Engaging Tunisian Judges to Guarantee Respect for Economic, Social and Cultural Rights

When Mohamed Bouazizi set himself on fire nine years ago after he was refused an audience with the governor’s office in the rural town of Sidi Bouzid to reclaim his vegetable cart, initially confiscated by the police, he inspired riots across Tunisia. The protests saw people demanding a solution to the high unemployment rates, long-standing inequality, corruption, poor living conditions and a absence of political freedom.

Although Tunisia’s democratic transition has advanced in several areas since then, the enduring shortage of a credible institutional response to meet citizens’ demands for Economic, Social and Cultural Rights (ESCR) still causes widespread frustration and has been at the core of recent uprisings. Justice sector actors play an important part in meeting those demands both through lawyers’ protection of their clients’ rights and through judges’ adjudication of ESCR-cases. The judgement on cases such as social security claims, the right to water, education, non-discrimination, and human rights protections are vital to ensuring citizens’ rights vis-à-vis the state and therefore, their trust in the democratic system to deliver on the promises of the Jasmine revolution.

In late 2018, ILAC’s project “Enhancing Knowledge and Application of ESCR in Tunisia” was launched through a workshop to support Tunisian judges and to open a space in which they could address the application and integration of international and national laws on ESCR. The project, supported by ILAC, IBAHRI and OHCHR, aims at strengthening the role of judges in promoting and protecting human rights and using international law to adjudicate violations to ESCR.

One takeaway from the first workshop was that the main obstacle for the application of ESCR in Tunisia is the lack of documented judgements made based on the International Covenant on Economic, Social and Cultural Rights. Although the Tunisian administrative judges, participants of the workshop, understand the importance of judging based on international frameworks on ESCR, the absence of precedent for the practical integration of international and national laws poses a challenge on the integration of both laws.

   Administrative judges are protectors of rights and liberties and they have to apply all tools available to protect the citizens. We have to see international law as part of the national law, a part of one unified legal system. As it stands, judges tend to focus only on national law. There is a need to encourage the younger generation to view both systems in an integrated way”, said Mrs Sameh Ferjani, judge at the Appellate Chamber and former International Law professor.

Heavy workload and shortage of time to research and be updated on international legislation are obstacles:

   If the judges refer only to national law, they cannot find the right solution for a case. However, due to the heavy workload of most judges, they tend not to have time to research how international law could be applied in each case. This kind of workshop is a good opportunity to update their general knowledge on ESCR”, completed Mrs Nadja Khoufi, judge at the Appellate Chamber and former Human Rights Law professor.

President of the Third First Instance Chamber, Mr Hicham El Hammi, clarified that although Tunisian judges, civil society and the media, have promoted the fulfillment of the International Covenant on Civil and Political Rights, ESCR has not been on the agenda. Yet, the realistic fulfilment of civil and political rights requires Tunisia to ensure an adequate quality of life for its citizens, which in part is guaranteed through the protection of ESCR. He also stated that the main challenge is to update the judges on international law, mobilise their support for it and make them conscious of the necessity to guarantee the right to good health, good education, adequate housing and work in accordance with international law.

Continued public dissatisfaction with economic and social conditions in the country is one repercussion of the arduous democratic transition in Tunisia. Strengthening the role of judges and lawyers in promoting ESCR and other human rights helps them to meet the public’s demands for economic, social rights and gain their trust on the Tunisian judiciary.

While this project is a step in the right direction, continued engagement in post-conflict countries is a priority for ILAC. Supporting Tunisian efforts for rule of law reform is a key ingredient in our partnership over the coming years and ILAC is a committed partner

This is a three-year project funded by the Swedish International Development Cooperation Agency as part of ILAC’s MENA Programme.