On 2 May 2013, a much-awaited statute pertaining to the formation of a Temporary Judicial Council (TJC) to supervise the judiciary was issued. The statute entitled judges to elect half of the members of the council. The judges, along with legal experts, expected the establishment of such a council to end the hegemony of the ruling authorities over the judicial authority, and to launch an era of an independent judiciary.
The TJC began in earnest to prepare the judicial rotation for the years 2013 and 2014. On 14 September 2013, one day before the start of the new judicial year, the TJC succeeded in publishing the first fruits of its work, namely, the judicial rotation. For the first time, the TJC broke away from the practices of the previous era by adhering to objective standards in its work. Foremost among those is invoking seniority without paying attention to the previously adopted criteria of loyalty.
Some judges welcomed the rotation, deeming it the beginning of the end of the era of the Justice Ministry`s custodianship over the career track of judges. However, others faulted it for adopting nominally formal criteria, such as privileging seniority rather than merit.
Leaks from the TJC about the deliberations of judges regarding the rotation revealed that the work of the TJC was dominated by disagreements between the elected judges and those appointed by virtue of their positions. These disagreements over the rotation, with the latter supported by TJC members who are not judges, were the real reason behind cited shortcomings.
While the elected judges endeavored to make the judicial rotation a tool for fundamental reform covering the entire judicial system, the appointed ones were more conservative and insistent on preserving a consensus over designated rotations that do not exclude the Ministry of Justice.
The outcome agreed to by both sides led to a judicial rotation that can be described as fair, based on objective criteria and relatively committed to the principle of relocating judges with their consent. However, the outcome can also be described as conservative because it avoided engaging in controversial issues and kept a foothold for the minister of justice in running the professional career tracks of judges, especially at the level of senior judges.
The minister of justice welcomed the judicial rotation. However, the ability of TJC members to reach consensus amongst themselves was seen as a threat to the executive branch of government. Consequently, the latter issued a unilateral declaration of war against the TJC. The first step in this attack was the unfamiliar act of obstructing the publication of the judicial rotation in the Official Gazette. The apparent aim was to create a state of dissatisfaction among the judges directed against the TJC, which will be blamed for the subsequent delay [of publication] that harms the interests of a significant number of judges.
During a hearing session at the National Constituent Assembly (NCA) on 19 September 2013, the minister of justice cast doubt on the jurisdiction of the TJC by describing it as a "chaotic structure." His campaign reached its peak on 14 October 2013 when he announced a mini-judicial rotation by issuing working memoranda that covered seven judges.
The minister most likely figured that timing his rotation announcement to coincide with the end of the al-Adha holiday would create a de facto situation, and enshrine the ministerial transfer of judges during the judicial year as an accepted practice. He also thought that such a move would be in line with the powers that his predecessors previously enjoyed inside the judiciary.
The ministerial judicial rotation included two appointed judges in their capacity as members of the TJC. These include the Justice Ministry`s inspector general and the president of the Real Estate Court. One aspect of this ministerial judicial rotation is that it served as a tool for influencing the work of the TJC by interfering in its composition.
The inclusion of the appointed judges in the rotation prompted them to abandon their previous reservations, after realizing that their unity with all the judges is the best way to prevent the executive authority from continuing to treat their status with contempt.
As a result, members of the TJC closed ranks and held a number of confrontational stands under the slogan of the independence of the judiciary. On 17 October 2013, the TJC announced that it deemed the minister`s memoranda null and void because they were issued by a non-competent administrative body. It called on all the judges who were included in these memoranda to remain in their previous posts.
In response, the justice minister issued a warning letter to the inspector general on 28 October 2013 who remained active in his post at the request of the TJC, despite the minister`s memorandum appointing a replacement in this post. On the same day, the minister chose a popular private broadcasting station to launch a seething attack on the Judicial Council accusing it of usurping authority, ruling according to whims and showing a desire to dominate. He clearly sought to drag his disagreement with the Judicial Council into the political dispute between the ruling powers and the opposition.
