​​​​​​​Former Tunisian President Marzouki: Reform Battle is Taking Place within Judiciary

2017-06-16    |   

​​​​​​​Former Tunisian President Marzouki: Reform Battle is Taking Place within Judiciary

Editor’s note: On December 30, 2000, the Court of First Instance in Tunis ruled to imprison Moncef Marzouki for an entire year on charges connected to his rights-based and political activism. At the time, Marzouki chose not to appeal the ruling, expressing his readiness to serve the sentence. He called upon everyone accused in political cases and all those volunteering to defend them not to appear before the judges under instruction [from the political authorities], so that their pleadings do not prolong a game he described as rigged. This stance surprised the political authorities, which felt compelled to order the Public Prosecution to appeal the ruling [lest it be executed and cause an uproar in the international community]. Despite his absence at the appellate stage, the appeal ended with the Court of Appeal in Tunis issuing, in 2001, a ruling deferring Marzouki’s imprisonment. The unusual ruling confirmed Marzouki’s diagnosis of the judiciary’s illnesses during that era. Ten years later, the revolution occurred and Marzouki subsequently became president of the Tunisian Republic, serving from the end of 2011 until the last day of 2014.
Before the revolution, Marzouki was one of the most important political activists who stressed the need to reform the judiciary. After the revolution, he helped carve out the current political system, wherein the judiciary is still trying to determine the fundamentals of its social role.

The Legal Agenda interviewed Marzouki about the state of the judiciary in the Second Tunisian Republic and the push for its reform as part of the process of building democracy.

1. What’s your assessment of the Tunisian judicial situation today?
I find the Tunisian judiciary today to be like a patient who has begun showing signs of recovery even though he is still sick. I hope the judiciary recovers fully, and I think that’s possible because of the recession of the cause of the sickness external [to the judiciary], and the growing strength of the factor of recovery internal to it. The external factor refers to the external pressure that was put on the judiciary and prevented it from developing. The fall of the authoritarian regime in Tunisia in principle ended the external pressure, leaving behind remnants of authoritarianism in the form of political corporatism and financial networks. These remnants cannot be as powerful as the terrible system that existed and prevented the independence of the judiciary. The internal factor, which in my view will determine the judiciary’s recovery, is the judges’ commitment to their professional and personal honor. As an observer, I have noticed this commitment gradually improving, which bodes well; namely, that the judiciary will develop into a large tree that shelters and protects us. In the absence of judicial independence due to the authoritarian state’s judges’ lack of commitment to professional honor, we were like orphans, vulnerable to every violation.

2. What do you have to say about the view that for independence to exist, there must be guarantees of judicial independence?
To me, the reform of any system including the judicial system, depends on the internal motivation of its members; that is the most important thing. Generally in any society, there are a group of systems that control the life of society, and they are organically connected and influence each other. For example, a failed education system cannot produce competent judges, and an authoritarian political system cannot permit an independent judiciary to exist. To change our society for the better, all the systems must recover. I notice that for us in Tunisia, the cultural, political, and judicial systems have begun recovering, and this serves the judiciary’s independence. This recovery necessitates that judges seize the opportunity to impose their utmost independence, for nothing today prevents them from doing so except their will. Today, nothing is barring judges from independence except themselves, so they are the ones who will choose between independence or replacing one master with another.

Because we are in a transitional situation, we are noticing in the judiciary’s work signs that independence is developing, as well as signs to the contrary. This reflects the situation inside the judiciary, where there are forces pushing forward and forces pulling backward. Here, I say to Tunisia’s judges, today is your opportunity to assert your independence by taking advantage of the authoritarian system’s weakness. Judges, you must protect your independence yourselves. In protecting democracy, you protect your independence. If authoritarianism returns, you will be its first victim, so you must protect the democracy that brought you independence.

3. Did you defend this stance when you were president?
I certainly defended this view of mine, and I was calling for the maximum degree of judicial independence, including the independence of the Public Prosecution. I defended an independent public prosecution that the whole political class –both in the government and the opposition– felt was under its control. I was asked, ‘do you want to establish a rule of judges [dawlat al-quda]?’, I responded that the conditions for the total independence of the judiciary must be provided because, whatever the cons of this choice may be, its pros in the form of imposing the rule of law are far more important.

4. As soon as you became president, you issued a special clemency commuting the sentences of everyone facing the death penalty to life imprisonment. These clemencies exposed you to major criticisms.
On my first day in the presidential palace, those working with me presented 220 requests for pardon for people against whom final execution rulings had been issued. Ben Ali had both refused to grant them a pardon, and refused to issue the order to execute them. I consider this non-decision torture in every sense of the term. Hence, without hesitation, I issued a pardon for them all, even though I, of course, knew that 99% of Tunisians support the death penalty, that they wouldn’t easily understand this pardon, and that it could hurt my interests as a politician. But I refuse to sacrifice my principles for political gains.

