Thread by @Said_Benarbia_

1. Decree 11 on the Temporary High Judicial Council (THJC) is out. This is how it effectively ends any semblance of judicial independence in Tunisia:

2. Decree 11 is purportedly based on the 2014 Constitution. The decree does not refer to any specific article of the Constitution, simply because there’s no article that authorizes the President to interfere in the functioning of the HJC. #Tunisia

3. The Constitution does not provide for the the HJC to be dissolved. What Cannot be dissolved by the Constitution cannot be dissolved by decree. Decree 11 is therefore unconstitutional #Tunisia

4. Decree 11 is based on Decree 117 on exceptional measures, which itself is unconstitutional. Article 80 of the Constitution on the State of Exception does not authorize the President, or any other branch of government for that matter, to dissolve the HJC #Tunisia

5. The THJC is to be composed of 3 bodies: the Judiciary Council (JC), the Administrative Judicial Council, the Financial Judicial Council #Tunisia

6. JC is composed of 4 ex officio members (high judicial positions such as the President of Court of cassation) and 3 three retired judges appointed by the President. Candidates submit their applications to the government. President can appoint members even if they did not apply

7. To be highlighted: under article 106 of the Constitution, appointments to “high judicial positions” are done by presidential decree after consultation with the Prime Minister, based on a list of candidates prepared by the HJC #Tunisia

8. The President is therefore in position to directly appoint and directly influence the appointment of all the THJC members. The Decree ends the practice of electing the HJC members, a cornerstone of judicial independence and a guarantee against executive interference #Tunisia

9. Under international law, at least half the members of the HJC must be elected by their peers. The composition of the HJC is in line with international law. The composition of the THJ is not. It facilitates the subordination of the THJC & the judiciary to the executive #Tunisia

10. The THJC is “responsible” for managing the career of judges. However, under article 19, the President can oppose the selection, appointment, transfer or promotion of any judge. The THJC is required then to “reconsider” and make another proposition within 10 days. #Tunisia

11. The President can also oppose the appointment of senior judicial positions. The THJC is required to reconsider and comply with President’s opposition #Tunisia

12. Article 20 of the Decree illustrates the President’s views of the judiciary being subordinated to the executive, and of judges being accountable to the President #Tunisia

12. Under article 20, the President can request the removal of any judge for misconduct ( It’s of course up to the President to decide what acts or omissions constitute misconduct ). When the request is formulated, the THJC suspends the concerned judge with immediate effect

13. THJC has then one month to rule on the removal request. If no decision is taken, the executive can investigate the case within 15 days & refer the concerned judge to the President of the Republic, who’s then in charge of issuing the removal order :

14. Immediate suspension of judges by the THJC ( presumption of innocence & due process be damned) and removal of judges by the President ( separation of powers & rule of law be damned)

15. Decree 11 establishes a system of complete subordination of the judiciary to the executive. It brings Tunisia back to authoritarianism, when judges were dismissed on the basis of executive whim

16. Decree 11 must be reversed. Constitution, High Judicial Council and Constitutional order must be reinstated