In the past few weeks, talk has returned strongly in Tunisia about the independence of the judiciary, about justice in implementing court decisions, about the rule of law and institutions, and about a fair trial. This is against the backdrop of the ongoing controversy between the High Elections Authority and the Administrative Court, regarding the latter’s decisions, which the Authority has ignored.
Tunisian elites believed that the legal reforms undertaken by post-revolution governments through the 2014 Constitution were a foregone conclusion. After marathon discussions that lasted for nearly three years, legislators laid the foundations of a fair trial and its conditions and known international standards. However, the electoral commission’s handling of the Administrative Court’s decision returned the situation to “square one” and gave the impression that the country was moving steadily backwards, rather than the opposite.
The Administrative Court accepted the appeals of three presidential candidates and decided to reinstate them in the electoral race, thus cancelling the decisions of the authority that had disqualified them “without legal basis” and “on flimsy pretexts,” as the three candidates described it, and as implicitly stated in the court’s decision.
While public opinion at home and abroad, and political actors, expected the candidates to resume their place in the electoral scene as “serious” competitors to President Kais Saied, whose term has expired, thus giving the October 6 elections a taste and flavour, the decision of the electoral commission was disappointing to everyone, through the persistence in excluding the three candidates.
This decision was a glimmer of hope for achieving a serious electoral situation that guarantees the principle of equal opportunities and fair competition, amidst a state of implicit consensus among political families to rally behind one candidate; to ensure the change that many are looking forward to, even those who lined up behind the “July 25, 2021 coup”, and were among its most ardent defenders, and justified the practices and steps that were taken later, which President Kais Saied’s opponents describe as “tyranny” and “dictatorial.”
Most of them are convinced that change is possible, even necessary.
Between the Election Commission and the Administrative Court
This decision by the Elections Commission has sparked a flood of harsh criticism from legal experts, political figures, parties, organizations, and human rights activists at home and abroad. It has been described as “arbitrary,” “exclusionary,” and biased toward the current head of state. The Commission has even been accused of becoming a “tool of the executive authority,” which has stripped it of its independence, and thus its credibility, and stripped it of the neutrality that the Commission has been known for since its first version was established in 2011, on the occasion of the first truly multi-party elections in the country, during the January 14, 2011 revolution.
The political and popular environment expected the commission to back down in order to ensure the transparency and integrity of the elections, but the commission insisted on its position. Its president, Farouk Bouasker, came out to announce once again the continued exclusion of the three candidates: Imad Daimi, Mondher Zenaidi, and Abdel Latif Mekki. He accused the Administrative Court of violating legal procedures, which the court categorically denied by presenting documents confirming the integrity of its procedures and steps in accordance with the law and the penal code regulating the work of the court and its areas of intervention.
In an advanced step in this emerging conflict, some parties in the country have resorted to suing the Election Commission, considering it to have “deliberately exceeded its authority” and not accepted the decisions of the sole arbitrator in the electoral process, which is the Administrative Court, whose rulings are final and binding, i.e. not subject to appeal or cancellation, according to legal scholars and administrative judges, such as the well-known administrative judge Ahmed Sawab, who in turn filed a lawsuit against the Commission, as a citizen voter, and not in his judicial capacity.
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The Administrative Court (established in 1972) was limited to merely adjudicating cases of abuse of power, which were filed to annul administrative decisions, before the laws regulating it were amended (in 2014) to give it more independence and grant it supremacy in its decisions, especially in electoral disputes, which gives it “jurisdiction” over the electoral process.
However, the Election Commission saw the opposite view. It trampled the Administrative Court’s decisions in the dust, turning them into a lifeless shell, declaring its monopoly over the elections and their various processes, from announcing their date to announcing their final results.
The Election Commission’s handling of the Administrative Court’s decisions takes the country back to square one, raising concerns about the independence of the judiciary and the integrity of the electoral process.
Despite the ongoing controversy between the two institutions, the result is the same: the exclusion of the three candidates and the retention of the trio announced from the beginning: President Kais Saied, Zuhair Maghzaoui (Secretary-General of the People’s Movement), and Al-Ayachi Al-Zammal (President of the “Azemoun” Movement), who was imprisoned and detained due to “crimes of forging popular endorsements,” according to the authorities’ accusations against him.
Not only that, but the executive authority rushed to publish the authority’s decision in the Official Gazette of the Tunisian Republic, to block any hope of going back, as President Saied always repeats.