5. What were the reasons behind your principled rejection of the death penalty?
In general, I categorically reject execution on three grounds, which I would like to detail for your readers:
Firstly, it’s a sentence used primarily to eliminate political adversaries, which is something borne out by history and our surroundings. I would say 90% of those sentenced to death throughout history were adversaries of the ruler. We only need to look at the death sentences issued by the Egyptian courts to prove what we are saying here.

Secondly, the [remaining] 10% of  death sentences issued in non-political crimes, in turn suffer from a major [flaw]. After these execution rulings are carried out, it always turns out that a portion of them were a result of a miscarriage of justice, which raises a question about what can be done once an error has led to the wrongful death of an innocent person.

Thirdly, the death sentence does not reduce crime rates, contrary to what some believe. The best evidence of this is that countries such as Saudi Arabia, the United States of America, and China carry out hundreds of death sentences each year, but their crime rates remain high. On the other hand, the countries that have abolished this penalty, such as the Scandinavian countries, have not witnessed a rise in crime rates; rather, because of the development of their penal policy, crime rates have fallen.

On these grounds, I want to call upon Tunisian judges in particular, and Arab judges in general to revise their stance on execution. I ask them, do they accept the execution of an innocent person via a ruling based on a miscarriage of justice? Do they accept an error margin in the execution rulings they issue that multiple estimates put at 5%? As a doctor, if the same question was put to me regarding an injection that could cure but leads to the death of a significant portion of those who receive it, I would say that the error rate is high and I have no right to sacrifice all those innocent people. Hence, I think the death penalty must be abolished.

6. Organic bill No. 79 of 2015 on drugs and the law revised Law No. 52 on drugs and was approved by parliament on April 25, 2017. The discussion of the bill led to a large public debate in tunisia over how drug addicts should be handled legally. What is your opinion on this topic?
To begin with, I want to clarify that I support zero tolerance with drug dealers. During my time exercising presidential powers, I did not grant pardons in four crimes: dealing drugs, attacking the armed forces and army, corruption, and rape. Beyond that, I granted pardons.

Regarding drug users, I believe that they are unwell and deserve treatment, not punishment. Punishment must be inflicted upon those who exploit their sickness to make fortunes. In this regard, I call upon judges in general to, as much as possible, interpret the law to avoid prison sentences; for prison is a school for crime, and the prisons are currently overcrowded. Resorting to prison sentences must be limited to cases of necessity. It is unacceptable that 75% of the rulings that our courts issue comprise a prison sentence. Alternative punishments need to be given more prominence.

7. Does this mean that you are calling for a comprehensive reform of Tunisian penal policy?
Yes, certainly. The Tunisian Penal Code is very backward. It was written for a backward and poor society and needs to be radically revised in the direction of imposing a new penal policy, based primarily on alternative sentences such as community work or [merely] publishing rulings. We must strive to innovate in [the field of] punishment, and when the new code is written, the death penalty must be abolished.

8. As a doctor and jurist, what is your opinion on virginity tests and rectal exams, especially now that the medical order in Tunisia has recently issued a statement calling upon doctors to avoid these tests?
I absolutely oppose these rectal exams and virginity tests as they violate the inviolability of the person. Hence, I deem the Medical Order’s position against these examinations positive. It is ethically unacceptable for doctors to perform them. By the way, every judge who respects the ethics of his profession must refuse to make use of these tests. It makes no sense for judges to refuse to use leaked recordings [which were obtained illegally] because of their commitment to the principle of the integrity of penal evidence, and yet accept the use of virginity tests and rectal exams even though the problems with them are similar.

9. In the beginning of the interview, you assessed the development of the Tunisian judiciary’s professional performance positively. This question is about your assessment of the Judiciary’s performance in the public sphere when they exercise their right to express themselves, and defend their professional interests and independence. Is the judges’ independence discourse satisfactory?
Unfortunately, I think that the judicial discourse is not satisfactory. For example, during my tenure [as president], I felt that for some judges the concept of independence became a vision of independence against the government. In reality, independence is not against the government or for it. Rather, it is independence from the government and authority of all kinds. A judge cannot become a political activist or be classified with one political party, or against another. Judges must ensure that they distinguish between their work in the public sphere on the judiciary and political activity, and be wary of showing signs of falling into the trap of political conflict. The fall of judges into this conflict supports the position of those who call for caution toward judges and oppose the independence of the judiciary, claiming that they fear the rule of judges. I call upon judges to develop their experience so that we can succeed in building a state of law and institutions.

10. Are there any final remarks that you would like to direct to judges and in general to The Legal Agenda’s readers?
In the closing remarks, I would like to pay special tribute to Egyptian judges in their confrontation with the authoritarian system. I also call upon Tunisian and Arab judges to shoulder their full responsibilities in building the new democratic system, a system whose main pillar is the judiciary. Judges must not submit to the authoritarian system, and they must be wary that sectoral arrogance does not cause them to fall into the rule of judges.

This article is an edited translation from Arabic.

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