In Memory of Mokhtar Yahyaoui (1952-2015): Lessons from Tunisia’s Rebel Judge

2015-11-30    |   

In Memory of Mokhtar Yahyaoui (1952-2015): Lessons from Tunisia’s Rebel Judge

Tunisian Judge Mokhtar Yahyaoui died suddenly in September 2015. His career was at different intervals a watershed in Tunisia’s collective legal memory, especially because of the famous letter he sent to then-President Zine El Abidine Ben Ali in 2001. The Legal Agenda is shedding light on this important stage of Tunisian and Arab legal history, due to its implications on our understanding of the movements for judicial independence from government in the Arab world. Researchers from The Legal Agenda met with Yahyaoui numerous times between 2011 and 2013, and I conducted an extended interview with him in January 2012.


A Distinguished Judge, Yet Far Removed From the Independence Movement


The Judge Yahyaoui incident mentioned above has a special place in the collective memory of Tunisian judges, because it was the first direct confrontation with the autocratic government to receive widespread media coverage since the Young Judges case of 1985. The judges of the Young Judges Association had been persecuted after their strongly worded demands provoked the Bourguiba government.[1] Between 1985 and 2001, the judicial arena was devoid of any noteworthy public confrontation.[2] Our interviews with Yahyaoui and some of the judges that followed his case have allowed us to study how his position developed even before his famous incident. By doing so, we can form a clearer picture of the career of “the resistor judge” and understand the professional and political circumstances surrounding it. When and how did the judge forsake his “silent” work in order to publically clash with the government?


Yahyaoui explained to us that, pressured by his father, he entered the judiciary in 1982 after having practiced law for three years in one of Tunisia’s major banks. He knew at the time that “the judiciary is not sufficient to even support a family”. Hence, the judge, who gained worldwide fame for confronting the government entered the judiciary more or less accidentally at a time when he preferred other, better paying fields. The extent of the moral and ethical investment that the young Yahyaoui put into the start of his judicial career becomes apparent. The financial and intellectual sacrifices that he made (in terms of income and research) to enter the judiciary caused him to harbor the largest possible amount of moral expectations from the profession.

While Yahyaoui’s case alone certainly does not prove a direct causative connection between the circumstances under which a person enters the judiciary and their subsequent degree of sensitivity to the government’s violation of judges’ independence, it does allow us to hypothesize along those lines. If, as a contrary example, people become judges in order to climb the financial and social ladder, it follows that their view of the profession may be based on various factors among which the judiciary’s traditional moral virtue has no special or dominant position. Consequently, these judges may interact differently with the government and its interference.


Before long, Yahyaoui was distinguishing himself within the judiciary by occupying important positions for someone his age. To an extent, this contradicts the stereotypical view of an independent, resistive judge, whom we may expect to spend his or her career in marginalized positions and in the shadow of colleagues harmonious with and supported by the government. “Honestly, from the beginning of my time in the judiciary, I worked in a first circuit civil court in Tunis. This court has competence in important cases…I found myself in sensitive, pivotal positions in the judiciary”, he explained. Given that the young judge was appointed to what he later described as “sensitive” positions, it is clear that he did not aggravate the authorities at the beginning of his career. Other Tunisian judges confirm that Yahyaoui was not well known in the general judicial realm before the 2001 incident, at least in relation to independence activism. As these judges are known to be sympathetic to Yahyaoui and his cause, there is no reason to doubt the truthfulness of their testimonies on this matter. Many of them were surprised to see this “unknown” -or at least reserved- judge make that famous stand before the country’s president. Western press reports published at the time corroborate this view of Judge Yahyaoui as “unknown”: the French newspaper Le Monde, for example, introduced him as a judge “without any known political or civil commitment”.[3]


Most interestingly, the narrative that Yahyaoui told differed from that told by his colleagues and the media. According to Yahyaoui, the general “reservation” or “absence” that people watching the judicial arena mention when discussing his pre-2001 role was in fact a different form of judicial resistance. Even if, prior to 2001, he never took any public stance against the regime and its interference in the judiciary. The dissentious judge spoke of many clashes with the regime and its security and judicial personnel during his daily work, due to his commitment to the boundaries of the judicial arena and the means they permit: “The minister, the head of the court, the public prosecutor or attorney general, the [Ministry of] Interior – they all intervene. At one stage I went three months without presiding over hearings to protest the fact that there were secret agents sitting menacingly in them, sitting when I had asked them not to enter the court … I protested and threatened to suspend the hearings.” This example, along with others that Yahyaoui related to us, clearly shows the difference between open resistance that occurs within the public sphere and the media and resistance that occurs backstage in the courts via rulings, positions, and conduct that never reach the public eye. Hence, research on judicial resistance should not be limited to its visible portion, which is usually late to reach the public eye and gain media attention, as a significant portion may also manifest in the technicalities of court rulings and in professional conduct within courthouses.


