New Law Should Create Independent Judges
Parliament Should Empower New Judicial Council to Review Judge Dismissals
(Tunis, March 28, 2013) – Tunisia’s National Constituent Assembly should commit to the creation of an independent judiciary free from government interference, Human Rights Watch said today. The assembly will consider a proposed law to establish a Temporary Judicial Council (TJC) later this week, which would replace the discredited Supreme Judicial Council as the primary body responsible for the functioning of the judicial system. The proposed law, although an improvement on a 2012 predecessor, still raises concerns about the extent that ministers would continue to have influence on the disciplining of judges and other issues affecting their independence from government.
Under former President Zine el-Abidine Ben Ali the supreme council, established in 1967, was used to assist the executive branch to undermine judicial independence and make the courts subservient to the political authorities. The assembly is due to examine the proposed law this week. It discussed an earlier draft in July 2012 but shelved it the following month after some political parties opposed granting the temporary body financial and administrative independence.
“Tunisia desperately needs an independent judiciary after so many years in which the political authorities manipulated the courts, denying justice to so many,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. “The assembly has a chance to end the cynical abuse of the courts system by adopting a strong judicial council law.”
Authorities have made little progress in fostering and securing the independence of the judiciary since the overthrow of Ben Ali two years ago, Human Rights Watch said. In particular, the Ministry of Justice has continued to interfere in the appointment and career advancement of judges and to engineer their dismissal. In May 2012, Justice Minister Noureddine Bhiri arbitrarily dismissed 75 judges whom he accused of corruption and other wrongdoing while denying them an adequate opportunity to defend themselves.
After interviewing 10 of the dismissed judges, Human Rights Watch set out the evidence that their dismissals were unfair and arbitrary. The judges accused the minister of subjecting them to unfair disciplinary proceedings that ignored the minimal requirements for a fair and transparent process and violated international standards designed to safeguard the independence of the judiciary. They had no access to their files, they did not receive an adequate hearing, and the minister did not specify the grounds for their dismissal or disclose evidence to justify his decisions. The minister rejected a subsequent request from Human Rights Watch and 10 of the dismissed judges for access to their case files and the precise allegations against them.
“The way in which the minister of justice sacked more than 70 judges last May undermined any sense that an independent judiciary can be easily established in post-Ben Ali Tunisia,” said Goldstein. “As the constituent assembly discusses the proposed new law this week, they should empower the new judicial council to re-open the cases of the fired judges.”
Under the proposed new law, the Temporary Judicial Council would replace the supreme council and oversee the selection, appointment, promotion, transfer, and discipline of judges. The draft that the constituent assembly will consider includes significant improvements from the one it discussed in July 2012. It proposes that the temporary council should have institutional and financial independence, and that judges directly elected by other judges should comprise half of its 20 members – the others being the president of the court of cassation, senior prosecutorial officials, two members of the constituent assembly, and representatives of the national bar association, civil society and academia, plus the general inspector of the Ministry of Justice.
However, when sitting as a disciplinary body, the temporary council will be made up of seven members, with only a minority of three being judges elected by other judges, the other four being appointed by the executive. This contradicts international standards on discipline of judges.
While international law provides no single model for assuring independence of the judiciary, it encourages states to create an authority for the supervision of the judiciary that is not dominated by the executive or legislative powers. Several international instruments recommend that this body have a mixed composition of judges and non-judges, and that a substantial proportion, or even a majority, of the members of the judicial council should be elected by the judiciary.
For example, the Council of Europe’s European Charter on the Statute for Judges says a judicial authority should be “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.” This is so especially when it comes to disciplinary matters, where the charter says a majority of members should be elected judges.
Tunisia’s proposed draft law does not contain enough guarantees against political interference in the election of judges as the whole process of election will be controlled by a commission inside the constituent assembly.
However, the new law would better protect judges against punitive transfer, commonly used under Ben Ali to dispatch judges to remote areas for failing to toe the government’s line. The previous draft law contained undefined language that would have permitted the transfer of judges for “the requirements of judicial service.” The new draft would now prohibit the transfer of judges without their written consent, except where transfer is “needed” to meet the “requirements of the judicial service.” This exception is more clearly defined in the new draft and limited to situations where a vacancy arises within a court, judges are appointed to new positions, there is a significant increase in a court’s workload, or judicial staff are required to sit in newly created courts. The draft law offers further protection against arbitrary transfers by requiring the temporary council to seek volunteers for the vacant or new judicial post and, if they are unavailable, says the council should appoint a judge who was already based close to the location.
The draft law fails, however, to specify the grounds which can lead to judges facing disciplinary proceedings, referring only to currently applicable laws. As the 1967 law allows the disciplinary council to take action against any member of the judiciary accused of breaching “the duties of his office, or of honor or dignity,” this failure to provide a narrower definition could open judges up to disciplinary proceedings brought on arbitrary grounds.
In addition, the draft states that the provisions of law number 29 of 1967 governing the judiciary that do not contradict this law will remain applicable. This means that the law will maintain the power granted to the minister of justice in disciplinary matters to:
Issue warnings to judges, apart from any disciplinary sanction before the temporary council; In case of urgency, to suspend the judge subject to an investigation from holding his or her office until the final decision of the disciplinary procedure before the council.
“Tunisia’s constituent assembly needs to ensure that judges are protected against arbitrary suspension or dismissal according to international standards,” Goldstein said. “Any judge accused of wrongdoing should be guaranteed a fair, transparent, and impartial process.”
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.”
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 reason given to them and without effective judicial protection being available to context the dismissal is incompatible with the independence of the judiciary.
The UN special rapporteur on the independence of judges and lawyers has said that a law governing a judicial system should give detailed guidance on infractions by judges that would trigger disciplinary measures, and the gravity of the infraction necessary to warrant a specific disciplinary measure.
“The constituent assembly has the chance to help create a robust and independent judiciary in Tunisia and end past abuses,” Goldstein said. “But more changes to the current draft are needed if they are to do so.”