The talk of guarantees of judicial independence that prevailed during the Second Tunisian Republic’s early years focused on the role of legislation in building judicial authority. In 2018, this authority showed signs that it is recovering the power to shape itself via its judicial work. During that year, several stances emerged that adopted the framework of “the rights and freedoms-protecting judge” that the Second Republic’s Constitution heralded, particularly in the areas of enshrining fair trial values, protecting rights and freedoms, and combating corruption and the normalization of it. Nevertheless, fundamental obstacles and some signs of weakness remain in the judicial body and await remedies.

The year also witnessed the beginning of the work of all 13 Specialized Chambers for Transitional Justice that were established, in parallel with the end of the Truth and Dignity Commission’s mandate. Consequently, the transitional justice process will transfer to these chambers, putting the judiciary under the spotlights of the media and public opinion. So far, the chambers’ work has been limited to convening hearings that uncovered one side of the truth of the violations as spoken by the victims and a few of those accused of committing the violations. Most of the accused were absent from the hearings. Upon examining the cases referred, the chambers issued travel bans against some of the accused and warrants for others. Their work also enjoyed, at least initially, attention from rights groups that rehabilitated the principles and values of transitional justice, albeit symbolically. Nevertheless, and despite the high hopes attached to these chambers, there are major issues awaiting them, including the fact that some of the cases lack serious investigations and the legislators did not stipulate means of appealing their rulings. There is fear that these issues will endanger the victims’ rights and fair trial requirements unless there are bold revisions to reform the foundation of these chambers.

 

1. Civil and Political Rights

The Right to Fair Trial: Rulings with Bold Conceptions

Concern with fair trial had a prominent presence in the regular judiciary’s work in 2018, which is a positive development that deserves to be highlighted and appraised. This concern also appeared in a symbolic stance adopted in the Administrative Court’s jurisprudence, namely in a principled decision with great historical value.

 

Fair Trial is Among the Values of Criminal Justice

Law no. 5 of 2016, which amends the Code of Criminal Procedure, went a long way in enshrining fair trial requirements because of the comprehensive judicial oversight it imposed over the work of the judicial police and the defense rights it enshrined for suspects facing this authority. Before the amendments took effect on 1 June 2016, it was believed that the courts would be lax in applying them given the size of the obstacles. However, the courts’ work in 2018 largely dispels that belief.

In this regard, on 8 August 2018, the Summer Misdemeanors Chamber in the Court of First Instance in Kairouan ruled against hearing a criminal case. The court based its ruling on the invalidity of the prosecution procedures against the accused after it found that he had not been able to access a lawyer when interviewed by the judicial police even though he requested to and his attorney had attended. Hence, the court deemed that there was an encroachment on one of the pillars of fair trial, namely the accused’s right to defense as enshrined in the law amending the Code of Criminal Procedure.[1] The same strict approach penalizing violations of the procedures that guarantee the right of defense was adopted by various trial courts, which issued frequent rulings that annulled the trial procedures when fundamental procedures and the accused’s legal rights had been infringed.

The criminal courts thereby broke with the conservative conceptions that previously governed their approach and that largely refused to comply with defense requests to exercise oversight over the formalities of investigation reports on the grounds that criminal procedures could be corrected. The new judicial stance resembled the functional conception of the judiciary found in the Constitution, namely a judiciary that champions the protection of freedoms.

At the level of the Court of Cassation, there appeared to be contention. On one hand, cassation chambers issued decisions that revealed clear enthusiasm for imposing strict penalties for every infringement on fair trial procedures. For example, in Decision 63341, issued on 9 July 2018, the Court of Cassation raised, of its own accord, the issue of the judicial police taking it upon itself to investigate a case not involving in flagrante delicto without judicial permission.[2] The Court of Cassation stated that the trial court should have nullified the prosecution procedures as a penalty for this infringement on the accused’s legal rights. On the other hand, some cassation chambers issued decisions that challenged the new approach. For example, on 12 February 2019, a decision was issued stating that, “Although the Tunisian legislators did not enshrine a clear and integrated legal system of invalidity in the matter of criminal procedures, unlike comparable legislations, there is no dispute that they ruled out the doctrine of absolute invalidity that results in the annulment of the entire case”.[3] Hence, the court decided that, “Although not mentioning the date that the investigation reports were released is a breach of a procedure required by law, it does not justify nullifying the prosecution procedures”.

