Tunisian Judge Blows Whistle on Judicial Tampering

Ben Ali government steps up harassment of high-court judge

Judge Mukhtar Yahyaoui, known as "le juge rebelle" in the francophone press, is one of the Arab world's leading voices for an independent judiciary and for the rule of law. Last July he wrote a now-famous open letter to Tunisian President Zine Al-Abidine Ben Ali, in which the judge forthrightly condemned the government's constant tampering with judicial process. In his letter, Yahyaoui accused the Ben Ali regime of making it impossible for judges to adjudicate cases properly without political interference. Lack of judicial independence in Tunisia has been reported by a variety of observers, from human rights groups to the US Department of Commerce. But Yahyaoui's open letter marked the first time that such criticism has come from a high-ranking judge.

Since the publication of his letter, Judge Yahyaoui has been cajoled, harassed, unsuccessfully bribed, and physically threatened by the Tunisian authorities. His judgeship was suspended and then revoked, and he has recently been barred from leaving the country. Despite this ongoing harassment he has been busy establishing the Tunisian Center for an Independent Judiciary, of which he is the founding president.

"le juge rebelle"

Mukhtar Yahyaoui is one of Tunisia's most distinguished jurists. After studies in Law and Political Science at the Faculté de Tunis and graduate work at the Sorbonne, he joined the Tunisian bar in 1980. Three years later he entered the judiciary as a trial judge in the Tribunal de Première Instance then moved successively to posts as substitute to the Procureur de la République (district attorney), cantonal judge (district judge), juge d'instruction (pre-trial judge), substitute to the Attorney General, President of the Fifth Penal Chamber, and finally, as President of the 10th Civil Chamber of the Trial Court Tribunal, a post he occupied for three years before his dismissal. Judge Yahyaoui would have been promoted in 2002 to a seat on the Court of Cassation, Tunisia's highest court.

Judge Yahyaoui has never been an active member of any political party in Tunisia. He has the reputation of great integrity and honesty and is the one of the most widely respected judges in Tunisia. One testament to the judge's reputation is that his docket usually had twice as many cases as his fellow 10th Civil Chamber judges. (In Tunis, plaintiff's attorney is allowed to choose the judge who will hear the complaint.)

Open Letter to a President-for-Life

On July 6, 2001, Judge Yahyaoui addressed an open letter to President Zine Al-Abidine Ben-Ali in his capacity as President of the High Council of Judges. The letter  was posted on the internet and widely read both in Tunisia and abroad. It drew an immediate response, prompting an article in Le Monde. On July 12, the Tunisian Ministry of Justice issued a press release that attempted to smear the dissident judge by portraying him as a petty malcontent motivated by the unfavorable outcome of a legal dispute over a parcel of land. The next day, Yahyaoui was summoned before the Inspector General of the Ministry of Justice. The judge maintained his criticism of Tunisia's judiciary and denied the charges that he was acting from personal spite; the judge also launched a civil suit for defamation against the head of the ruling party, the Rassemblement pour le Changement et la Démocratie (RCD). On July 14, Yahyaoui was suspended without salary from his judgeship, with a hearing before the judiciary's disciplinary council scheduled for August 2, 2001.

Leaders of civil society quickly rallied to Yahyaoui's cause. The Tunisian Human Rights League, the Association of Democratic Women and the Tunisian Association of Young Lawyers, and the banned National Council for Liberty in Tunisia all came out in support of the judge, as did numerous lawyers, who formed a defense committee for the judge. Even the usually timid Association of Tunisian Judges voiced its cautious endorsement. In an effort to avoid scandal and publicity, the Tunisian authorities preemptively restored Yahyaoui's judgeship, albeit at another court, the day before his scheduled hearing. It seemed like the end of the story.