On 7 November 2013, as part of the government response to the TJC`s rejection of the mechanism for extending the tenure of judges who reached the retirement age, the prime minister issued two orders extending the tenure of two judges. The TJC countered the government`s intransigence by suspending its activities in a move that showed that the TJC members were ready to create an institutional vacuum in case the government refused to accept its independence.
Moreover, after the ministry (the president of the Real Estate Court and the Justice Ministry`s inspector general) ordered their removal, two members of the TJC hired a lawyer, who is a member of the TJC, to file a lawsuit with the Administrative Court to annul the orders pertaining to their removal.
For their part, the two main judicial bodies (the Tunisian Association of Judges and the Union of Tunisian Judges) succeeded in staging an all-out strike in all courts on 19 and 20 November. These strikes marked the culmination of protests by the TJC, and were represented by sit-in protests through working hours for two hours on 14 November 2013. The importance of the battle prompted these two bodies to overcome their estrangement and coordinate their moves in an unprecedented manner. It can thus be said that the appointments crisis has obliged judges to accept pluralism in the judicial scene.
The move by judges to protest and their unified stance behind the TJC succeeded in clearing out the public veil of ignorance surrounding their cause. Consequently, the National Commission for Lawyers, the Tunisian Human Rights Association, and the Tunisian General Labor Union issued statements in support of the judges’ demands. These organizations also condemned the executive authority`s attempt to use the judicial appointments to adversely affect the independence of the judiciary.
The support for judges expressed by the aforementioned organizations was particularly significant since they are among the four bodies facilitating national dialogue. Moreover, political parties from the left-wing opposition declared their rejection of the contested appointments and demanded that they be retracted before they can return to the national dialogue table.
The unity of the judges and the support they received from jurists and political forces have not affected the government`s stand. The Political Authority returned to using the slogan of "judicial corruption" in defending the appointment decisions. A propaganda campaign was organized in Tunisian media outlets that tried to portray the judges` rejection of the minister`s decisions as an attempt to scuttle his efforts to reform and cleanse the judiciary. Also, the support shown by a sector of the opposition for the demands of the judges was considered a validation of the political authorities` accusations that the judicial bodies are involved in political activity against the government.
A segment of political forces supported the government’s decisions transcending the mere principle of government solidarity and party commitment. Such a move appears to be connected to a principled vision, which certain political parties expressed when discussing judicial reform in public forums and in the NCA. This vision states that an independent judiciary that has not been reformed or cleansed is a threat to authority.
The adherence of both sides to their position has led to a state of division. In one camp stand those who insist on the independence of the judiciary and call for freeing it from the clutch of executive authority. In the other camp are those who insist on the executive authority`s custodianship over a judiciary whose loyalty they question and whose reform they demand without laying out the essence of such a reform.
In the midst of the balance of power that had governed the dispute throughout that period, the Administrative Court issued two urgent rulings on 23 November 2013, which championed the judges` reading of their law. The court decided to temporarily suspend the implementation of the two orders to appoint the Justice Ministry`s inspector general and the president of the Real Estate Court.
Despite the precautionary and temporary nature of the two decisions, they played a prominent role in championing the TJC amid the campaign launched against it. Observers invoked these decisions to question the legitimacy of the justice minister`s decisions. This is especially the case since the Administrative Court`s jurisprudence has normally refrained from suspending the implementation of decisions related to annulment applications, except in the case of administrative decisions that clearly show misuse of power.
It is thus clear that developments in the dispute between the executive authority and members of the judicial authority over the independence of the judiciary indicate that the battle is not over. In fact, the dispute is growing and expanding on several fronts to become one of the main elements of the political crisis.
The depth and developments of the crisis reveal that the battle has been necessary to assert the independence of the judiciary in the face of the government`s vision, which insists on its right to inherit a submissive judiciary from the old regime. The dimensions of this conflict, even before it is over, have shown that legal texts alone are not sufficient to build the institutions of an independent judiciary, although they are an important prelude to achieve that goal. The independence of the judiciary means that certain battles need to be fought. These battles must be led primarily by judges, as soon as they abandon the reserved attitude that they are traditionally associated with.
[This is an edited version of an article that was originally published on The Legal Agenda, first in Arabic and subsequently in English.]