Hence, while the trial courts seemed motivated in 2018 to impose a progressive view of fair trial requirements, they were met with resistance from some judges in the Court of Cassation, which reflects a conflict within the judiciary between different generations with divergent perceptions of the judicial function.

 

Public Freedoms: Preventing Government Encroachment and Serving the Values of Democratic Society

The Tunisian courts, both administrative and regular, issued rulings that highlight the judiciary’s strong performance of its role in protecting public freedoms. This role is particularly important because of the continual extension of the state of emergency and the use of its provisions to limit freedoms.

 

Rejecting Censorship Oover Creativity

On 4 October 2018, the governor of Kebili exercised his power of administrative policing to ban filming in the Ksar Ghilane region, which falls under his authority. The basis for the decision was a film scene that required lowering the national flag from a public facility and raising the flag of the terrorist organization ISIS in its place, which offended the governor’s patriotism.

On 5 November 2018, Hussam al-Din al-Triki, the president of the chamber examining the case, issued an urgent affairs decision to stay the execution of the decision prohibiting the filming. He explained his stance on the basis that creative freedom is one of the constitutional freedoms that must be protected and that the governor’s power of administrative policing does not allow him to infringe on this freedom arbitrarily.[4]

 

Restricting Freedom of Movement Falls Under Judicial Oversight

On 2 July 2018, the Chamber of First Instance in the Administrative Court issued a ruling overturning a decision subjecting a citizen to house arrest pursuant to Article 5 of Order 50 of 1978 regulating states of emergency, dated 26 January 1978. The chamber cited that the preventative measure falls within the Ministry of Interior’s restricted power, the exercise of which must be subject to the administrative judge as the authority charged with protecting freedoms. This ruling consecrates frequent jurisprudence by the Court of First Instance on the subject, which had the virtue of limiting the executive authority’s abuse of preventative measures.

 

2. Combating Corruption: A Daring Judiciary and a Voice Heard

In 2018, the investigating judiciary adopted bold stances that give positive dimensions to the judicial effort to investigate corruption cases. The Court of Appeal in Monastir also issued a ruling that developed the system of protection for corruption whistleblowers. Moreover, the Court of Accounts issued Report no. 31, which included oversight actions that highlight the importance of the financial judiciary’s role in combating corruption.

 

Investigating Judges: Greater Courage in Investigating Corruption Cases

On 30 August 2018, the investigating judge in the Financial Judicial Unit issued a preventative decision barring then-State Secretary for Mines Hachem Hmidi from travel. The judge questioned him the same day on account of accusations of accepting bribes and financial corruption. Because of this judicial decision, the head of the government fired the government member the following day. In this regard, the judiciary’s courage in its work on corruption cases constitutes a positive development in 2018. Furthermore, in the context of the judiciary reconceptualizing its relationship with those who enjoy de facto political immunities, the investigating judge in the Court of First Instance in Tunis issued a warrant for Minister Majdouline Cherni on 22 October 2018. He did so because she had refused to comply with a summons sent to her twice,  demanding that she appear before him as a defendant in a complaint filed against her.

The positive image of a judiciary boldly holding government officials accountable should not eclipse the same judiciary’s poor performance in its work on cases of financial corruption. Judges justify the slow pace with the complexity of these cases and their need for complicated and extended investigations. Much of society rejects this justification, considering it an attempt by the judges to justify a functional shortcoming that has helped prevent Tunisia from recovering stolen funds located abroad. There is fear that the European Union will end its freeze on these funds within the next few years because of Tunisia’s failure to establish via final rulings that they came from corrupt sources.

