The ICJ today called on the Tunisian authorities to build on the advances made in the January 2014 Constitution by introducing legal and policy reforms to ensure the Tunisian judiciary is fully independent and accountable and is able to uphold human rights and the rule of law.
These reforms should be a priority of the new Parliament and should be carried out in consultation with the judiciary and civil society. The Constitution provides that a new Parliament is to be elected before the end of 2014.
The statement comes as the ICJ concluded a high-level mission to Tunisia to launch its report: “The independence and accountability of the Tunisian judicial system: learning from the past to build a better future.”
In this report, the ICJ examines the past and present Constitution, laws, institutions and practices governing the independence of the judiciary in Tunisia and analyses them in light of international and regional standards.
Despite the foundation laid down by the 2014 Constitution for significant reforms, much more needs to be done.
The ICJ considered that the new High Judicial Council provided for by the 2014 Constitution should be composed of a majority of judges elected by their peers and fully empowered in relation to all aspects concerning the career of judges, to the exclusion of any substantive role for the executive. The Council’s role should extend to development of the budget for the judiciary, in consultation with Parliament.
The ICJ also considered that a new Statute for Judges should be adopted with a view to setting out fair and transparent procedures and objective criteria for the selection, appointment, transfer, assessment and promotion of judges.
In order to establish and maintain the public trust in the judiciary, judges must be accountable and hold themselves to the highest standards of integrity.
These standards should be enshrined in a comprehensive code of conduct developed by judges or in close consultation with them. Following fair and transparent procedures, such standards should also be the basis for all disciplinary, suspension or removal proceedings against judges.
The ICJ is deeply concerned that some laws and practices continue to undermine the independence of the judiciary, including those that grant extensive jurisdiction to military courts and have permitted their increased use since the 2011 uprising.
“The Tunisian law, including the Military Code of Justice, should be reformed with a view to restricting the jurisdiction of military courts to members of the military for alleged breaches of military discipline only, to the exclusion of all cases involving human rights violations and cases against civilians”, said Justice José Antonio Martín Pallín, ICJ Commissioner and former judge of the Spanish Supreme Court.
Another source of concern is the failure of prosecutors in Tunisia to comprehensively fulfil their vital role in the administration of justice, including by adequately investigating and prosecuting cases of human rights violations.
Reforms should result in removing the hierarchical authority of the Minister of Justice over the Office of the Public Prosecutor, including the ability to control and direct prosecutors.
“Laws and policies governing the Office of the Public Prosecutor must be reviewed to ensure that prosecutors carry out their functions independently and impartially. Any form of authority the Minister of Justice exercises over the careers of prosecutors and any form of interference in their decisions should be removed,” stated Said Benarbia, Director of the ICJ’s Middle East and North Africa Programme.
The high-level mission to Tunisia, undertaken from 11-14 May 2014, was led by ICJ Commissioner, Justice José Antonio Martín Pallín.
The mission met with the First President of the Court of Cassation, Ibrahim Mejri, the Prosecutor-General to the Court of Cassation, Ridha Ben Amor, the Minister of Justice, Hafedh Ben Salah, the President of the National Constituent Assembly (NCA), Mustafa Ben Jaafar, the head of the NCA Committee on Judicial, Administrative, Financial and Constitutional Justice, Mohamed Elarbi Fadhel Moussa, as well as high-ranking officials from the Ministry of Justice and members of the Provisional Council for the Judiciary.
The delegation also met with the President of the Bar Association, Mohamed Fadhel Mahfoudh, and members of the judiciary and legal community.