The Famous Letter: ‘Necessity Knows No Law


As told by many international and press reports on Judge Yahyaoui, on July 6, 2001, he directed an open letter to Tunisian President Zine El Abidine Ben Ali, as the head of the Supreme Judicial Council, asking him to end political interference in the judiciary.[4] Just one day earlier, domestic and foreign newspapers and websites had reported on a text written and published online by dozens of anonymous Tunisian judges. In this text, the judges had declared their åcategorical rejection of “the government’s attempt to embroil the judicial institution in its conflict with civil society”.[5] This initiative may have influenced Yahyaoui’s decision to go public. In any case, Yahyaoui stressed that he tried to send his letter in the conventional manner to the presidential address, but it had returned to him marked “no address”. At that point, he published it as an “open letter” on the internet.[6]

In the letter, Yahyaoui used very clear wording to express the “tragic state” that the Tunisian judiciary had reached.[7] He classified judges into four groups. The first was the “parallel” judiciary, which willfully serves the government and consists of “courtier opportunists” who had successfully seized the Supreme Judicial Council and all sensitive positions and who “trade loyalty to entrench subjugation” and subordination. The second group was composed of judges who are “subjugated” by (and subject to) “repression and intimidation” and tattling. The third group were referred to as the “true” independent judges, for whom independence has become analogous to resignation. The fourth, implicit group –emerging from the third– included the “fiery” judges who sacrifice everything to convey the truth to the ruler, as Yahyaoui himself did.

From another angle, Yahyaoui’s letter outlined what he saw as an obligation –to forgo the duty of reservation [i.e., the duty to refrain from discussing judicial affairs publically]– once all other courses of action have been blocked. In this regard, Yahyaoui’s perspective overlaps with that of the Egyptian Judges’ Club in 2005. The Egyptian judges adopted the ‘necessity knows no law’ formula, which contradicts the approach of acquiescent judges who usually understand the duty of reservation as an absolute duty that must not be forsaken for any reason, even blatant attacks on the judiciary’s independence. Also remarkable is the fact that the criticisms Yahyaoui expressed in the letter went beyond the scope of the judicial system and the need to reform it, painting a bleak picture of Tunisia’s political and social system as a whole.


Without revisiting all of the case’s details, which have been documented in multiple places and reports, we can recall that the investigation of Yahyaoui occurred with record speed: days after the letter was publicized, the head of the court of first instance issued a statement condemning Yahyaoui’s behavior. Subsequently, on July 14, 2001, the General Inspector in the ministry [of justice] issued a statement. Then, on the same day, the minister of justice himself issued a decision suspending Yahyaoui without pay and referring him to the Supreme Judicial Council, as a disciplinary council, for “violating the duties of the profession and harming the judiciary’s reputation”.[8] However, on August 1, 2001, the day before the scheduled date of Yahyaoui’s first hearing before the Discipline Council, the minister of justice issued a decision lifting the “suspension without pay“. This was coupled with a decision delaying the disciplinary hearing for reasons unspecified. At the time, this decision was interpreted as an attempt by the government to quell the enormous wave of solidarity with Yahyaoui that had arisen locally and internationally.

Yet Yahyaoui further criticized the administration on the basis of judicial issues in Tunisia in an interview with Jeune Afrique published in August 2001, thereby provoking the wrath of senior officials in the Ministry of Justice and the regime.[9] Yahyaoui told a number of international human rights delegations that he was summoned to the house of one senior judicial official and forced to sign a statement denying the contents of the article.[10] Proceedings against him were reinitiated in December 2001, and on the 31st of that month, the Discipline Council decided to permanently relieve Judge Yahyaoui from his duties. Remarkably, the administration refrained from disclosing to Yahyaoui the decision to dismiss him despite his repeated requests and the urgent administrative cases initiated to obtain a copy of it.[11] The Administrative Court rejected this request for formal reasons related to its competence to examine in accordance with the procedures for urgent cases (summary court).[12] As for the principal case contesting the termination in the Administrative Court, it was “shelved” due to the administrative judiciary’s then-renowned strategy of avoiding cases that were sensitive for the regime. Hence, it was not settled until after the revolution.

