75 judges have been dismissed in Tunisia during the last days. The firings, preceded by several others, determine an increase in the subordination of the judiciary to the executive branch, and hinder its freedom systematically.

On May 28, 2012, Justice Minister Noureddine Bhiri dismissed 82 judges, citing the need to curb pervasive corruption, but he later reinstated nine of them.

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 an institutional vacuum that invites abuse.

In August 2012, Bhir, 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 began to examine the draft of the Temporary Judicial Council law on July 27, 2012. Discussions stalled after Ennahdha, the dominant party in the assembly, opposed granting the new body financial and administrative independence.

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 procedural guarantees, 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. A judge may appeal the minister’s decision to the Administrative Tribunal, but that body can take years to issue a decision.

“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.”

Of the 10 dismissed judges on May 28 2012, who were interviewed by Human Rights Watch, all stated that their superiors telephoned to inform them about their names being 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.

Following a general strike of judges on May 29, Justice Minister Noureddine 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.

Some examples clarify the atmosphere that reigns in the country.

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 occured 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.

Nizar Ghozlani, who served as a district judge in Jendouba, told Human Rights Watch that the review commission told him he was being dismissed because of his debts. 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.”

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.”

The UN Basic Principles on the Independence of the Judiciary adopted by General Assembly resolutions 40/32 of November 29, 1985, also states: “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.”

The bill would set up a Temporary Judicial Council to supervise the appointment, promotion, and dismissal of judges. The draft law gives the executive a lesser but still significant role in the composition of the council and fails to provide specific guidelines for the drastic step of removing a judge. As it stands, the measure would leave open the possibility of arbitrary dismissal or transfer, HRW argued.

“The draft law for a Temporary Judicial Council lacks protection against the arbitrary removal or transfer of judges,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. “The National Constituent Assembly should address this shortcoming before passing a law that it defines as temporary but could have lasting impact.”

The assembly’s commission on general legislation started examining draft laws to set up the Temporary Judicial Council in February 2012. On July 27, the assembly’s plenary session began reviewing of the unified draft law submitted by the commission. The rules of procedure require the general assembly to hold a plenary discussion and then vote on the bill article by article.

Under the government of Zine El Abidine Ben Ali, who was ousted in January 2011, a body called the High Judicial Council served as a vehicle for executive branch to curb judicial independence. The president directly or indirectly appointed 13 of its 19 members. The assembly suspended the High Judicial Council in December.

Under the draft the new council would consist of six members elected directly by judges and five ex-officio members – the president and prosecutor general of the court of cassation; the prosecutor general in charge of judicial affairs; the ministry of justice general inspector; and the president of the Housing Court. The law would create an independent electoral commission to supervise the elections.

However, this proposal is weak with regard to representation of judges when it comes to the all-important area of discipline, Human Rights Watch said. The elected members of the new council would include two judges for each of three judicial grades. When the council sits as a disciplinary body, only the two from the same grade as the magistrate to be disciplined would participate along with the five members appointed by the executive, giving the judges only minority representation in disciplinary proceedings.

The draft furthermore would give the prime minister discretionary power to accept or reject the decisions of the council regarding appointments, promotions, and transfers of judges, thus perpetuating effective executive control over the judiciary.

A positive feature of the draft law is that it would restore the right of judges to appeal decisions of the Judicial Council before the Administrative Tribunal. This would conform with international standards, Human Rights Watch said. For example the United Nations Basic Principles on the Independence of the Judiciary guarantee the right “to an independent review of decisions of disciplinary, suspension or removal proceedings.”

In other respects, however, the draft law does not contain sufficient guarantees for the job security of judges, a pillar of judicial independence. The principle of security of tenure is enshrined in several international and regional standards, such as the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, adopted by the African Commission on Human and People’s Rights. Those principles require that judges be suspended or removed only in exceptional circumstances and according to narrowly crafted objective criteria.

Under Law no. 67-29, the 1967 statute that governs most aspects of the judicial system and still needs to be overhauled, transfers of judges were allowed for “a need within the organization,” a broad concept that under Ben Ali facilitated punitive transfers of judges who acted independently. The draft law contains similarly broad language that permits the transfer of judges for “the requirements of judicial service.”

The draft law also does not sufficiently define the wrongdoings that warrant disciplinary measures, and refers only to current applicable laws. Under the 1967 law, the disciplinary council can take action on “any breach by a member of the judiciary of the duties of his office, or of honor or dignity.” By not specifying wrongdoings or corresponding sanctions, it leaves the door open for the executive to initiate disciplinary proceedings on arbitrary grounds.

The UN special rapporteur on the independence of judges and lawyers has said that a law governing a judicial system should give detailed guidance on infractions by judges that would trigger disciplinary measures, and the gravity of the infraction necessary to warrant a specific disciplinary measure.

“An independent judiciary is a key pillar of a democratic government,” Goldstein said. “The assembly should adopt strong safeguards for judicial independence.”