The decision to register a magistrate dismissed by Presidential Decree No. 516/2022 of June 1, 2022, with the Tunisian Bar Association is a first. It has sparked numerous reactions on lawyers' pages, between those who thank the Bar Council for finally offering this guarantee, which is likely to encourage the independence of the judiciary by offering an alternative to judges who rebel against the regime's increasingly systematic instructions and interference, and those who, on the contrary, echo the regime by denouncing this decision, seeing it as unfair competition and an unnecessary challenge to power, thus expressing excessive corporatism, populism, and superficiality incompatible with the principles of the black robe and its history in Tunisia. Some even go so far as to call for the application of a principle of reciprocity, as if this were a matter of relations between states.
The decision was welcomed by the Tunisian Magistrates Association, which sees it as an important reversal in the Order's administrative jurisprudence, restoring its national role in protecting freedoms and rights, as well as defending the independence of the judiciary in accordance with international standards, particularly at a time when magistrates are suffering from the arbitrariness of a power seeking to take control of the judiciary and deny it any guarantees, notably through dismissals carried out outside any legal or disciplinary framework. In its statement of December 18, 2025, the Association expressed the hope that all dismissed magistrates who so request will be registered, and that the joint work between the Association and the Order will continue in order to restore the foundations of the independence of the judiciary and preserve the rule of law.
What is it about?
After decreeing the dissolution of the High Council of the Judiciary and establishing his own provisional council by Presidential Decree No. 11/2022, by which he already assumed the final say in the appointment and professional careers of judges, this was clearly not enough for the man who, on July 25, 2021, declared that he would preside over the public prosecutor's office before retracting his statement, tactically of course. On June 1, 2022, he amended Article 20 of his Decree-Law No. 11/2022 by Decree-Law No. 35/2022 and this time assumed the right to dismiss any magistrate by simple presidential decree, without any prior procedure, without adversarial proceedings, and without the slightest guarantee of the right of defense.
The decree of dismissal is not justified and the magistrate concerned is automatically and imperatively brought before the criminal courts. Furthermore, he is deprived of the right to contest his dismissal until a final criminal judgment, which cannot be appealed, has been handed down—de facto after several years. President Kaïs Saïed did not hesitate to exercise these new prerogatives: that same evening, after lambasting the magistrates with all sorts of accusations, he decreed the dismissal of 54 magistrates, a decision published the same day with Decree-Law No. 35/2022.
This veritable bloodbath, targeting in particular and above all magistrates who had refused to comply with the executive's instructions, was condemned both nationally and internationally. When the case was brought before him, the First President of the Administrative Court ordered a stay of execution for some of them, but the authorities refused to comply and continued their relentless legal pursuit of these magistrates.
The African Court on Human and Peoples' Rights, hearing requests for provisional measures in the case brought by judges Hamdi Rahmani, Makram Hssouna, Sami Houidi, and Khira Ben Khlifa, ordered on October 3, 2024, to suspend the application of Presidential Decree-Law No. 35/2022 and Presidential Decree No. 516/2022.
The case law of the Bar Council chaired by President Mziou
As has always been the case historically, dismissed magistrates sought refuge within the Bar Association.
After receiving requests from a number of magistrates who were dismissed in 2022, the Bar Council, chaired by President Mziou, stated that it had no preconceived notions and intended to handle each case individually. However, it took more than a year before a collective refusal was issued for all the requests, in a timetable that was questionable to say the least. Indeed, this refusal came after a meeting with the Minister of Justice and the release of Maître Mehdi Zagrouba, a victim of torture and arbitrary detention. While no one can prove that any agreement existed, the suspicion remains legitimate given that the Bar Council dared to state, in a public statement that the success of the July 25, 2021 process was a priority for the Bar Association—an unprecedented position for a lawyers' organization, even though the previous Bar Council, chaired by Bouderbala, already embodied a veritable makhzen in the history of the profession.