The government did not limit its response to disciplining and removing Yahyaoui; rather, it also attacked the very image of the “rebel judge”, which had begun to form locally and internationally. It did this by continuously propagating different readings of Yahyaoui’s action, particularly the reading that linked his letter to his loss of a major real estate case in one of Tunisia’s courts. The regime thereby tried to portray “the rebel judge” in a different light, i.e., as a judge who only takes action when his personal financial interests are harmed.[13]


After the Letter: From Judge To Hero


In light of the judicial legend that was constructed around his case, the narrative that Yahyaoui himself told us in 2012 is very interesting. It allows us to approach the 2001 incident from a different angle, not to diminish the bravery of this judge, who made great sacrifices in order to challenge a regime in its entirety, but to understand how the collective legal memory turns specific incidents into symbolic milestones that can be invoked in difficult times to strengthen the resolve of independence advocates. This is exactly what has occurred in this case. Yahyaoui explicitly told us that resorting to his letter was as much a strategy to leave the judiciary as it was a criticism of its poor performance. A resignation in the Tunisian judiciary in the era of the Ben Ali regime was ineffectual, he explained, especially when submitted by a judge who, like him, had occupied sensitive positions.

Rather, the resignation fueled the administration’s doubts over the resigning judge. Consequently, the administration then endlessly postponed its acceptance of the resignation and subjected the suspicious judge to all kinds of pressure and harassment. Hence, the best means of quickly leaving the judicial institution was, in practice, committing what we referred to as “judicial suicide”, an expression that Yahyaoui deemed fit. He explained: “In the judiciary, when you present your resignation, they do not respond to you directly. You don’t just present your resignation and leave. You may wait for years before they reply to the resignation…failing to acknowledge resignations was a mode of applying pressure [by the regime]. Those in autocratic regimes dismiss; they don’t accept resignations.”

Yahyaoui added that due to his bitter experience with the administration during his final years in the profession, he had lost hope of any change and believed that reform was impossible. This explains why he took individual action without prior coordination with any of the judges, even those concerned with judicial affairs. He squarely stressed to us that he expected to leave the judiciary in the wake of the letter. Moreover, his original goal was to leave by virtue of the letter, not to change a regime far stronger than himself.

“When I directed the letter, I was prepared and knew that I would be dismissed. Even the positions that were published were just for hype as I had no doubt about the consequence…but I was preparing my soul for something else. I was ready to take my wife and family and move to Europe and not live in Tunisia. I didn’t have the personal capacity to resist the apparatus of a regime like this. My wife, children, and I all had our passports ready to leave the country. The first thing the regime did, while I was still a judge, was to prevent me from traveling. Even before I was dismissed, the first decision the ministry took against me was to bar me from travel, and I remained barred from travel for 10 years, which was harsh. So long as I was no longer a judge and was barred from travel, I had no other path but to resist the regime.”


Of course, my goal here is not to portray Yahyaoui’s action as a product of personal motives, for the desire to leave itself stemmed from his extreme objection to the state of the Tunisian judiciary at the time. My goal is to document the emergence and development of cases of resistance within the judiciary so that we can understand the paths of resistance that judges might take in undemocratic climates. Yahyaoui stated clearly that the notion of resisting the regime, in the sense of fighting it on the ground in order to change or improve it, did not occupy an important place in his thinking when he directed the letter. Rather, the notion arose after he publicized the letter and in the wake of the consequences.

After leaving the judiciary, Yahyaoui found himself a prisoner of the regime, which persecuted him, barred him from travel, and gave him no choice “other than to resist the regime”. He quickly established the Tunisian Center for an Independent Judiciary with a group of jurists and lawyers but without the involvement of any other judges, who were subject to extreme pressure at the time. When we asked Yahyaoui if other judges openly expressed solidarity with him, he said: “the majority shared my position and the Association [of Tunisian Judges] issued several statements, which were hastier and more strongly worded than the Tunisian Order of Lawyers’ statement even though the lawyers were more independent”. But the lawyers had made certain considerations and therefore preferred to hold back, he explained.


