A Verdict on Change

The main courthouse in the heart of Tunis has a name as grand as its imposing art nouveau architecture: Palais de Justice. Its French architect, who finished the job in 1902, made sure to include a nod to local traditions in the arabesque porticos that adorn its façade. But perhaps the most striking thing about the palace is what it lacks — namely a docket, the official calendar that tells those with court appointments when and where their cases are being deliberated. The shortcoming is revealing. Even in today’s democratic Tunisia, the path to justice remains an obstacle course.

Anas Zammit knows the quirks of the Tunisian judiciary all too well. Two years ago, at age 23, he became the second-youngest judge in the country (out of 2,200 total). It was a remarkable achievement, reflecting his strong performance in the required examinations, and he’s keen to fulfill the expectations of his compatriots. In the wake of the 2011 revolution, which was fueled largely by Tunisians’ widespread perceptions of their society as deeply unjust, those expectations remain sky-high.

Any democracy worthy of the label requires (among other things) a relatively efficient and impartial judiciary. Yet today, more than five years after the regime of President Zine el-Abidine Ben Ali was toppled, attempts to reform the judiciary (which encompasses some 16,000 employees) are proceeding slowly at best.

Part of the problem is operational. Like so many other parts of the country’s administrative machinery, the court system has long suffered from chronic under-investment and organizational stasis — manifested, Zammit says, in the range of shortcomings he confronts in the course of his everyday routine. He explains, for example, there is only one photocopier in the Palais de Justice, and it’s often broken, or crippled by lack of ink or paper. So he pays from his own pocket to have documents copied at nearby print shops. Rather than relying on over-taxed staff in the courthouse, where there are only about 200 support staff for 100 judges, he often types up his own verdicts to speed things up.

Zammit tells me all this over coffee in a pricey cafe in the upper-middle class Tunis neighborhood of Nasr, similar to a cafe closer to his office that has become his unofficial workplace. He explains that he shares his tiny courthouse office with three other judges, a situation hardly conducive to effective work; and so, like many of his compatriots, he opts to conduct much of his business in cafes instead (though they don’t discuss specific cases in public, a rule that Zammit scrupulously maintains). He explains that his choice of locale has a great deal to do with the social strictures that come with being a judge. “If you go to a working-class cafe, you might run into someone you passed judgment on,” he tells me. “You have an image to maintain in society. You have to give a positive example.” (In Tunisia, it would seem, the upper classes don’t often find themselves in court.)

As exasperating as these quirks of the system can be, however, the Tunisian judiciary faces more fundamental problems than the lack of funding and equipment. As Zammit notes, judicial reformers are still trying to cope with the lingering legacy of the ancien régime. The old autocrats — Ben Ali and his predecessor Habib Bourguiba — habitually regarded the courts as an extension of their own executive power, and used them to crack down on their political opponents and bolster their allies. Judges who resisted would get reassigned to backwater postings.

Reformers are now trying to lead the judiciary into a new era of independence. In March, the Tunisian parliament passed a long-awaited landmark law creating a new judicial council that’s designed to give judges the power to regulate the affairs of their own branch, including the appointment of judges. The council will also appoint one-third of the members of Tunisia’s new Constitutional Court. Unlike its pre-revolutionary predecessor, this new court will also deliberate over disputes from lower courts and parliament, not just from the president’s office.

Yet the laws have met fierce criticism from observers, who worry that the new institutions still permit the government’s executive branch too much influence over judges. Another point of contention: Lawyers wanted seats on the council, which, in the eyes of critics (including Zammit) would create a conflict of interest. (Judges have an incentive to avoid upsetting any lawyer who’s a member of the council, and this would skew deliberations in cases involving them.) Tunisian judges went on strike for a week in early March to protest the law, which one of their professional associations referred to as a “failure and a move away from one of the most important demands of the revolution, namely the establishment of a truly independent judicial authority.”

