Presidential Dismissals of Judicial Officers in Tunisia

Whereas political interference in the judiciary constitutes a hallmark of democratic decline and rising authoritarianism, recent years have seen a sharp increase in assaults on judicial independence worldwide. The situation unfolding in Tunisia serves as a stark example of blatant executive overreach into the realm of the judiciary. On February 12, 2024, Youssef Bouzakher, one of the most senior judges in Tunisia, submitted an individual communication against Tunisia to the UN Human Rights Committee. Through a series of presidential decrees adopted during 2021-2022, he was removed from his position as High Judicial Council member and President and was later dismissed from his judicial position together with 56 other magistrates. In addition to the violations of human rights, the complaint alleges that these measures are part of a broader rule of law crisis in Tunisia. In this blog post, I will analyze the centrepiece of the assault on the Tunisian judiciary by President Kais Saied, namely presidential decree 2022-35, in light of international standards on judicial independence, and particularly, the ones from the African system. By empowering the president to summarily dismiss judicial officers, this presidential decree seriously jeopardizes the independence of judges and prosecutors, which is crucial for guaranteeing the right to a fair trial, and hence, the full enjoyment of human rights and the rule of law.

On July 25, 2021, nearly two years after his election and following months-long protests against the government’s handling of the COVID-19 pandemic and a deepening economic recession, President Saied invoked emergency powers under Article 80 of the Constitution. He dismissed the Prime Minister, suspended the Parliament and lifted the immunities of its members. Ever since, the Tunisian President has multiplied attacks against the judiciary, amidst wider targeting of political opponents, critics, and the press. In September 2021, he arrogated himself full executive and legislative powers, including to rule by decree on, inter alia, the organization of justice and the judiciary, as well as on freedoms and human rights. Thereafter, in February 2022, he dissolved the High Judicial Council, replacing it with a temporary one, and enabled himself to interfere with the career and discipline of judges.

Presidential decree 2022-35, a “judicial massacre”

On June 1, 2022, President Kais Saied struck a deep blow to the judiciary by passing decree 2022-35, declaring that “[w]e cannot save the country without cleaning up the judicial system”. The decree, which was decried as a “judicial massacre” by the Association of Tunisian Judges, grants the President the power to unilaterally dismiss judges and prosecutors that pose threats to “the reputation, independence or proper functioning of the judiciary.” The decree also enables the automatic initiation of criminal proceedings against the concerned judicial officers and opens the possibility for contesting such dismissals only after courts have handed down a final judgment in their criminal cases. On the same day, President Saied dismissed 57 judges and prosecutors, including Judge Bouzakher, through a single presidential order that failed to provide any justification for the dismissals. In a video address released prior to the latter decree, he announced that dismissals were based on accusations ranging from obstructing terrorism-related investigations, financial corruption, to “moral corruption”.

Ever since the adoption of the decree, cases of harassment against judges have soared, with one of the latest targets being Judge Anas Hmedi, the President of the Association of Tunisian Judges. He is currently facing charges for “inciting to cease work” during a judicial strike in 2022, which was launched to protest decree 2022-35 and the dismissal of the 57 judicial officers.

Tunisia’s duty to respect and guarantee judicial independence

Recognizing the intrinsic link between judicial independence and the rule of law, all human rights protection systems concur that states must both respect and guarantee the independence of the judiciary (see, for instance, the UN Guiding Principles on the Independence of the Judiciary, or the Inter-American Court on Human Rights judgment Reverón Trujillo v. Venezuela).

The African system is no exception. Under Article 26 of the African Charter on Human and Peoples’ Rights (hereafter, “the African Charter”), Tunisia has the duty to guarantee the independence of the Courts. The African Court has interpreted this duty to include both the institutional and individual aspects of independence (see here or here). Institutional independence is understood as relating to the status and relationship of the judiciary with other branches of the government, whereas individual independence refers to the personal independence of judges and their ability to perform their functions without fear of reprisal. With regard to individual independence, the Court has explicitly affirmed that it mandates States to ensure that judges are not dismissed “at the whim or discretion” of the executive. By vesting the power to dismiss judges in the President, decree 2022-35 is designed to place the judiciary under the firm grip of the executive, in blatant disregard of judicial independence, as guaranteed by Article 26 of the African Charter, and beyond, by international human rights law and norms.

Furthermore, guaranteeing judicial independence also implies that national legislation must enshrine and be compatible with such a requirement (see here). Accordingly, the African Commission’s Resolution on the Respect and the Strengthening on the Independence of the Judiciary calls upon States to repeal all their legislation that are inconsistent with the principles of respect for the independence of the judiciary. The Commission has also, in the past, examined a case (Lawyers for Human Rights v. Swaziland) where a law, reminiscent of decree 2022-35, vested the power of hiring and firing judges in the Head of State. It found that retaining such a law violated Article 26 of the African Charter, as it “directly threatens the independence and security of judges and the judiciary as a whole.”