 

The Court of Appeal in Monastir: Positive Discrimination for Whistleblowers

On 22 October 2018, the Court of Appeal in Monastir, presided over by its first president Amad Raziq and with auxiliary judges Muhsin al-Akhal and Najwa Rizqallah, issued Ruling no. 53131. The ruling established the principle that a whistleblower’s loss of employment for reporting the corruption suspends their debt maturities.

The facts of the case were that a banking institution had obtained a payment order from the Court of First Instance in Monastir against one of its clients in a claim to settle the remainder of his loan. The client appealed the decision. In his appeal, he maintained that his default was not a failure on his part; rather, it occurred because he had been arbitrarily fired after reporting corruption in the establishment where he worked. To demonstrate, he told the court that he had obtained a decision from the National Anti-Corruption Authority affording him whistleblower protection, which would allow him to settle the dispute with his opponent [by returning him to his job]. On that basis, he asked that the measure taken against him be rescinded.

The Court of Appeal in Monastir cited the document issued by the National Anti-Corruption Authority to conclude that the appellant was arbitrarily fired because of his commitment to combating corruption. It held that when a whistleblower loses their source of livelihood because of retaliation, their debts are to be suspended until they are returned to their job and the employer pays them their dues; hence, the disputed payment order must be rescinded.

The court based this conclusion on two ideas: firstly, the duty to administer justice that Article 102 of the Constitution vests in the judiciary requires it, when it examines disputes, to search for legislative intents and attempt to apply them. Secondly, the idea of joint participation in combating corruption that the legislators imposed on all components of society requires that protection for whistleblowers expand to encompass their debts to others that measures against them prevent them from honoring. In its theoretical construct, this ruling breaks with the classic conception that limits the judicial function to applying the law and instead adopts a modern conception that holds that the judicial function transcends “speaking the law” to encompass understanding the disputes in all their dimensions and issuing rulings on them whereby the judge serves, protects, and works to develop the values of democratic society. With this approach, the ruling confirms the growth of an innovative tendency within the Tunisian judicial sphere in a manner that accords with the directions of the democratic transition. By adopting the provisions of the Constitution, the ruling also highlights that the development of judicial values cannot occur in isolation from the idea of the universality of human rights and the principles of democratic society.[5]

 

The Court of Audit Publishes Annual Report no. 31

On 18 and 20 December 2018, First President of the Court of Audit Najib al-Qatari submitted the 31st annual report on his court’s oversight functions. The report was then published on the court’s website and rapidly circulated by the media. It revealed major breaches in the disposal of public money that involved many public institutions. Those in charge of these institutions subsequently cast doubt over the credibility of the report but did not manage to conceal the importance of what it revealed. The importance of the court’s oversight work does not eclipse its slow performance of its judicial functions: at the end of 2018, it closed the state budget for 2016, and this delay inevitably compromises its performance of its functional role.

 

3. Family Regulation and Personal Status

In 2018, two important decisions on family regulation and personal status were issued.

 

The Right of a Single Woman to Adopt

On 12 July 2018, vice president of the Tunis Cantonal Court Judge Muhammad al-Muizz al-Arusi,  issued Ruling 12639 on the subject of adoption. This ruling recognized the validity of a single woman adopting an underage girl of unknown parentage. The judge thereby transcended the requirement that the woman applying to adopt be married stipulated in Article 9 and Article 10 of Law no. 27 of 1958 on public guardianship, sponsorship, and adoption, dated 4 March 1958. This ruling was bold because it applied the concept of the child’s best interest as an extralegal value and adopted new family values and concepts that, in their depth and implications, afford rights to single mothers. Hence, the ruling is a new example of the development of the judges’ understanding of their function, namely advocating fundamental rights even if the law has neglected to enshrine them. Thanks to his esteemed jurisprudence and his courage, the judge enshrined rights on which the law is silent. This development lays the foundation for legislative revisions necessitated by the nature of societies and the evolution of mentalities, on one hand, and by human rights in their various aspects and dimensions, on the other.[6]