Indeed, the authority provided the Election Commission with a shipment of electoral ink and “safe bags” for ballot papers, in a registered letter, stating that the matter of the three candidates whose candidacy the authority insisted on dropping for the presidential elections had been irrevocably resolved, and that the Election Commission’s choice was sound and logical, in the authority’s estimation.
Court that does not enforce its judgments
In fact, this is not the first time that the implementation of the Administrative Court’s decisions has been refused. The Ministry of Justice previously refused or ignored the implementation of the Administrative Court’s ruling to annul the decision to dismiss judges (49 out of 57 judges), which was taken by presidential order in June 2022.
The Ministry of Justice did not care about the situation of these judges, even after they went on a brutal hunger strike that lasted for several days, and did not pay attention to the decision of the Administrative Court. What is worse, these judges are still being prosecuted by the authorities to this day, on charges of “launching a strike and unlawfully disrupting a public administrative facility.”
Even social organizations that claim to defend the law and justice among citizens, such as the Tunisian General Labor Union (the oldest trade union organization in Tunisia), refused to comply with the decision of the Administrative Court issued a few weeks ago, in favor of the “Observatory of Control” to combat corruption, headed by the candidate for the presidency of the republic, Imed Daimi.
This is what the Administrative Court has been suffering from for decades. It is easy and convenient to resort to it, but resorting to its decisions and rulings in resolving disputes is still weak, if not non-existent. This raises a fundamental question about the reasons and motives for not implementing the decisions of the Administrative Court, despite all the powers granted to it.
In a recently published legal scientific study on “Implementation of Administrative Judiciary Rulings and Decisions in Tunisia,” administrative judge Imad Al-Ghabri referred to what he called “the exacerbation of the phenomenon of non-implementation of administrative judiciary rulings,” to the point that “it has become known as the judiciary whose rulings and decisions are not implemented,” a phrase that is repeated on everyone’s tongues in Tunisia, as a practical translation of this indifference with which the decisions of the administrative court are faced… an indifference that today places the future of the administrative judiciary in “the palm of a demon.”
“Guardianship” over elections…the hidden conflict
The discussion did not end with the failure to implement the Administrative Court’s decisions, but rather extended to include the issue of jurisdiction over the electoral process, with the court insisting on its legal right to do so. However, the Election Commission had preceded everyone else in this from the beginning, by declaring its full “jurisdiction” over the electoral process.
It is the one that sets the election calendar, decides the date of election day, supervises the voting process, and announces the final results. It has also given itself the right to govern the media and media institutions, even the media material nominated for broadcast, and what is said in some media outlets, especially the criticisms directed at the Commission.
Not only that, but the Election Commission declared its authority over the participation of organizations specialized in monitoring elections, such as “I Watch” and “Muraqiboon,” and accused them of financial corruption, based on what it said were “notifications from official authorities” that they had received foreign funding. This means that the Commission has even taken over the role of the judiciary, which is the only one authorized to confirm or deny the accusation of financial corruption against the two organizations.
This tendency to dominate the electoral process, and to exclude the Administrative Court from its legally stipulated areas of jurisdiction in relation to elections, has caused many experts and law professors to break their silence and express their clear rejection of it.
Professor Kamal Ben Masoud, a specialist in administrative justice, considered that “the administrative court has full jurisdiction over elections, especially in electoral disputes and final judicial rulings issued by it,” which was confirmed by a number of specialists in constitutional law, in a statement published last week in several Tunisian and foreign media outlets.
Tendency to dominate the judiciary
The problem is not limited to the mandate over elections, or the status of the administrative judiciary, or the areas of implementation of administrative court decisions. That is the “tree that hides the forest,” as they say. It is a deeply political problem, linked to the political will for fair trials, making the judiciary the arbitrator in disputes between the authorities and their opponents, achieving the independence of the judicial institution, ensuring the principle of separation of powers, and protecting civil and political rights and freedoms in all their manifestations.
This is what the real battles today reflect, in which the Administrative Court file seems to be only “part of the whole,” in the opinion of the ancient logicians.