Zammit shares that skepticism. “You can feel that the priority of the state isn’t to create an independent judiciary,” he says, noting that the government isn’t taking seriously the advice and suggestions of judges for how to approach reform. Old habits, he says, die hard.

Implementing such far-reaching reforms would be hard even under ordinary circumstances. But Tunisia is trying to pull them off at a moment when the nascent rule of law is under severe pressure from a deepening confrontation with jihadi militants. Rhodri Williams, senior legal expert at the International Legal Assistance Consortium, a Stockholm-based umbrella group for legal practitioners and scholars around the world who offer expert advice to countries trying to rebuild justice systems, has been intimately involved in providing new training to Tunisian judges.

Part of that training involves helping judges to see torture and other forms of police violence against prisoners as outside the bounds of legal procedure. Judges frequently told him that they used to take everything prosecutors and police said at face value. “But now they’re skeptical,” Williams says. “They inspect prisons, and they understand that a slap is a human rights issue. It’s encouraging to hear these things. On the other hand, there’s a very broad tendency by Tunisian judges and officials to reflexively view some degree of harsh treatment as an acceptable tool in fighting Islamic extremism.”

Changing that mentality will take time. “This is a really long process,” says Williams. “There are very big institutional barriers to changing how the judges work.” Judiciaries everywhere, he says, have an innate conservatism that makes them highly resistant to change. He speaks from experience, having advised on transitional justice issues in several countries going through rapid political transition, including Colombia and Libya.

Corruption is a particularly sensitive issue. In a 2013 survey by Transparency International, more than half of Tunisian respondents said they perceived the judiciary to be corrupt or extremely corrupt. And the fact that there have been very few prosecutions of old regime figures — despite considerable evidence of their involvement in systemic malfeasance — has helped to tar the image of the entire justice system.

Zammit insists that he sees little evidence of this problem when it comes to the conduct of judges. He says that clerks often scam clients of the court system in ways that erode its reputation. As he explains it, some court clerks tell citizens involved in cases that they can bribe judges for them. The clerks then pocket the money rather than passing it on. If the decision goes in favor of the client, the clerk takes credit, claiming that the bribe greased the wheels. If the verdict goes against the client, the clerk merely says that the client’s opponent in the lawsuit outspent the client in bribes. There have been some legal proceedings against clerks accused of running these schemes.

Despite everything, though, the system is clearly changing, albeit slowly. Zammit notes that relations between judges and the police, who cozily coexisted under the old regime, are now experiencing serious friction as the interests of the two sides diverge. He recalls one big scandal that occurred in August 2015, when a policeman tried to arrest a judge (in flagrant violation of the immunity enjoyed by members of the judiciary). The way Zammit tells the story, when the judge explained who he was, the cop then threatened to seek support from a top prosecutor — a friend of his — who would back him up in any legal dispute. The judge filed a suit against the policeman for threats against a public servant during the exercise of his functions. The police then retaliated by refusing to enforce the order for their colleague to appear before court. The judge’s union had to lobby the Interior Minister to bring the cops in line.

Public opinion of the judiciary is also evolving. Judges who enjoyed relative freedom from criticism in the old days now find themselves under newfound attacks from human rights advocates, who accuse the judiciary (and the police) of using the country’s harsh anti-drug laws to harass government critics. Zammit says that virtually all judges are in agreement that the law is overly strict, which is why they routinely issue only the mandatory minimum sentence to drug offenders. “If you don’t think someone should be prosecuted for marijuana, don’t criticize the police or judges,” Zammit says. “Change the law.” And that’s the job of elected lawmakers, not judges.

Judicial reform is well under way, but Tunisia’s messy transition is complicating the process. Change may seem painfully slow for the average judge trying to clear his or her docket each day, or for the average citizen whose faith in the courts and other state institutions has worn thin. But establishing the genuine rule of law is vital in a country where, for many, justice still feels out of reach.

Photo credit: SOPHIA BARAKET for Foreign Policy

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