As members of the National Constituent Assembly (NCA) began to discuss the judiciary chapter in the draft constitution yesterday, judges are protesting the delay in ensuring judiciary independence from executive and legislative powers.
The Association of Tunisian Judges announced earlier this week that they would wear red badges as a sign of protest in order to express dissatisfaction with the situation of the judiciary two years following the revolution. Former president of the Supreme Council of Magistrates and one of the rare figures who stood against ousted Tunisian president Zine el-Abidine Ben Ali, Mokhtar Yahyaoui, explained to Tunisia Live the reasons behind the judges’ protest.
“There has been a lot of procrastination when it comes to creating a temporary judiciary committee. … The Ministry of Justice is still relying on an old council [Supreme Council of the Magistrates] that has to be dissolved,” he said.
Under the former regime of Ben Ali, the judicial system lacked autonomy and was completely controlled by executive power. Despite high expectations that judicial independence would accompany democratic transition, the judiciary is in crisis, said Raouda Karafi, vice president of the Association of Tunisian Judges.
“The independence of the judiciary depends on the neutralization of judges,” Karafi said. “Both temptation and fear have to be avoided in order not to put pressure on the judges’ decision. … The executive branch is in charge of appointing, transferring, disciplining and rewarding judges. It doesn’t make sense.”
When asked about the Supreme Council of Magistrates, Karafi echoed Yahyaoui, saying that the choice of council members must be based on qualifications and independence in order to avoid political competition. She went on to say the executive branch interferes with decisions of higher appeals courts.
Additionally, Karafi pointed out the delay in the creation by the NCA members of a temporary committee to supersede the council.
“All these reasons make the judiciary a weak branch,” she said.
However, Faouzi Jeballah, adviser at the Ministry of Justice, denied any relation of the ministry with problems faced by Tunisian judges.
“We are also harmed by the delay, but it’s in the hands of members of the NCA and not the ministry,” he said.
Jeballah justified the ministry’s lack of response to the judges’ demands, saying that the temporary committee must be created by NCA members before reforms can move forward.
The legitimacy argument is not valid, argued Jeballah.
“It’s true that the council has members who were there under the regime of Ben Ali, but there are also judges who were judges under the regime of Ben Ali,” he said.
On their second day of addressing the judiciary section at the NCA, the sub-committee charged with drafting new laws and procedures for the judiciary gathered to start creating bodies related to judiciary reform. Monia Kassri, a member of the sub-committee and representative of the ruling Ennahdha party, explained the delay by rejecting the draft law presented by the Association of Tunisian Judges last August.
“According to rules of the NCA, if an article of a draft law is dropped while being discussed at a plenary session, it cannot be presented to the plenary for a second time before six months,” she said.
Given that reform takes time, especially based on the current way the system is organized, the Ministry of Justice did not spare efforts to help, Kassri added.
“The ministry tried to reform the council by adding independent figures until a new one is formed,” she said.
The Supreme Council of the Magistrates will consist of both elected and appointed judges.
According to Kassri, the sub-committee to create a new constitutional court is “a revolutionary achievement to protect the constitution from similar past mistakes.”