Appeals lodged against the refusal decisions revealed that, for this Council of the Order, the dismissed magistrates remained magistrates, despite their dismissal being published in the Official Journal and the payment of their dismissal allowances. The refusals were motivated by the fact that the applications had been filed with the sections and not directly with the Bar, by the existence of criminal proceedings against the persons concerned, and by the fact that they would still be magistrates in view of the decisions to suspend enforcement handed down by the First President of the Administrative Court.
It is clear that these were merely pretexts. The section is part of the Order, and requests have always been received through it. Beyond this futile argument, the reason given for the existence of criminal proceedings constitutes a clear denial of the presumption of innocence, one of the most basic legal principles, which the Council of the Order did not hesitate to disregard, thereby bringing shame on the entire profession. As for the stay of execution, these decisions have strictly relative scope and effects: they cannot have any effect on the legal status of the persons concerned, and even less so on third parties such as the Bar Council, as long as they have not been enforced, in particular by complying with the principle of parallelism of forms and by publishing the reinstatement in the Official Journal.
The Bar Council cannot be excused for ignorance of these basic rules, especially since its power in matters of registration on the roll is a so-called "bound" power, i.e., it is limited to ascertaining whether or not the required conditions exist and ruling accordingly, without any margin of discretion or consideration of proportionality.
It goes without saying that this is an eminently political decision, based on allegiance to the regime in power, and one that has been de facto disavowed by the elective General Assembly of the Bar Association. The Assembly had, however, decided unequivocally, in the first round, in favor of President Boubaker Bethhabet, who had been very clear about the need to return to the fundamental principles of the profession on the issue of the registration of dismissed judges. However, this change has not, at this stage, had any impact on pending appeals against the refusal decisions: the Bar Association continues to be represented by lawyers acting on their own initiative, appointed by President Mziou to defend his personal positions, and not those of the Bar Association.
Can we talk about a turnaround?
On December 12, 2025, during the meeting of the Bar Council called to rule on registration applications, one application stood out. Mr. Taher Khantech, a magistrate affected by Presidential Decree No. 516/2022, had submitted a request for review of the decision to refuse his application taken by the previous Bar Council. The basis for this request was the change in the applicant's status, as he had retired and was therefore seeking registration on the basis of Article 3 in fine of Decree No. 79/2011 on the organization of the legal profession.
Seemingly eager to signal a change in position, the majority of the members of the Bar Council opted to respond favorably to this request. Mr. Taher Khantech thus became the first magistrate to be included among the victims of Presidential Decree No. 516/2022.
However, despite this change in fact, the solution adopted is not really in accordance with the law, even though it is entirely legitimate. One might be tempted to reason in terms of parallelism of legal violations, consisting of remedying one violation with another, but such logic cannot be that of lawyers, and even less so that of the Bar Council, which must be legalistic and exemplary.
Indeed, without questioning the nobility of the cause or the merit of the Bar Council, it should be noted that no procedure for requesting a review is provided for by law. As explained above, the Bar Council only has limited powers in this area and cannot, a fortiori, create new procedures, which is unquestionably the responsibility of the legislative branch. This initiative, inspired by a just cause, is certainly commendable, even if it concerns only one case, but it remains legally vulnerable: the decision is not immune to an appeal that may be lodged by the Attorney General at the Court of Appeal, who could, quite rightly, seek its annulment, a legally plausible scenario despite the lack of independence of the judiciary in Tunisia.
This is not the only procedural obstacle faced by dismissed magistrates. The solution of submitting a new application for registration remains possible, but this again requires the payment of registration fees amounting to 20,000 dinars, a considerable sum for people who have been out of work for three years now. It should be noted that, in several cases, the initial registration fees were simply equivalent to the dismissal allowance. However, the law does not provide for the reimbursement of these fees in the event of refusal, unless the Bar Council decides to apply symbolic registration fees, as was done discreetly in 2021 for around 100 applicants, a practice that is now being challenged before the Tunis Court of Appeal and could ultimately lead to criminal proceedings.