Besides, the existence of a state of emergency cannot serve as an excuse to justify the disregard of judicial independence, as the requirement of an independent judiciary is not subject to any exception. As it stands, the powers provided for by decree 2022-35 can be triggered “in the event of an emergency, threats to public safety or to the supreme interests of the country.” However, as emphasized by the Inter-American Court, considering its role as a key safeguard for the protection of fundamental rights, judicial independence needs to be guaranteed especially during states of emergencies.

Decree 2022-35: The grounds for dismissal are vague and overbroad

Under decree 2022-35, judges and prosecutors may be dismissed by the President for acts that are likely to compromise “the reputation, independence or proper functioning of the judiciary.” These vague and overbroad grounds open the door to arbitrary dismissals.

International and regional bodies have clearly articulated that, in order to guarantee judicial independence, states have a duty to establish clear and explicit grounds in the law under which judges may be removed from office. In particular, judges must be able to know what conduct could result in their dismissal. For instance, the Inter-American Court of Human Rights found that grounds such as the “dignity of the administration of justice” or the “decorum of the office” (see here), as well as “the needs for the service” (see here) are open and vague. Thus, it held that in order to limit discretion in the application of sanctions, additional objective criteria must be established to guide the interpretation or content to be given to such concepts.

In addition, international and regional human rights protection systems have fleshed out a closed list of grounds under which judges may be dismissed. These can be categorized as: (i) serious or gross misconduct incompatible with judicial office, (ii) physical or mental incapacity, (iii) conviction of a (serious) crime and (iv) serious or gross incompetence. The African Commission’s Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa only recognize two valid grounds for dismissals of judicial officers, namely “gross misconduct incompatible with judicial office” and “physical or mental incapacity that prevents them from undertaking their judicial duties.”

By empowering the President to dismiss judges on nebulous grounds that leave him too wide a margin of discretion, decree 2022-35 exposes judges to arbitrary dismissals, as exemplified by the 57 judges and prosecutors dismissed in the wake of the decree. Besides, it makes it impossible for judges to predict what conduct could result in their dismissal, resulting in a general climate of fear that can create a chilling effect on independent judicial decision-making.

Decree 2022-35 encroaches on due process

Decree 2022-35 fails to guarantee due process rights throughout the dismissal proceedings, in flagrant violation of international human rights law and norms that recognize that proceedings leading to the dismissal of a judicial officer must comply with due process.

International and regional human rights mechanisms firmly established that dismissal proceedings must be conducted by an independent authority composed primarily of judges, such as a judicial council or a court (see, for instance, ECtHR, Baka v. Hungary). Already in 2015, following an official visit to Tunisia to examine the situation of the justice system in the country since the revolution of 2011, the United Nations Special Rapporteur on the Independence of Judges and Lawyers pointed out that the law on the statute of judges should specify that the initiation and conduct of disciplinary investigation and proceedings, as well as the implementation of disciplinary sanctions, must be conducted by the Supreme Judicial Council. Far from it, decree 2022-35 enables the President to dismiss judicial officers by a simple presidential decree, on the basis of a substantiated report by unspecified “competent authorities.”

Furthermore, the presidential decree only provides a possibility of appeal long after the dismissal decision, once a final judgment has been issued with respect to the criminal charges brought against the affected judicial officer. International and regional bodies have unequivocally asserted that dismissed judges and prosecutors have the right to an effective remedy and must be afforded the opportunity to contest their dismissal decision before a court or an independent authority within a reasonable time (see CCPR, General Comment No. 32 or the European Charter on the Statute for Judges). Likewise, the African Commission has underscored that judicial officers shall be entitled to an independent review of removal decisions. Going a step further, the Inter-American Court of Human Rights has found that when the dismissal of a judge is unlawful, the appropriate remedy shall necessarily be their reinstatement (see also CCPR, Adrien Mundyo Busyo et al. v. Democratic Republic of the Congo). To date, however, although 49 out of the 57 dismissed magistrates saw their dismissal suspended in August 2022 by order of the First President of the Tunis Administrative Court, none have been reinstated.

Conclusion

In its Resolution on the Respect and the Strengthening on the Independence of the Judiciary, the African Commission underscored “the need for African countries to have a strong and independent judiciary enjoying the confidence of the people for sustainable democracy and development.” Besides, the recent appointment by the African Commission as a focal point on judicial independence in Africa demonstrates the clear commitment of the African Union to safeguard judicial independence on the continent.

Yet, so long as decree 2022-35 stands, the hopes for an independent judiciary in Tunisia enjoying the confidence of the people will remain faint. The decree utterly disregards universal standards regarding judicial independence at the expense of Tunisians’ rights to a fair trial, access to justice, and effective remedies. In the absence of a political solution, legal action to challenge the legality of the presidential decree must be pursued. Besides the complaint brought to the Human Rights Committee, submitting the decree to the scrutiny of the African Court on Human and Peoples’ Rights could offer a way to put a hold on President Kais Saied’s scheme to dismantle the judiciary.