 

A Judiciary that Challenges the Forced Arabization of Children’s Names: The Constitution Recognizes the Diversity of Tunisian Cultural Heritage

On 27 August 2018, Judge Salim Kammun, vice president of the Court of First Instance in Sfax, issued permission to the Sfax municipality to register a newborn with the name that his parents had chosen even though it was not Arabic. The municipality had refused to register the newborn in the civil status records on the basis that “Masin”, the name his parents insisted on giving him, is not Arabic and Circular no. 15 on civil status, issued by the prime minister on 14 February 1989, prohibits recording newborns with non-Arabic names. This decision, which was issued unexplained, appears extremely significant for the following reasons:

Firstly, it neutralizes an illegal circular that requires that newborns be given Arabic names and places an additional, unjustified restriction on the family’s right to name their children that conflicts with the Civil Status Law, which does not impose this condition.

Secondly, it is a new example of judicial works derived from the new understanding of the judicial function, namely protecting rights and freedoms (Article 49 of the Constitution). Not only does this decision emphasize the rights of individuals, particularly those belonging to ethnic and religious minorities, to give their children names that highlight their distinct cultural identity, it also constitutes a recognition of the diversity of Tunisian cultural heritage in line with the tenets established by the Second Republic’s Constitution.[7]

 

4. Protecting Vulnerable Groups

In this area, a remarkable judicial ruling was issued enshrining, for the first time, the right to change sex by expanding its foundations. This ruling was issued on 9 July 2018 by the Personal Status Chamber in the Court of First Instance in Tunis. The ruling deemed the psychological distress resulting from gender dysphoria constitutes a case of necessity that justifies sex change. One of the ruling’s most important features is that it relied on not only a volume of international legal references but also the principles of Islamic Law in order to enshrine implicitly the right to change sex. This effort to find Islamic roots [ta’sil] is very reminiscent of the Tunisian modernist approach in the area of personal status, an approach that has constantly strived to create social acceptance of rights-related principles by breaking down the ostensible conflict between them and society’s religious convictions.[8]

 

Keywords: Tunisia, Judicial Reform, Najib al-Qatari, Hussam al-Din al-Triki, Judicial Independence

 

This article is an edited translation from Arabic.

 

[1] “Qarar Qada’iyy Tunisiyy Yahmi Haqq al-Mushtabah bihi bi-l-Difa’”, The Legal Agenda, 15 August 2018.

[2] Unpublished decision.

[3] Cassation Decision no. 72461 of 12 February 2019.

[4] “Intisar Qada’iyy li-Huriyyat al-Ibda’ fi Tunis: al-Mufakkira Tanshuru al-Qarar bi-Waqf Man’ Taswir Mashahid Sinama’iyya”, The Legal Agenda, 7 November 2018.

[5] “Isti’naf Muntasir Tuwassi’u Himayat al-Muballighin ‘an al-Fasad: al-Tasharukiyya fi Mukafahat al-Fasad Ta’ni al-Tadamun ma’a Ha’ula’”, The Legal Agenda, 21 November 2018.

[6] Amira Umari, “Haqq al-Um al-‘Uzba’ fi al-Tabanni”, The Legal Agenda, 31 August 2018.

[7] “Mahkamat Sfaqis Tatasadda li-Ta’rib Asma’ al-Mawalid al-Judud Qasran: Ta’kid Qada’iyy ‘ala Ta’addud Rawafid al-Thaqafa al-Wataniyya”, The Legal Agenda, 28 August 2018.

[8] To view the text of the ruling, see “al-Mahkama al-Ibtida’iyya bi-Tunis: Idtrab al-Huwiyya al-Jinsiyya Hala Nafsiyya Tubihu Taghyir al-Jins”, The Legal Agenda, 6 September 2018.