At the end of its session on June 15th, 2016, the Tunisian Temporary Body for the Judiciary issued a statement stressing the need for judges to maintain neutrality regarding all partisan and political activities. The body justified its position by stating that when judges adopt open, public political positions in party meetings and conventions, litigants’ trust in the judiciary and in judicial independence is shaken.

The statement is timed against the backdrop of the body’s fears about judges’ increasing alignment according to narrow partisan labels. In its previous statements and press conferences, the body has taken the view that a judge’s ongoing, established political affiliation should be counted as a serious fault meriting investigation. The body has even enacted disciplinary measures against judges on this basis. Their statement comes as a wake-up call about the dangers factionalization poses to the independence of the judge, and to the judiciary more broadly. It also calls for the need to expedite the enactment of laws guaranteeing the independence of the commission on judicial inspection from executive power, in order to insulate disciplinary procedures for judges from the dangers of being used for political ends.

Political Affiliation or Partisanship?

Factionalism can be defined as active and ongoing affiliation with a political party, by which a judge is brought in direct contact with political work within that party. This affiliation may merely be a matter of carrying a membership card, with the aim of establishing a formal or ceremonial presence within the party. It might also be a more active form of participation in conventions and assemblies convened by the party for the purpose of publicizing its positions, defining its programs, and –in some cases– whitewashing its transgressions. A judge need not even be a party member to engage in such practices.

In most judicial systems, it is agreed that “partisanship” conflicts with the principle of neutrality which every judge must adopt. This is a universal principle and one of the most important moral values of judicial conduct. Indeed, it epitomizes all the moral elements of a judge, as its aim is to guarantee equality between opposing sides. It is because a judge does not align themselves with either side in order to maintain a position of justness and fairness towards them, regardless of ideological or party affiliations.

In recent years, some Western judicial systems have been moving in another direction, taking the view that the Universal Declaration of Human Rights does not exclude judges from exercising the right to expression and belief, and the right to form associations. Western jurists have held that the principle of neutrality does not conflict with a judge’s right to join a political party, so long as it does not affect the justness and integrity of their work. In reality, however, in these Western countries, judges typically join a party based on their opinions and conviction, regardless of the party’s position, its size, or its influence in the ruling government. This is not the case in Arab countries, where experience has shown that the political situation in the Arab region produces judges inclined towards partisanship, because joining an influential, ruling party is a way to attain protection and secure one’s personal interests within the judicial context. There are many examples of this.

Before the 2011 revolution in Tunisia, for example, a number of judges were permitted to join the ruling party (the Constitutional Democratic Rally) as active members, and to appear in the media promoting its meetings and programs. In exchange, they were gradually favored for top judicial positions at a rate that attracted attention when compared with their colleagues of the same class and rank. After the revolution, a number of judges who had been affiliated with the then-dissolved ruling party appeared before a disciplinary council, and the Temporary Body for the Judiciary ruled to dismiss them on the basis of their longstanding affiliation with political parties.

In Egypt, 44 judges were dismissed because they issued statements in support of the sit-in at Rab’a al-Adawiya Square, and denouncing the ouster of Muslim Brotherhood president Mohamed Morsi. The body that ruled for their dismissal justified it on the basis of the judges’ involvement in political work, from which they were prohibited. It should be noted that in these examples, dissolved political parties no longer in power were being put on trial. Punishing judges affiliated with these parties therefore occurred in the context of [a trial of a bygone era].

Yet guaranteeing that the judiciary is independent from political and partisan influences requires more than merely penalizing judges affiliated with a party that no longer legally exists. It also requires confronting judges who are affiliated with parties that are active and currently in power. In the wake of ongoing changes in some Arab states, there has been a growing phenomenon of positioning within the new political parties, which in turn leads to partisan conflicts that extend even to the chambers of the courts, and the growing exchange of threats between those belonging to reactionary and liberal movements. Judges can be seen participating in conventions of parties currently in power, and they appear alongside politicians celebrating national holidays at foreign embassies – in clear contravention of judicial custom, and without their actions being questioned or even attracting notice.

One example of this behavior was outspokenness and candor demonstrated by Egyptian judges in their support for Field Marshal Abdel Fattah el-Sisi, as they called for him to run in a presidential election; an unprecedented violation of judicial custom. While this spectacle was taking place, the investigation was opened into those judges supporting the Rab’a sit-in (which ended in their dismissal).

If it is the case that judges hold political rights along with the other citizens of their countries, it is also the case that they must act differently from other citizens, namely, they must operate in accordance with the principle of neutrality that binds them.

Practicing Politics

A judge can practice politics either by joining the government itself, or by running in legislative or presidential elections. In the first case, in 2011, seven judges were appointed to ministry positions [in Tunisia], alongside the appointment of a number of judges as governors. All of these appointments have negatively impacted the work of the judiciary. Once a judge has spent time working in politics, had a brush with political parties and experienced their enticements, and implemented government programs and strategies (which, in reality, are actually the programs and strategies of the party that created them), it is not easy for that judge to return to judicial work with neutrality or independence. Likewise, these changes negatively impact judges themselves, who find themselves unable to readjust to the difficult conditions of judicial work in the courts upon leaving a ministry position, and the enticements of power. Furthermore, the majority of them refuse to continue working in the judiciary once their appointments are complete. They join other sectors instead.

The anticipated draft of the Basic Law for judges must address the subject of judges’ entering political work: a judge must choose between continuing in the judiciary and believing in its distinguished mission, or leaving the judiciary for politics and never returning.  

Running in Legislative and Presidential Elections

The Tunisian Constitution does not prohibit judges from voting in elections or from running for political office. In the most recent elections, a number of judges ran in legislative and presidential races. They all lost, however, which might be explained by the fact that they all ran as independents, refusing to run as candidates under the umbrella of a particular party. Because judges running for office in the future might rally to political parties as a means of ensuring their success, the Basic Law for judges must address this issue conclusively. It must preserve the independence of the judiciary, distance the judiciary from narrow political interests, and protect disciplinary procedures from being exploited for political means.

This article is an edited translation from Arabic.