The judiciary in Tunisia is between reform and subjugation

After the Tunisian President, Kais Saied, decided to dissolve the Supreme Judicial Council, put its headquarters under guard and prevent the members of the Council and its employees from carrying out their work as usual, the Tunisian judiciary is on the verge of fighting a new battle in order to protect its entity and preserve its independence.

Historically, the Tunisian judiciary has suffered from the pressure from the Executive authority and its direct interference in its work, under various justifications, which prompted it to fight battles to defend itself. Each time, given the fact that the Constitution granted absolute powers to the Executive authority, represented by the President, the existing tyrannical regime managed, each time, to silence the faint voice of the judges, and force them to remain within the circle of absolute loyalty, whether through threats or through bribes. In all cases, the tyrannical authority needed to dominate the judiciary to use it as a tool to try its opponents and to impose its power over society through a judiciary following authoritarian orders.

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After the 14 January revolution in 2011, the democratic transition that accompanied it in Tunisia and the drafting of a new Constitution that guarantees the separation of powers, it was natural to restore the judiciary as the third and necessary pillar for building a state that respects rights and freedoms. The basic idea of ​​any State that respects democracy and meets its minimum requirements is not granting all authority to one individual or body but, instead, distributing it among the institutions that assume legislative, executive and judicial functions, so that each institution monitors the other institutions and makes sure that they perform their role within the framework set for them by the Constitution and the law. For this reason, the 2014 Constitution dedicated a chapter to the judiciary that includes details of its structure and area of ​​specialisation. Article 114 of the Constitution stipulates: “The Supreme Judicial Council ensures the sound functioning of the justice system and respect for its independence.” However, what happened after 25 July, 2021, went in the direction of disrupting everything stated in the 2014 Constitution, and restructuring the constitutional structure of the State, moving towards the rule of the individual who possesses absolute powers without any supervision whatsoever, and mainly from the legislative and judicial authorities.

We expected that the work of the Supreme Judicial Council would be disrupted, given that it is an independent body conveying the constitutional meaning of the separation of powers. This is why, since issuing Decree 117 of 2021, the President has taken the initiative to act outside what the Constitution stipulates, and his justification was course correction. The argument of combating corruption continued to be repeated within the framework of the need to reform the judiciary. If it was confirmed that there are citizens committing acts of corruption and misconduct in different positions of the State institutions, including the judiciary, then the dissolution of judicial structures is certainly not considered a solution to the problem of corruption, but rather falls mainly under an attempt to subjugate the judiciary and take it back to its previous loyalty to the Executive authority. This caused a large-scale reaction that manifested in the judicial authority, including its various structures, rejecting this path that deals a blow to the core of the most important basis for a just State, meaning separating powers and the related principle of “responsibility equals authority”. This means that, as much as those in public office exercise their power, this is also met with the same level of responsibility and accountability and this authority is under supervision. Such supervision has faded, given the domination of the Executive authority over the rest of the authorities which are frozen and, sometimes, even completely omitted.

It was clear in light of the positions expressed by the Supreme Judicial Council elected by the judges, that it rejected the President’s measures against it. The Judges Association calling for fighting back through going on strike and not working in the courts, organising a protest in front of the Palace of Justice in Tunis and preparing to fight the battle all indicate that the judicial authority in Tunisia has come to the forefront of the scene, not only to defend its existence and independence, but also in defence of the Constitution and democracy itself.

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The events currently taking place in Tunisia go beyond the issues of the usual power struggles between the various State authorities and its various institutions; instead amounting to a defence of the State to preserve it as an entity that protects rights and freedoms and guarantees democracy and the right of the circulation of power against any individual tendencies and absolute power. This goes beyond the judicial body, to include the whole of civil society and the political street. An independent and just judiciary is the necessary condition for achieving a state of citizenship, and it is very important not to allow any authority to unilaterally exercise domination and without interference from other authorities, because authority limits authority. Without practicing this principle, the country will be dragged into an absolute rule with divine-like powers, which cannot lead to reform, but will be based on the logic of subjugation.

This article first appeared in Arabic in Al-Arabi Al-Jadeed on 15 February 2022

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.