On July 25, 2021, amidst a deepening political crisis, Tunisian President Kais Saied froze the parliament and sacked the prime minister, a power grab labelled a coup since the taken measures bypass the 2014 constitution. The impact on most state institutions was significant. In fact, the July 25 measures involved a clear interference with the judicial institutions when Saied took over the supervision of the public prosecution. The interference continued when he issued a decree in February 2022 dismissing the High Judicial Council, an institution that acted as a watchdog guaranteeing the independence of the judiciary. In response, a two-day judges strike was observed at the time.
The judiciary after July 25
Since taking over, Saied has targeted Tunisia’s judicial institutions. In his public address of July 25, 2021, he justified his decision to take over public prosecutions by the slow treatment of corruption cases, especially the files involving influential personalities in the fields of politics and business. He announced that a rehabilitation of the judiciary sector was necessary, and immediately proceeded with placing two senior judges under house arrest. These measures, considered by Saied as disciplinary corrections, were perceived by the judges’ unions as clear attempts at intimidation and interference.
Before these measures, Tunisia had a largely independent judiciary, in the framework of a separation between the executive, legislative, and judiciary authorities. The 2014 constitution included an important number of provisions in its fifth chapter regarding the independence of the judiciary, with 23 articles consolidating its independence, guaranteeing citizens’ rights, and ensuring justice. Though judges and senior judges are nominated through a presidential order, their nomination is carried out based on the crucial opinion of the High Judicial Council.
The nationwide judges’ strike
On June 1, 2022, the Tunisian president issued Decree 2022-35 tightening his grip on the judiciary and granting himself an extended control over its institutions. The decree stipulates that the president has the right to sack judges if he deems that they harm the reputation or independence of the judiciary. On the same day, 57 judges were dismissed and their names published in the official gazette. The new measures were announced by Saied through a televised public address during which he explained that his decision was taken following a series of warnings to the judiciary, in his stated attempts to rehabilitate the sector. The dismissed judges were, according to Saied, accused of corruption, sexual harassment, and protecting terrorists. The list of the dismissed judges includes the former head of the dissolved High Judicial Council as well as the president and the vice president of the Tunisian Association of Young Judges.
In response to these measures, a meeting was called, gathering representatives of all judges’ unions and associations. A number of dismissed judges delivered public testimonies explaining that this arbitrary sacking was a direct reaction to their refusal to follow Saied’s instructions on trying political cases against his opponents. A nationwide week-long strike of the courts, soon extended for an additional week, was announced by four judges’ unions and associations—the Tunisian Judges Association, the Tunisian Judges Union, the Female Judges Union, and the Young Judges Association—and supported by various civil society groups, activists, and politicians opposing Saied’s measures. The judges insisted that they were not opposed to being held accountable, but only if the trials are fair and their lawful right to defend themselves is upheld in courts.
The head of the Judges Association declared that the strike was successful, in that it mobilized the courts throughout the country and the crushing majority of judges had joined the movement. In an escalating response, Saied ordered wage cuts against the judges participating in the strike, insisting that courts should resume work.
In addition to this, a senior female judge, one of the 57 dismissed judges, was targeted by a defamation campaign launched by the president’s supporters, during which documents of a virginity test carried out after allegations of adultery in December 2020 were leaked on social media. A demonstration was organized by feminist activists in solidarity with the judge on June 8, to condemn this maneuver as a clear violation of her privacy and an absurd justification of Saied’s actions.
The judges’ strike, despite pressures from the president and his supporters, is widely supported by activists, politicians and lawyers. On Monday June 13, judge Habib Rebai resigned from the Independent High Authority for Elections in solidarity with his fellow judges, expressing the urgent need for a new law for judges, which would fit with international standards.
Following the dissolution of the high Judicial Council in February, Saied appointed a temporary council, which is set to carry out the tasks of the previous council. However, the council’s position on the judges’ sacking remains, to this day, unknown. This raises the question of the legitimacy and role of a key important institution. If the president proceeded with the arbitrary sacking of 57 judges without going through the council, why was it appointed in the first place, and what role does it play?
A potential ban of the right to strike for justice sector
The strike occurs in the midst of an escalating political crisis. Since July 25, 2021, Saied has been ruling through various decrees, after he set the 2014 constitution aside. Even though his moves had initially gained popular support following a decade of economic stagnation and social crises, the continued worsening of the economic situation seems to threaten this popular support.
Even though the right to strike is guaranteed by the current Tunisian constitution, a new one could potentially exclude the judicial sector from that right, according to Amine Mahfoudh, a constitutional law professor and a member of the Advisory Committee in charge of drafting the new constitution that will be submitted to a referendum in July. If Saied succeeds in passing the new constitution, dismantling the independence of the judiciary and reversing post-revolution democratic gains, there are growing fears that few will be left to check his power.
Ghazoua Ltaief is a development practitioner with an extensive experience in grants and project management with international agencies and projects.