The Independence of the Judiciary: A Long Way to Go

27 March 2012 5:36 pm | Asma Ghribi |

A Courthouse in Tunis

Tunisia’s judiciary faces many challenges to its credibility as an independent body.

The Association of Tunisian Judges along with the Union of Judges have recently submitted a proposal to the National Constituent Assembly (NCA) for a temporary commission that will regulate the judicial branch.

“This commission aims to fill in the constitutional and legal void as both the SCM [Supreme Council of the Magistrates] and the constitution are no longer operational,” stated Kalthoum Kennou, president of the Association of Tunisian Judges in a press conference held last Saturday to celebrate the National Day of the Independence of the Judiciary on March 26^th.

Kennou said that in their new project, they will insist on disentangling the Judiciary from the Executive. “The Judiciary has always been treated as a subordinate to the Executive; it is time for the judicial power to become fully independent,” she added.

“The new commission will be elected and even the people that will organize the election will be elected,” stressed Kennou.

Kennou stated the judges who were involved with the practices of the old regime are prevented from running for both elections.

Many people in post-revolutionary Tunisia have accused judges of colluding with the Ben Ali regime to conceal its flagrant infringements. “Cleansing the judiciary” before reforming it has become a popular demand present in many popular protests.

Wahid Ferchichi, a law professor and judicial expert warned against the consequences of these generalizations made by people whenever they talk about reforming a sector. Ferchichi stressed the absurdity of accusing all judges of being corrupt as many are honest and stood up against the regime. Ferchichi said that Tunisia should avoid the Romanian scenario where the country found itself facing a judicial void due to the strict policy it followed when “Cleansing the judiciary”.

Fathi Mimouni, a member of the Association of Tunisian Judges asserted that the independence of the judiciary is not a post-revolutionary demand, as it dates back to pre Ben Ali era. However, the political powers in Tunisia suppressed efforts of judges to separate the judiciary from the executive branch of government, and intentionally strove to encumber the judiciary.

The law decree regulating the public authorities that was passed last December by the National Constituent Assembly included an article about the creation of a temporary independent committee to supersede the Supreme Council of Magistrates. The SCM, which is the body in charge of appointing, moving and disciplining Tunisian judges, is considered a major impediment to the independence of the judiciary as it had the President of the Republic as its president and the Minister of Justice as its vice president.

This obvious overlapping between two supposedly independent judicial and executive branches is unconstitutional, as the former Tunisian constitution theoretically granted the separation between the executive, judiciary and legislative powers. But in practice, the corrupt former regime expanded its power over the voice of law and order.

According to Ferchichi, apart from the SCM, which the regime took advantage of to put pressure on honest judges, another practice conflicting with the principle of the independence of the judiciary is the way the office of the General Prosecutor operates.

This body is crucial as it is responsible for receiving the cases, accepting them or withdrawing them, and then distributing them on the different courts. Surprisingly, it functions under the supervision of the Ministry of Justice, which represents the executive branch.

It is through the General Prosecutor office that the regime managed to intervene whenever it wished to influence the court’s decision.

Mimouni said that previous experience proved that the independence of the judiciary cannot be granted by a broad article in the constitution. Instead, vigorous institutions and mechanisms able protect the judicial power from any external pressures need to be put in place.

The judges are also urging the constituent Assembly to pass laws to create a Supreme Constitutional Court to decide on the constitutionality of some laws and also to limit of the jurisdiction of the Military Court.


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Afif says:

28 March 2012 at 02:00

The judiciary will never be independent until and unless the issue of the appointment or elections of judgesis first resolved such as there is a guarantee that the judicial power is totally independent from the legislative and executive powers.
I am totally against the Constitutional Court system, because the Court rules on the constitutionality of a specific statute before it becomes law. Anyone who has engaged in the practice of law or has been part of the judiciary will tell you thatit is simply impossible to foresee every application of the law where one interpretration will cover all future cases. The law may be totally valid as applied in a particular situation, but totally invalid as applied in another. I think allowing the citizen himself to attack directly the constitutionality of a statute whether on its face or as applied to his particular controversy is the better way to go. One of the historical cases now being argured before the U.S. Supreme Court concerning the new health law that Congress enacted is testimony to the argument that no court should be allowed to pre-certify the constitutionality of a law. Additionally, in the age of the Tunisian revolution, that right to challenge the legality of the law should rest with the citizen, without the need of a pre-enactment ruling by this “augustus” body, who may lose touch with the reality of the common citizen.
There are issues of the purse and the compensation of the judges, which is always dependent on the legislative branch. The U.S. Supreme Court ruled before that Congress cannot give diminish the salaries of fedeal judges, and in fact is required to give the justices a raise everytime Congress gives itself a raise. What is critical is that the power of the judicial power is derived from the respect that the citizens have in the judicial branch and its decisions no matter how unpopular they may be at the time. This in turn causes the other branches to respect its decisions. A true system of check and balances is what we need.

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The Independence of the Judiciary: A Long Way to Go

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