Tunisia: Mass Firings a Blow to Judicial Independence
|Publisher||Human Rights Watch|
|Publication Date||29 October 2012|
|Cite as||Human Rights Watch, Tunisia: Mass Firings a Blow to Judicial Independence, 29 October 2012, available at: http://www.refworld.org/docid/508fac152.html [accessed 28 October 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
The dismissal of 75 judges by Tunisia's justice minister was unfair and arbitrary. The firings set a disturbing precedent and increased the subordination of the judiciary to the executive branch. The National Constituent Assembly (NCA) should urgently pass a law to create an independent body to govern the discipline and dismissal of judges in an impartial and transparent manner.
On May 28, 2012, Justice Minister Noureddine Bhiri dismissed 82 judges, citing the need to curb pervasive corruption. He later reinstated nine of them. Human Rights Watch has interviewed 10 of the dismissed judges, none of whom were reinstated, about how their cases were handled. All described unfair disciplinary proceedings that violated international standards on the independence of the judiciary.
"Judges should face dismissal only for serious misconduct or incompetence, and following a fair and impartial procedure," said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. "These dismissals set a worrying and intimidating precedent for Tunisia's justice system."
The justice minister acted in the absence of the High Judicial Council, which was suspended after elections to the NCA. The delay in setting up a new institution to supervise the judiciary has created a legal and institutional vacuum that invites abuse, Human Rights Watch said.
Tunisia's new authorities have yet to revise Law No. 67-29 of July 1967, last amended in August 2005, which determines the rules for the appointment, advancement, dismissal, and discipline of judges. The law created the High Judicial Council, presided over by the president, which played a pivotal role in ensuring executive branch hegemony over the judiciary under Zine El Abidine President Ben Ali. Of its 19 members, 13 were directly or indirectly appointed by the executive.
After the fall of Ben Ali in January 2011, the High Judicial Council continued to function throughout 2011, appointing and promoting judges. Following the October 2011 elections, the NCA decided to suspend the council and adopted a provisional constitution,article 21 of which requires the assembly to replace the suspended High Judicial Council with a temporary judicial authority.
In August 2012, Bhiri, the justice minister, decided to revive the High Judicial Council, with the same members appointed under the Ben Ali government, citing a need to proceed with new appointments and to revise judicial assignments.
The assembly only began to examine the draft Temporary Judicial Council law on July 27, 2012, however. Discussions stalled after some parties, especially Ennahdha, the dominant party in the assembly, opposed granting the new body financial and administrative independence.
The procedures used by the justice minister to dismiss judges ignored the minimal requirements for a fair and transparent process that is open to appeal, Human Rights Watch said.
Under article 52 of Law 67-29, the Discipline Committee of the High Judicial Council could discipline judges in any of the following ways: a reprimand recorded in the judge's file; transfer of office; disbarment; delay in career advancement; suspension from office; and dismissal with or without deprivation of pension rights. Judges could be brought before the Discipline Council for "any dereliction of a magistrate of the duties of his office, of honor or of dignity."
While Law 67-29 lacked sufficient procedural guarantees, such as the right to appeal to an independent body, it did set minimum requirements for granting judges access to case files and the opportunity to prepare a defense. In the absence of the High Judicial Council, the justice minister used article 44 of the law, relating to the "termination of service," which he claims allows him to dismiss judges and circumvent the minimum safeguards under the law, rather than article 52, setting procedures for discipline. A judge may appeal the minister's decision to the Administrative Tribunal, but that body can take years to issue a decision.
The 10 dismissed judges Human Rights Watch interviewed said that their superiors telephoned on May 28 to inform them that their names were on a list of dismissed judges. They had not previously been contacted by the justice ministry and did not know the grounds for their dismissal.
Initially, the ministry did not envisage any review of its decision. Following a general strike of judges on May 29, Bhiri announced that he would create an independent commission to review his decisions and hear complaints from the dismissed judges. All the judges interviewed by Human Rights Watch said that the commission consisted of five ministry inspectors and characterized the review process as summary. They said they had no access to their files, nor were they given an adequate hearing.
The procedures also lacked clear criteria for dismissal. The judges said that even after their hearings they did not know the exact grounds for their dismissal or what evidence the minister had for dismissing them.
For example, Moncef Zghab, who had been an investigative judge in the first instance court of Manouba, said that when he appeared before the commission the inspectors did not give him access to his file. "The chief inspector said that I was accused of receiving commissions from land sales, but they did not have any evidence," he said. "I gave them a detailed account of my earnings. However, they kept me on the list of the dismissed judges."
Habib Zammali, who had been a counselor in the criminal section of the first instance court of Gabes, described the same commission procedures to review the complaint against him. A colleague had taken a photo of him drinking a beer at a picnic with friends, he said. "I received notification of my dismissal through a phone call from the deputy prosecutor of my court. The [commission] general inspector told me I was accused of drinking alcohol and that they received an anonymous letter with a photo of me drinking alcohol." Tunisia has no law prohibiting judges from drinking alcohol in their private lives.
Khalfallah Al-Riahi, who had been deputy president in the first instance court of Zaghouane, told Human Rights Watch that the inspectors based his dismissal on an incident in 1999, when he was a judge in Ain Drahem. A colleague who took Al-Riahi's place in a 1999 trial when he went on vacation was negligent with some files, he said.
"When I came back to work, my superior put the blame on me," he told Human Rights Watch. "In 2005 the disciplinary council at the ministry of justice reprimanded me for dereliction of duty. Since then I never had any problem at work. When I went to the commission at the ministry of justice [in 2012], I asked them the reasons for my dismissal. They said it's for the dispute you had in 1999."
Nizar Ghozlani, who served as a district judge (juge cantonal) in Jendouba, told Human Rights Watch that the review commission told him he was being dismissed because he owed debts to a private company. On April 26, 2012, the justice ministry sent him a warning, saying he should pay the debts. "I collected the money from my parents, neighbors and friends and paid all my debts, and the company dropped the complaints," he said. "This is the only reason they gave me for my dismissal." The commission spent only 10 minutes with him, he said, and did not give him access to his file or the allegedly incriminating material.
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 reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary.
According to the UN Basic Principles on the Independence of the Judiciary adopted by General Assembly resolutions 40/32 of November 29, 1985, "A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing." In addition, the Basic Principles state that judges may be suspended or removed only for reasons of incapacity or behavior that renders them unfit to discharge their duties.
Tunisian authorities should ensure that the removal of judges and prosecutors is carried out in an impartial and transparent manner by a body specifically charged with that function, and in accordance with international standards, Human Rights Watch said. The National Constituent Assembly should revise law 67-29 to establish a clear set of actions for which judges may be disciplined and corresponding sanctions. It should also set up a body with sufficient guarantees for its independence and the power to review the dismissal of judges.