is also protected under international human rights standards.
Ben Ali presided over the High Judicial Council, whose members also included the justice minister and other officials. He used the council to help the executive branch undermine judicial independence and make the courts subservient to the political authorities. But Tunisia’s new authorities have made insufficient progress in fostering and securing the independence of the judiciary since Ben Ali was ousted in the “Jasmine Revolution” of 2010-2011, Human Rights Watch said.
The Justice Ministry has continued to interfere in judicial appointments and promotions, and to engineer the dismissal of judges. Justice Minister Nouredine Bhiri arbitrarily dismissed 75 judges in May 2012, accusing them of corruption and other wrongdoing while denying them an adequate opportunity to answer his accusations. After interviewing 10 of the dismissed judges, Human Rights Watch set out the evidence that their dismissals were unfair and arbitrary.
In October 2013, a subsequent Justice Minister, Nadhir Ben Ammou, ordered the transfer of two senior judges without consulting them or obtaining their consent.
The commission of legal experts appointed by the Justice Ministry to devise the new law on the judiciary published a first draft in January. Two months later, the Ministerial Council adopted a revised version that it then forwarded to the parliament – the Assembly of People’s Representatives, which made significant changes before debating and adopting it in plenary session on May 15.
While international law provides no single model for assuring independence of the judiciary, it encourages countries to create an authority to supervise the judiciary that is not dominated by the executive or legislature. Several international instruments recommend a body with both judges and non-judges and with a substantial proportion, or even a majority, of the members elected by the judiciary itself.
Neither Tunisia’s current president nor the justice minister or other executive branch representatives will sit on the SJC. However, only 18 of the Council’s 45 members will be judges elected by their peers. The other members would be judges appointed by the executive and other members of the legal profession appointed by their peers. The non-elected members include the general prosecutor within the military justice system. Increasing the representation of elected judges on the SJC to at least half would increase the safeguards against government interference with the courts.
Although the council has responsibility for drafting a code of conduct for judges and overseeing judicial appointments, promotion, transfers, and immunity, the new law empowers the justice minister to institute misconduct investigations against judges and does not give judges adequate protection against politically motivated punitive transfers to other jurisdictions.
The law provides that the inspector-general of the General Inspection Service (GIS), which is responsible for scrutinizing the functioning of jurisdictions, services, and public institutions attached to the Justice Ministry, is to remain a presidential appointee. Since the unit’s functions include investigating allegations against judges, this adds to the concerns about the new law. An early draft proposed moving control of the GIS to the new Supreme Judicial Council, but the version adopted by the parliament dropped that change.
The Tunisian authorities should submit amendments to the new law to give elected judges at least parity with appointed members in the SJC and excluding the general prosecutor of military justice, who is directly appointed by the executive, Human Rights Watch said. It should also provide more robust safeguards against arbitrary transfers of judges by requiring the Council to seek volunteers to fill all new or vacant judicial posts, giving judges a right to appeal transfer orders before an independent authority, and moving General Inspection Service under the direct supervision of the Council.
“Tunisia has taken a step forward with this new law, but the authorities need to go further to create an independent judiciary capable of ensuring that the country’s courts function freely and without political interference,” Goldstein said.
Human Rights Watch identified the following key deficiencies of Law No. 16 of 2015.
Composition: No Majority of Elected judges
Under article 8 of the law, the Supreme Judicial Council consists of a Judiciary Council; Administrative Judicial Council; Financial Judicial Council; and the Plenary Session, which consists of all the members of the other three bodies. Each of the first three bodies has 15 members with a hybrid composition: four judges holding ex officio membership appointed by the president; six judges elected by their peers; and five non judges from the legal profession chosen by their peers. The initial draft of the law, introduced by the Justice Ministry, envisaged 25 members on each of the first three bodies, with a majority of elected judges. Increasing the representation of elected judges to at least half would increase the safeguards against future government interference with the courts.
Membership for the General Military Prosecutor
The law provides for the membership of the general prosecutor of military justice as an ex officio member. But giving a senior military official influence over the civilian justice system is an encroachment on judicial independence. The general prosecutor is nominated by the Defense Ministry and then appointed by the president by decree.
Under the law governing military judges, the general prosecutor has a military rank. While article 5 of this law states that military judges and prosecutors are independent of the military hierarchy, control of the executive branch over the appointment, career advancement and dismissal of the military judges and prosecutors undermines their independence. Military tribunals conducted several trials against former figures of the Ben Ali government for the human rights abuses committed during the dictatorship, but these trials were marred by several problems and failed to ensure justice for the victims.
Stronger Guarantees Needed Against Punitive Removals
One of the principal safeguards for an independent judiciary is the protection of the judges from dismissal or removal and from transfer to another court except under very limited conditions. The transfer issue is particularly important since the Ben Ali government frequently used punitive transfers, dispatching judges who didn’t follow the government’s line to remote areas.
