As if the hardships already endured by the dismissed judges were not enough, Kaïs Saïed’s regime has taken the situation a step further. The Attorney General at the Tunis Court of Appeal has reportedly filed an appeal against the decisions to admit certain dismissed judges to the Tunisian Bar, citing Articles 74 and 75 of Decree-Law 79/2011 on the legal profession. This move, far from being insignificant, could result in these registrations being challenged and these new lawyers being sent back to square one, thereby plunging them once again into a situation of professional and social exclusion.

A recap of the facts and procedures: a long string of misfortunes

June 1, 2022 marks a decisive turning point in the recent history of the Tunisian judiciary. On that date, President Kaïs Saïed intensified his offensive against the independence of the judiciary. After dissolving the elected High Judicial Council, he established a provisional body whose members he appointed himself, through Decree-Law 11/2022. This text introduces direct and unprecedented interference by the executive branch in the careers of judges, undermining fundamental guarantees of independence. This abuse of power has also been noted by the African Court on Human and Peoples’ Rights, which, in its Judgment 16/2021, called for the annulment of this measure.

June 1 is now associated with a dark moment in the history of the Tunisian judiciary. Following a particularly vitriolic speech—marked by accusations, insults, and a direct challenge to the judiciary—Khaies Saied promulgated Decree-Law 35/2022, which was published that same evening in the Official Gazette. This text notably amends Article 20 of the previous decree-law and grants the head of state discretionary power to dismiss judges without prior proceedings, without due process, without guarantees for the rights of the defense, and in clear violation of the principles of the rule of law.

Even more seriously, dismissed judges are automatically subject to criminal prosecution and can challenge their dismissal only after exhausting all criminal remedies, which leaves them in a legal deadlock that can last for several years.

In this context, Kaïs Saïed did not hesitate to make extensive use of this tool. Through Decree 516/2022, issued on the same day, he ordered the dismissal of 57 judges in what amounts to an unprecedented purge.

Admittedly, the dismissal of judges is not in itself a new development in the Tunisian legal system. It already existed under the Organic Law of 1967 and was employed after the revolution, particularly in 2011 and 2012. However, the current situation is distinguished by one fundamental element: the failure to comply with judicial decisions. Indeed, the administrative court had ordered the suspension of certain dismissals, but these decisions remained unenforced, as the executive branch refused to comply with them.

In response to this situation, several judges have filed a complaint with the African Court on Human and Peoples’ Rights. In Case 08/2024, the Court ordered, on a provisional basis, the suspension of the application of Decrees 35/2022 and 516/2022. Despite the binding nature of these decisions under international law, they have not been enforced.

Similarly, the numerous statements issued by international bodies—including the Office of the United Nations High Commissioner for Human Rights and the Independent Expert on the Independence of Judges and Lawyers—as well as the reactions from national and international civil society, have had no effect.

Deprived of their positions and incomes, the dismissed judges turned to the Tunisian Bar Association, which has historically served as a refuge for judges ousted under previous authoritarian regimes.

However, in 2022, the Bar Association Council, led by President Hatem Mziou, openly aligned itself with the government. Some observers even referred to them as the “Bar Presidents of Carthage,” in reference to their public and unreserved support for the president. In this context, the magistrates’ applications for registration were rejected, in a move perceived as aligned with the regime’s positions.

The appeals filed by the judges were unsuccessful, largely due to the executive branch’s influence over the judicial institutions.

However, a change occurred with the election of Boubaker Betahbet as president of the Bar Association. Guided by a platform focused on the defense of rights and freedoms, the new Council undertook a review of the applications and began reinstating the dismissed judges.

This development raised hopes, which were quickly dashed by the public prosecutor’s office, which filed an appeal against these decisions.

It should be noted that this is an exceptional measure: this is only the second time this authority has been exercised. The first instance dates back to the Ben Ali era. Yet, for decades, the bar association has admitted opponents without the government systematically objecting.

The procedural effect of the appeal

From a legal standpoint, the Public Prosecutor’s Office’s action is based on Article 74 of Decree-Law 79/2011, which allows it to challenge decisions made by the Bar Association. However, the central question concerns the effects of this appeal: does it suspend the enforcement of registration decisions?

Article 75 generally provides that an appeal has suspensive effect. However, this rule has rarely been applied in practice.

The main issue concerns the taking of the oath. Can the judges in question take the oath while their appointment is being challenged?

The Department of Justice might argue that the suspensive effect prevents this formality from being completed. However, this interpretation conflicts with Section 6 of the same decree-law, which requires the oath to be taken within three months of the registration being accepted.

This provision constitutes a special rule that must take precedence. There is no indication that this time limit is contingent upon the outcome of an appeal. To interpret it otherwise would render this provision meaningless and would amount to an unfounded assumption that the legislature failed to address this matter.

A New Twist in the Regime and the Issues at Stake

Beyond the legal aspects, this situation raises a fundamental question: why such a strong insistence on barring these judges from any professional activity?

By depriving them of the right to work, the government does more than just punish individuals; it extends the consequences to their families, exposing them to serious economic and social hardships.

This policy can be interpreted as a form of exemplary punishment. It aims to deter sitting judges from exercising any form of independence by showing them the consequences of opposing the government.

Following this line of reasoning, the regime seeks to ensure the judiciary’s compliance. However, resistance persists, particularly within the Tunisian Magistrates’ Association. Its president, Anas Hmaidi, is under constant pressure, despite condemnation from international bodies, including the International Association of Magistrates and Special Rapporteur Margaret Satterthwaite.

In this context, the Tunisian judiciary is now caught up in a process of profound and lasting dismantling. Faced with an increasingly unpredictable and authoritarian government, violations of the rule of law can no longer be viewed as mere temporary lapses: they reflect a deliberate and systematic effort to undermine institutional balances.