Judge Yahyaoui became one of the symbols of the struggle for judicial independence in Tunisia and other Arab countries. His case represents the first precursor of what may be one of the distinguishing features of the Tunisian judicial situation during the autocratic era: its tendency to, on one hand, produce incidents of individual resistance that gradually take on the character of judicial heroics and hence symbolically fuel independence awareness, while, on the other hand, not producing collective action with a fixed identity (such as the Judges’ Club in Egypt during the same era). Even the uprising of the Association of Tunisian Judges’ bureau in 2005 quickly turned into an act of resistance led by some banished judges, with collective action via the association once again vanishing from the judicial independence arena.

Following Yahyaoui’s death, we must recall the bravery of the steps taken and the importance of the sacrifices suffered by this “rebel judge”.[14] His case also allows us to develop alternative hypotheses about the emergence of judicial opposition in undemocratic climates, hypotheses that are more complex than the romantic revolution hypothesis: Was the main catalyst for Yahyaoui’s resistance not the discrepancy between his personal assessment of the perils he would face after directing his letter and the actual perils he did eventually encounter, which hurled him into the position of a resistant judge? Do judges only turn to the street, to associations, to the press, or to any other public space when they fail to instigate change from within the profession? What is the general relationship between judges’ public resistance and resistance from within their profession, and does the effectiveness of each means differ? How can we study incidents of technical resistance that occur within the profession and are not covered by the media? From the Yahyaoui case we can derive some preliminary answers to such questions as we await deeper studies.


This article is an edited translation from Arabic.



[1] The Young Judges phenomenon of the 1970s and 1980s may be an exception to the pattern of individual activism that characterizes the Tunisian judicial situation. The association was established in 1971 and quickly adopted a confrontational tone with the government, far removed from the method of diplomatic and harmonious amiability. Over the course of its history, the association threatened to resort to strikes a number of times in order to realize some of its demands. This eventually culminated in its famous strike on April 10 and 11, 1985. In the wake of this strike, many of the association’s leaders were dismissed, and the Ministry of Interior dissolved the association itself the same year. For more information on this topic, see Wahid al Farshishi’s, “Judicial Independence and the Collective Conglomerates of Judges in Tunisia” in When Judges Come Together, 2009, p. 205-253; also, see: al-Hadi Said’s, The Judiciary: Struggle and Responsibility, Tunis: Muassasat Abd al-Karim ibn Abd Allah lil-Nashr wa al-Tawzi, 1998.
[2] We are excluding a 1992 case that some of the administrative judges mentioned in their interviews. In this case, the head of the Administrative Court was “punished” because the court had issued a number of rulings returning a number of judges from the Young Judges Association to their positions after they had been discharged during the 1980s in the wake of the abovementioned clash. However, this confrontation was confined to the courts and the administrative court rulings that provoked the government. Unlike Judge Yahyaoui’s case, it did not occupy the public sphere. Nor did it receive the amount of local or international media coverage received by Yahyaoui’s case and, in 2005, the case of the Association of Tunisian Judges.
[3] Le Monde, July 13, 2001.

[4] Le Monde interactif, July 12, 2001, and other papers at the time.

[5] See: Salah al-Din al-Jurshi’s, “An Unusual Summer in Tunisia”,, July 17, 2001, visited April 9, 2012.

[6] See, for example, O. Labidi, Le régime disciplinaire des magistrats de l’ordre judiciaire, Mémoire, Université de Tunis, El Manar, 2008, p. 29.

[7] The text of this letter is available on Judge Yahyaoui’s personal blog, visited April 10, 2012.

[8] Note issued by the head of the Discipline Council, Musa Binmusa, July 24, 2001.

[9]  L’Observatoire Pour la protection des défenseurs des droits de l’Homme, Tunisie: l’affaire Yahyaoui. Le combat d’un homme pour l’indépendance de la justice, 2002.

[10] See op. cit..

[11] Olfa Labidi, op. cit, p. 123

[12] Administrative Court, February 20, 2002.

[13] For example, a decision issued by the minister of justice on July 7, 2014, related in a statement by the head of the Tunis Court of First Instance dated July 11, stated that Mr. Mokhtar Yahyaoui undertook several actions during June and July of 2001 to express his dissatisfaction with the civil ruling issued against him in a real estate case that he had initiated. This can, of course, be understood as an attempt by the government to undermine his opposition by portraying it as merely a product of the rage that afflicts any litigant who loses their case and by stripping it of any public interest dimension.
[14] “Juge rebelle”.

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