Decree 541-2024 on the promulgation of exceptional rules for the class of 32 justice auditors.
From a formal point of view, it is rather curious to note that in the preamble to the text there is a reference to law n°29 of 1976 relating to the organization of the judicial system and the superior council of the magistracy of July 14, 1967, and all the texts that have modified or completed it, notably organic law n°81 of 2005 of August 4, 2005. What stands out, however, is the absence of decree-law 11-2022 of February 12, 2022, creating the provisional higher council of the judiciary, a text considered a flagship reform of the justice system by the current regime, especially after decree-law 35-2022 of June1, 2022 amended it. Yet the preamble to Decree 541 lists a dozen texts of much lower rank.
This absence cannot be explained by oversight or by the unlikely relationship of the omitted text to the decree's purpose. On the other hand, we are tempted to explain this omission as an execution of (a reaction to) the provisional measures decided by the African Court of Human and Peoples' Rights, on October 03, 2024, in case n°08-2024 Hamadi Rahmani and others against the Tunisian State. The African Court, considering the clear danger to the independence of the Tunisian judiciary, ordered the suspension of the application of decree-law 35-2022 and decree n°516-2022 concerning the dismissal of magistrates. Although the Court was formal, it seems inappropriate to note that the omission of the mention of decree-law 11-2022 in the preamble to the text of decree 541-2024 has no connection with the execution of the provisional measures of the Continental Court, for the simple reason that Tunisia has not submitted to the Court a report on the measures taken to comply with those decided by the Court within the time limit set.
On the other hand, we can rightly confirm that the current regime has suspended the application of these texts de facto, since there is no longer a quorum within the provisional Higher Council of the Judiciary set up by Kais Said, and all or most of these prerogatives are usurped by the Minister of Justice, who abuses them simply by producing almost daily memos, which could be a more plausible explanation.
The initial training of judicial auditors by the Institut Supérieur de la Magistrature is of paramount importance in guaranteeing the quality required for both the judiciary and magistrates. Several texts govern this initial training. Normally, this training lasts 2 years: one year of classroom training at the Institute, where the program includes a content audit and written and oral examinations, and one year of internship, where the justice auditors are required to write two half-yearly reports. At the beginning of the 2nd year, each auditor chooses a subject for a dissertation.
The decree of October 30, 2024 exempts judicial auditors in group 32 from the second semester report of the first year. Without dwelling on the details, the idea is to shorten training in order to accelerate the training process and thus have judges in place as quickly as possible.
Can we explain this phenomenon by the need to meet the needs of the courts, or rather by a change in the way magistrates and the judiciary are perceived?
As far as demand is concerned, i.e. the needs of the courts, there is no doubt that they are real and palpable. In fact, the competition is sometimes open to a larger-than-usual number of auditors. You only have to read the press releases from civil society and professional organizations to realize that there is a shortage of magistrates, whether in the capital and major cities or in the interior. But we must be careful not to regard these measures for initial training as a response to this shortage. In fact, the shortfall is for 2nd and 3rd rank magistrates, whom the Institute does not provide with initial training. The measures therefore have nothing to do with the staffing problems facing the judiciary.
Given that the decree refers to the 1967 law, can the plan exhaust the appropriate solution?
Indeed, just as is the case today, the Tunisian magistracy in 1967 had a problem of qualified personnel, and the legislator provided a solution in article 32, but this solution was never applied. The text provides that lawyers and law professors may be appointed as magistrates. The conditions of application of the text are set by the Minister of Justice. Obviously, these two bodies are the most relatively independent of the current regime. Law professors have repeatedly expressed their condemnation of the regime's violations of the principles of the rule of law and human rights in press releases and petitions. The Bar Association has also done so, albeit much more timidly. Judges, according to the current regime, must, as the President of the Republic has declared several times, adhere to its "war of liberation" and demonstrate their awareness of the historical moment. The practice of the President's dismissal and the use of memos by his Minister of Justice sheds more light on the role the regime expects judges to play. In fact, this is not a case of a well-established clientelist relationship, as was the case with the Ben Ali regime. Judges in Tunisia today must do more than simply carry out instructions; they must anticipate in the right direction, a task that is not always easy given the rapid and unpredictable changes in the clans at the helm. Initial training at the Institut Supérieur de la Magistrature cannot meet this challenge, however long it lasts. Clearly, the decision to shorten it is in line with the reality of judicial power - or the judicial function - according to the Kais Said Constitution.
