Cynical observers might conclude that the Tunisian government got off lightly when the International Association of Judges (IAJ) recently passed judgement on the country’s politically manipulated and abused judicial system.
The regime’s majority control of Tunisia’s Superior Council of Magistrates (SCM) – the body that appoints, assigns and disciplines the country’s judges – not only breaks every basic principle of the independence of the judiciary as central to the rule of law. It cracks Tunisia’s original constitutional rights and runs directly counter to the guiding principles of the IAJ itself.
That led some to hope that SCM’s bald contempt for its standards might earn it censure. Instead IAJ president Fatoumata Diakite of Cote d’Ivoire handed the regime a get out of jail free card, ruling itself out of the debate and declaring the serial abuses of Tunisia’s SCM an ‘internal matter’.
This is not to say the IAJ don’t know how badly the SCM is behaving. Diakite’s IAJ Presidency did say that if the SCM was led by a majority of judges elected by their peers and not by the government, and didn’t have the country’s justice minister as its vice president, this would “strengthen the rule of law in the country and all judges and civil society would benefit from it.” It’s just that they don’t appear to care.
Since Tunisian judge Mokhtar Yahyaoui first wrote in 2001 warning that political interference in the country’s judiciary threatened the rule of law there – and was sacked, censored and his family punished for his advice – the government has worked to ensure that their judges deliver the verdicts they want against the critics they target.
When the Association of Tunisian Magistrates (AMT) agreed with Yahyaoui, its offices were closed by the Ministry of Justice and steps taken to weed out defenders of judicial independence. Index on Censorship and International PEN, in Tunisia for International Human Rights Day, visited some of the victims this month.
Kalthoum Kennou
Among them was Kalthoum Kennou, ordered by the SCM to be relocated to the southern town of Tozeur against her will in punishment for her support for an independent judiciary. Women judges like Kennou on the AMT have particularly suffered from retaliation. Yet while conceding “that the security of tenure of judges is a fundamental principle,” the IAJ still declined to step up defend them.
Index chairs the International Freedom of Expression Exchange Tunisia Monitoring Group (IFEX-TMG) an alliance of 20 free speech groups. The TMG has reported repeated abuses of the law to punish journalists and silence free speech, as politically-motived judges give credence to ludicrous charges and suspect evidence.
Journalist Fahem Boukaddous was jailed for “forming a criminal association liable to attack persons,” simply for reporting public protests against unemployment and corruption in the mining region of Gafsa in 2008. Radio Kalima reporter Mouldi Zouabi was attacked in April but later police bizarrely charged him, the victim, with “violent behavior and committing actual bodily harm” against his assailant.
Index on Censorship has advised the IAJ to repeat its disappointing 2008 investigation into the Tunisian situation, which Diakite was a part of, but with a stricter outlook. Not least the IAJ should expect the AMT to abide by IAJ Principles on the Independence of the Judiciary and the Universal Charter of the Judge, approved in 1999, and for the AMT to act to bring Tunisian legislation into line with international standards.
Few expect this weekend’s AMT sessions in Tunis to discuss the declining independence of the judiciary or open its eyes to the kind of persecution meted out to independent judges – transfers to remote areas, denials of promotion, unjustified salary cuts, travel restrictions, etc. Quiet obedience to the Ministry of Justice will save some their jobs, and save their children from losing their travel and education rights.
The question for 2011 is not just whether judges inside and outside the country will continue to ignore the abuses of the system, but how the European Union will regard it. Tunisia is currently wooing the EU in pursuit of a special agreement with the economic giant on trade and aid.
The cynics might argue that business takes precedence over human rights in the wider scale of things. But who else but an independent Tunisian judge can protect EU business investors from the kind of random top-level corruption recently alleged by US diplomats quoted by WikiLeaks?
EU business interests with millions to put in in Tunisia’s care may make the strongest case yet for an independent Tunisian judiciary.