It is about the tendency of the executive authority, historically and currently, to dominate the judicial institution in general. Since the emergence of the judiciary in Tunisia in the late fifties of the last century, it has been governed by a game of “tug of war” with the ruling authority, which has tended throughout modern and contemporary Tunisian history to dominate the judicial facility and deprive it of its independence. Starting with the rule of the late President Habib Bourguiba, when it was called the “Leader’s Judiciary”, through the rule of President Zine El Abidine Ben Ali, when it was called the “Tekari Judiciary” (in reference to the Minister of Justice, Bashir Tekkari, at the time), and up to the “Judiciary of Leila Jaffel”, the current Minister of Justice, who is described as the “hand of the president” to strike independent judges, according to the opponents of the Tunisian president.
In contrast, the authorities consider this an attempt to “purify the judiciary” from politicization and partisanship, and to defend narrow interests. This is rejected by the judges and those who support them, as they believe that the judiciary is always and forever targeted, and is in constant conflict with lobbies, whether inside or outside the authorities.
Therefore, some members of this body move from time to time, in defense of the immunity of the judicial facility, and to resist the will of the tendency towards the dominance of the authority over the judicial institution in any form.
The judiciary body is moving
This is exactly what the late judge Mokhtar Yahyaoui embodied, before the Tunisian revolution, through his famous letter he sent to former President Ben Ali, warning against the consequences of “exploiting the judiciary” for the interests of the ruling authority, and trampling on one of the wings of justice, equality and good governance. This letter led to his dismissal from the judiciary, but it remained a symbol of the independence of judges, and a reference for defenders of justice.
This is what the Tunisian Judges Association was keen to remind us of now, through its statement issued two days ago, which was described as “courageous” and “profound.”
The association launched what amounted to a “final cry of alarm” regarding the state of affairs in the judicial institution. The statement accused the current Minister of Justice, Leila Jaffel, of “encroaching on the judiciary” and practicing an “authoritarian approach” by “intimidate judges” by arbitrarily transferring them to courts hundreds of kilometers away from their places of residence, without taking into account their social circumstances, in an attempt to “subjugate judges and impose the dictates of the authorities on them,” especially with regard to adjudicating political cases.
The statement criticized what it described as the “atmosphere of fear, terror and insecurity” that dominates the entire judicial system. This is the most dangerous description that the parties are hinting at, and the Judges Association mentioned explicitly, and loudly.
The executive authority is accused of dominating the judiciary, refusing to implement the decisions of the Administrative Court and removing judges who stand in the way of these violations.
The judiciary remains the last resort for those seeking social and political security and yearning for justice.
It is narrated in Tunisian tales, with striking symbolic connotations, that an Arab came from the southern Tunisian countryside towards the capital to visit the Court of First Instance in Tunis, near the government palace in the Kasbah. The man stood in front of the court and read the sign on the facade of the building, where it was written “Palace of Justice”. He commented, saying: “The palace is there, but justice is absent.”
However, the question remains: Is there hope for a new, independent judiciary after the October 6 elections, which would restore confidence in the justice of judges and the independence of the judicial institution?
The problem is primarily political.
This question is related to the political arena, and what the relationship between the executive authority led by President Kais Saied and the various components of the opposition could lead to. Despite the “coldness” of the electoral process, it is accompanied by concerns about boycotting and, on the other hand, the desire to defeat the current president by supporting a real competitor candidate.
This desire was reinforced by the results of a recent opinion poll conducted by the Democracy Support Election Observation and Support organization in cooperation with the British Embassy in Tunisia.
The poll showed that for the first time since his ascension to the presidency, President Saied lost first place in voting intentions, as candidate Mondher Zenaidi, whose candidacy was disqualified by the electoral commission, came in first place with 24.4%, while Saied came in second place with 21.1%. This explains the massive mobilization that the opposition has been carrying out for several days, with the bet on the date of September 13, when preparations are being made for a million-person march in the center of the capital, similar to the one that took place on January 13, 2011 in front of the Ministry of the Interior, which ended with the fall of the regime and the inauguration of a new phase in the country’s history, under the title: “The Tunisian Revolution,” according to the opposition’s estimates.
The question remains: Will the Tunisian scene reach this pulse of new life, which will end the state of stagnation that the country has been experiencing for nearly three years? And will the opposition to President Kais Saied, which is expanding day by day, succeed in resuming the “democratic transition” as many political elites aspire to, despite the deep and fundamental differences and contradictions that divide it?
The president’s supporters see him far away, his opponents see him close.
The views expressed in this article do not necessarily reflect the editorial position of Al Jazeera Network.