The new law prohibits the transfer of judges without their written consent, even in cases of promotion, except where transfer is “needed” to meet the “requirements of the judicial service.” This exception is more clearly defined than in the previous law, and limited to situations in which a vacancy arises within a court, there is a significant increase in a court’s workload, or judges are required to sit in newly created courts. The law on the temporary council offered further protection against arbitrary transfers by requiring the temporary council to seek volunteers for the vacant or new judicial post and, if there were none, to appoint a judge who was already based close to the location.
These guarantees were removed from the new law. Human Rights Watch recommends that they be reinserted into the new law, along with a general right of appeal before an independent authority, which can investigate the legitimacy of the transfer to ensure that it is in the interest of the administration of justice.
Justice Ministry Control Over the General Inspection Service and Dismissals
Under law No. 67-29 on the General Statute of Judges, which is still applicable, the General Inspection Service (GIS), in charge of inspecting the functioning of the jurisdictions, services, and public institutions attached to the Ministry of Justice, is under the control of the latter. The inspector general, who is the head of the GIS, is appointed by presidential decree. An earlier draft of the SJC law removed the GIS from executive branch control, giving exclusive jurisdiction to the SJC’s predecessor body. But parliament went back to the former model.
Under law no.16, complaints against judges must be sent either to the justice minister or the president of the SJC, who transfer them to the General Inspection Service for investigation. The inspector general conducts an investigation and can either drop the case or send it to the disciplinary commission of the SJC.
The head of the disciplinary commission appoints a rapporteur to review the evidence, hear witnesses, hear the judge, and make a final report within two months. Judges have the right to examine all evidence against them, to request a hearing at which witnesses will appear, and to have defense counsel. In the case of a disciplinary measure, including a dismissal, the judge has the right to appeal to the Administrative Tribunal, at the first instance and appeal levels.
Under that model, the GIS is only mandated to conduct preliminary investigations, does not have the power to impose sanctions, and can only decide whether to drop the case or to send it to the SJC for further action. But the GIS nevertheless plays an important role in disciplinary proceedings in ways that could allow for undue executive influence, particularly if the justice minister could make the decision to initiate an investigation.
Judicial Independence Under the Constitution, International Human Rights Standards
The Tunisian Constitution protects the independence of the judiciary. Article 102 states: “The judiciary is independent. It ensures the administration of justice, the supremacy of the constitution, the sovereignty of the law, and the protection of rights and freedoms. Judges are independent with the law the sole authority over them in discharging their functions….”
Article 107 states: “Judges may not be transferred without their consent. They cannot be dismissed or suspended from their functions, nor be subject to disciplinary sanction, except in the cases and the guarantees regulated by the law and in accordance with a reasoned decision by the Supreme Judicial Council.”
Independence of the judiciary is a cornerstone of the protection of human rights under the rule of law. The UN Basic Principles on the Independence of the Judiciary state that: “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.”
The Principles and Guidelines on the Right to Fair Trial in Africa state that: “The process for appointments to judicial bodies shall be transparent and accountable and the establishment of an independent body for this purpose is encouraged. Any method of judicial selection shall safeguard the independence and impartiality of the judiciary.”
The European Charter on the statute for judges states that a judge holding office at a court may not in principle be appointed to another judicial office or assigned elsewhere, even by way of promotion, without having freely consented. An exception is permitted only if a transfer is provided for and has been authorized as a disciplinary sanction, if there is a lawful alteration of the court system, or as a temporary assignment to reinforce a neighboring court, with the maximum duration strictly limited by the statute.
While international law provides no unique model for assuring independence of the judiciary, it encourages countries to create an authority for the supervision of the judiciary that is not dominated by the government and the administration. Several international instruments recommend a mixed composition of judges and non-judges for the body, with a substantial proportion, or even a majority, of the members elected by the judiciary itself.
For example, the European Commission for Democracy through Law, better known as the Venice Commission, the Council of Europe's advisory body on constitutional matters, considers that a substantial element or a majority of the members of the judicial council should be elected by the judiciary itself. In addition, the European Charter on the Statute for Judges (1998) “envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary.”
The United Nations Human Rights Committee has emphasized that the exercise of power by a justice ministry over judicial matters, including its powers of inspection of the courts, can constitute interference by the executive and a threat to the independence of the judiciary.
The Tunisian authorities should:
- Increase the number of elected judges to form at least half of all members of the Supreme Judicial Council and each of its committees;
- Remove membership on the Supreme Judicial Council by the general prosecutor of military justice;
- Assign the supervision over the GIS to the Supreme Judicial Council; and
- Reinforce guarantees against arbitrary transfers by:
- Requiring the SJC to seek volunteers for a vacant or new judicial post and, if there are none, appoint a judge who was already based close to the location; and
- Granting the judge who was assigned to another jurisdiction a right to appeal his transfer to an independent authority, which can investigate the legitimacy of the transfer.