Judicial Independence in Tunisia in Grave Danger
On February 6, 2022, President Kaies Saied announced that he would dissolve Tunisia’s Supreme Judicial Council (CSM). While his supporters welcomed the declaration with satisfaction, many more across broad segments of society greeted it with outrage and resentment. That the president made this unilateral announcement on the premises of the Ministry of Interior — responsible for public security — stung all the more, as if to send a message that he would not hesitate to use executive power to counter perceived disobedience, judicial or otherwise.
President Saied has been publicly criticizing the judiciary for some time now, denouncing what he calls “the judges’ state,” and has suggested the judiciary is not an independent branch of government. This regular criticism has resulted in wider public campaigns to demonize judges, mainly on social media, that have escalated to threats against them and their families and sparked real fears for their safety. Many judges have called on the president to respect judicial independence, engage in a direct dialogue with them, expressing concern that his antagonism is undermining public confidence in the judiciary and its moral authority.
Following the dissolution of the CSM and closure of its offices, President Saied issued a decree to create a “provisional” Supreme Judicial Council, published in the Official Gazette on February 13, 2022. The new provisional council, as described in the decree, represents a major step backward from the CSM it replaces, which had been major achievement in post-revolution democracy building. It essentially reinstates the hegemony of the executive branch over the judiciary, exactly as it was under former dictators Habib Bourguiba and Ben Ali for over 50 years. It demolishes the separation of powers as stipulated in 2014 Constitution by giving the executive branch the power to dismiss judges.
Judges serving during the dictatorships have often cited the prospect of dismissal as a major hindrance when ruling on cases, if they thought their decision would displease the president. Once again, judges will be put in the position of having to choose between appeasing the president or face dismissal. In his decree, Saied effectively used concerns over judicial integrity and accountability as a pretext to undermine judicial independence. This will never lead to a strong judiciary that protects, upholds, and guarantees the rights of all Tunisians.
This is not to say, however, that Tunisia’s judiciary was not without flaws in the post- revolution period. Indeed, the CSM committed many serious transgressions over the past 10 years. For instance, it mishandled high-profile, controversial cases mainly involving judges accused of corruption and politically sensitive criminal investigations. It also never responded to the strident calls of victims and civil society organizations to end the practice of rotating judges in and out of the Specialized Chambers before they had time enough to rule on cases and deliver decisions.
Given its wrongdoings and missteps, one may wonder why anyone would lament the fate of the CSM, as it failed to fulfill its mandate at least in these instances. Indeed, many of Saied’s supporters say as much. However, it would have been healthier for Tunisia’s young democracy to introduce judicial reforms and vetting procedures for judges rather dismantling the CSM and cementing the executive branch’s power over the judiciary.
This latest move by Said underscores more than ever the need for a constitutional court in Tunisia. Without one, the entire justice system and the rights of citizens are at risk, especially if just one person, the president, oversees the interpretation of the country’s laws. The dissolution of the CSM should serve a hard lesson learned for all those Tunisian decisionmakers who refused to facilitate the establishment of such an important check and balance mechanism.