On February 12, 2022, Tunisian President Kais Saied issued Decree No. 11 of 2022 to establish a new Provisional Supreme Judiciary Council to supervise the judiciary in the country. The new decree abolishes the current Supreme Judiciary Council, which was regulated by Law No. 34 of 2016, and grants the president the rights to object to the appointment of judges and dismiss judges directly.
Before issuing the new decree, President Saied had accused the Supreme Judiciary Council of selling positions and making appointments to serve political interests.
Content of the Decree
The new decree provides that the Provisional Supreme Judiciary Council will be located in the capital, Tunis, and will supervise the ordinary court system, the financial judiciary branch, and the administrative court. (Decree No. 11 of 2022, art. 1.) The president of the Court of Cassation and two deputies, the president of the administrative court, and the president of the Court of Accountability will head the Provisional Supreme Judiciary Council. (Art. 7.) The council is to submit a report on the progress of its work to the president of the republic every three months. (Art. 13.)
The decree allows the provisional council to be in charge of judges’ appointments, promotions, transfers, dismissals, and resignation requests. (Art. 15.) Furthermore, the decree prohibits judges of all courts from striking or organizing collective movements that might disrupt the work of the courts across the country. (Art. 9.)
The president of the republic has the right to object to the appointment, promotion, transfer, and dismissal of any judge, as well as the right to dismiss directly any judges who breach their professional duties. (Arts. 19, 20.)
Reaction to the Decree
According to the international news channel France24, hours after the publication of the decree in the Official Gazette, more than 2,000 protesters gathered in Tunis, many of them waving flags and chanting slogans in support of an independent judiciary. The Islamist movement Ennahda, which was the largest party in the parliament when President Saied suspended the parliament in July 2021, organized the protests.
Likewise, the International Commission of Jurists has opposed the new presidential decree, claiming that it consolidates all the powers of the judiciary in the hands of the head of the executive branch of the government. The commission has further stated that this decree ends any appearance of judicial independence in Tunisia and argues that “[i]t brings Tunisia back to its darkest days [under the former regime of Zine al-Abidine Ben Ali], when judges were transferred and dismissed on the basis of executive whim.”Finally, Youssef Bouzakher, head of the dissolved Supreme Judiciary Council, rejected the decree, which he claims is unconstitutional and eliminates the independence of the judiciary.