Withdrawal would be the most appropriate solution.
The Bar Council can perfectly well remain faithful to the positions duly and clearly expressed by the overwhelming majority of lawyers at the General Assembly, particularly through the ballot box in the bar elections, without having to resort to the creation of exceptional or legally non-existent procedures.
To this end, the Bar Council may rely on the technique of withdrawal, which should be briefly explained before demonstrating its suitability in this particular case.
It is important, of course, to distinguish between withdrawal and revocation. In both cases, it is a matter of reversing an administrative decision; however, withdrawal refers to a situation where the individual administrative decision, which gives rise to subjective rights, has been notified to the person concerned.
Withdrawal is thus the act by which a competent administrative authority decides to revoke an administrative decision that it has already taken and published or notified. This act nullifies the decision: it can no longer have any effect, either for the future or retroactively. This technique is enshrined in Tunisian administrative law under the influence of French law, which established the principle in 1922 with the Dame Cachet ruling, before French case law underwent numerous changes and was then enshrined in legislation.
In Tunisia, although withdrawal is also recognized, the norm has remained essentially jurisprudential. It is the Administrative Court, through consistent case law—not without some initial hesitation—that has confirmed the principle. The landmark ruling definitively illustrating the choice of this mechanism and its legal regime in Tunisian administrative law is the Moncef Chebil v. Minister of National Education ruling No. 374 of May 14, 1980, in which the Administrative Court confirmed the principle of withdrawal and set two conditions for individual administrative acts that give rise to rights: firstly, that the act is flawed or unfounded, such as to render it liable to judicial annulment; secondly, that the withdrawal takes place within the time limits for appealing against that act, except in cases where the Administrative Court would classify the act as non-existent. The Court further specifies that the administration may resort to withdrawal without any party requesting it.
The case law of the Tunis Court of Appeal has also enshrined this principle and its legal regime, in accordance with the Moncef Chebil ruling, both in disciplinary matters and in matters relating to registration on the bar, in dozens of decisions handed down since 2019.
Returning to the case in question, namely that of the dismissed magistrates, recourse to withdrawal remains possible provided that these two conditions can be met. The first condition is largely satisfied, given the flaws that marred the decisions of the previous Bar Council, including the violation of the presumption of innocence, the principle of parallelism of forms, and the principle of administrative neutrality, among others.
The second condition may, at first glance, appear to be lacking in view of the date of notification of the decisions subject to withdrawal, insofar as the time limit for appealing against a non-disciplinary decision of the Bar Council is one month from the notification of the decision or the expiry of the time limit for its adoption, in accordance with Article 75, to which Article 74 of Decree-Law No. 79/2011 refers. However, limiting oneself to this time limit amounts to disregarding another remedy expressly provided for by the Code of Civil and Commercial Procedure, namely the cross-appeal, which governs the issue of time limits for appeals. In this regard, the Code provides that:
"An appeal lodged after the legal time limits shall be deemed to have lapsed. Until the close of the proceedings, the respondent, who has allowed the time limit for appeal to expire or who has acquiesced in the decision prior to the main appeal, may lodge a cross-appeal by means of a written request supported by the grounds for appeal. In any event, the cross-appeal shall follow the fate of the main appeal, except where the main appeal has been withdrawn."
It follows that there is no legal obstacle to the Bar Council basing its decision on the time limits for cross-appeals, which have not yet expired, since the dismissed magistrates have referred the decisions to the Court of Appeal, which is still hearing these cases. The time limits for cross-appeals therefore remain open, making this type of appeal fully admissible.
If the majority of the Bar Council remains committed to respecting and correctly applying the law, it may therefore withdraw its decisions to refuse registration, request the Tunis Court of Appeal to close pending cases on the grounds that they have become moot, and then reopen the files in order to rule again, on a case-by-case basis, either by registering each applicant or by basing any refusal on strictly legal grounds provided for by law and duly established by the documents in the file.