A Campaign of Harassment

Here the harassment of Judge Yahyaoui began in earnest. The representatives of the Ben-Ali regime tried to bribe him with a favorable resolution to his land dispute; with an appointment as ambassador to Lebanon; with the opportunity to head a blue-ribbon commission on judicial reform. But these rewards were always held out in exchange for Yahyaoui backing off from the criticisms made in his open letter and his abandonment of all contacts with other dissidents. Yahyaoui soon noticed that he and all his communications were under constant surveillance. His phone lines were periodically cut, his electronic mail was intercepted, his mail was opened, all of which is the usual fate of Tunisian dissidents. According to an investigative report  by Avocats sans Frontières?Belgique and the Fédération internationale des ligues des droits de l'Homme (FIDH), the judge has also been physically threatened into signing retractions of his statements to the global press.

Judge Yahyaoui was also subject to coercion and harassment in his professional life. His chambers were repeatedly broken into and his papers rummaged through. People who visited the judge's office were subjected to surveillance themselves. The authorities attempted to recruit Yahyaoui's fellow judges on the tribunal as informants, luring them with the prospect of promotions and other benefits. His correspondence was opened and then visibly resealed with Scotch tape.

In late December 2001, Yahyaoui was again summoned before the Disciplinary Council. Immediately, the Tunisian legal community and local human rights groups-the Tunisian Human Rights League, of the National Committee for Liberty in Tunisia, and the Tunisian Association of Women for Democracy-all rallied round. The Disciplinary Council's deliberations are not public, but their decision was published by the state media agency the next day: Yahyaoui's judgeship was revoked.

Violations of Human Rights

Since then, the government persecution of the judge has only worsened. On June 6, 2002, Judge Yahyaoui attempted to leave Tunisia to attend international conferences in Paris and Athens, but was held at the Tunis airport and forbidden to depart. His teenage daughter has been harassed while leaving her high school and his nephew Zouhair Yahyaoui, editor of the satirical website Tunezine, has just been arrested, tortured, and sentenced to two years in jail.

In spite of constant harassment and surveillance, Judge Yahyaoui has been a leading force behind the creation of a new Centre Tunisien de L'indépendance de la Justice (CTIJ). This center has 46 founding members, of which Yahyaoui is the president. Its goal is to assemble judges, lawyers, and academics for the purpose of restoring the integrity of the Tunisian judiciary. Not surprisingly, even the straightforward task of registering the group with the government has turned into a tedious struggle with the obstructionist authorities.

The Ben Ali government's harassment of Judge Yahyaoui and his family should be ended at once. He should immediately be reinstated as a judge, and his commendable efforts to register an association to promote judicial independence in Tunisia should be welcomed by the authorities. The CTIJ should be recognized as an independent association. An independent judiciary is essential to a free and prosperous society and Yahyaoui's charges should be investigated and remedied rather than stifled and punished. Tunisia has ratified many international human rights treaties, including the International Covenant on Civil and Political Rights. The ICCPR underscores, in Article 14(1), the necessity of State parties upholding the independence of the judiciary so as to ensure the proper administration of justice. It states: ".In the determination of any criminal charge against him, or of his rights and obligations in a suit as law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law." The U.N. Basic Principles on the Independence of the Judiciary, endorsed by the General Assembly in 1985 stipulate in Principle 1 that ". It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary." Principle 9 specifically endorses the right of judges to "form and join associations . to protect their judicial independence." Moreover, the chronic surveillance of the Judge and his family, the monitoring of his mail, email and phone conversations as well as the clumsy searches of his house and office also violate the ICCPR. The Tunisian constitution itself stipulates that judges not be subject to any other power than the law itself, and upholds the principle of judicial independence.

After Tunisia formed a new Ministry of Human Rights in 2000, its new head, former journalist Slaheddine Maaoui, declared that "We are absolutely opposed to any form of harassment of human rights activists." The case of Judge Mukhtar Yahyaoui has suggested quite the opposite to be true. Judge Yahyaoui has become the victim of persecution because of his commitment to the principles of judicial independence.