Ethical law education is at risk, warns professors’ petition

Law professors, human rights lawyers and civil society groups have published a petition demanding the release of political prisoners in Tunisia, warning that such democratic regressions harm both the practice and teaching of law to the new generation of students.

Published earlier in June, the petition, signed by 56 of Tunisia’s law and political science professors, which has been sent to University World News, follows an escalation in the arbitrary detention of critics and opponents of the government led by President Kais Saied, which suspended Tunisia’s Parliament in 2021 and dissolved it in 2022.

Detentions and prosecutions of opposition politicians have followed, notably in December 2022 with the arrest of former prime minister Ali Larayedh, a leading member of the Muslim democratic party Ennadha.

Since then, human rights organisations such as Amnesty International and Human Rights Watch have called for his release and that of some 30 subsequent detainees.

One of the authors of the petition is Sana ben Achour, a recently retired professor of public law at the University of Carthage and a civil society activist. She told University World News the law and political science professors who signed the petition called for the freeing of the political prisoners “because they have not been through the correct legal procedures nor passed through an equitable judicial process”.

What the petition says

The petition, dated 8 June, criticises the president’s accusations against political prisoners for being “traitors and conspirators”, believing that “history has condemned them before judgment”, thereby creating “unprecedented pressure on justice”.

The petition further quotes Saied: “Whoever has the audacity to acquit them is their accomplice.”

The lawyers’ main complaint is that the prisoners have not received due process and these accusations are against the principle of the presumption of innocence. The petition cites eight points of law, with key concerns being the use of the Terrorism Act of 2015 as grounds for prosecution and that individual rights to assembly and free speech have been fundamentally undermined by the president’s actions.

Ben Achour has written widely about her concerns for President Saied’s regime leading Tunisia towards a new state of totalitarianism.

For her, Saied’s popular image as a lawman is at odds with reality. She told University World News that Saied “speaks a lot about law but he doesn’t practise it. He has no respect for the law, or human rights, nor dignity. He has no real sense of the nature of law, so the rule of law has not been respected at all.”

Impact on the teaching of law

The former legal professor believes that the political arrests are not just endangering human rights and the rule of law in Tunisia but will damage the ethical teaching of law in Tunisian universities: “If jurists do not speak up and denounce these things, I say that it is impossible to present our lectures to our students, and we lose our legitimacy. Moreover, you do not have any credibility in legal discourse,” she said.

Ben Achour has published and commented widely about her concerns that Tunisia is slipping into an authoritarian system in the Tunisian press, drawing parallels with the rise of Adolf Hitler and the Nazi party through “entryism”, that is, seizing power via democratic elections and formal procedures and never letting go.

She said that Saied’s invocation of “exceptional measures” to dismiss his prime minister and parliament and rule by decrees, “made me recall the [end of the] Weimar Republic of Germany”.

She underscored the need for a just and independent justice system that is ethical and equitable to prevent the state devolving into tyranny or dictatorship: “It is important to not obey injustices. There is a danger that, if you accept injustice, there is a real danger of totalitarianism.”

‘Defenders of liberty’

Another senior legal professional with major concerns about Tunisian politics, but who did not write or sign the petition, is the former bâtonnier (leader) of the Tunisian Order of Lawyers (the national bar association), Abderrazzak Kilani.

He has been in exile in France, having been tried and sentenced in a military court for a heated exchange with a police officer when he was trying to see his client the Ennadha politician Noureddine Bhiri in hospital during his detention in January 2022.

Although Kilani’s judgment was overturned by the military court of appeal in November 2022, the public prosecutor has once again appealed. The case is now with the Court of Cassation, and Kilani is, therefore, still at risk.

Kilani, who continues to practise law, told University World News: “Lawyers are the avant garde [advance guard] when there are human rights infractions and have been present en masse defending these political cases.”

He explained that the role of lawyers as defenders of human rights has been central to Tunisia’s 2011 Jasmine Revolution and its subsequent post-2011 democracy.

The first article of the decree law of 20 August 2011, following the ousting of former dictator president Zine el Abidine ben Ali, states that “the work of a lawyer is free and independent; to defend the law and freedom is a fundamental role”.

“This consecrated the profession for the defence of liberty and human rights,” he told University World News.

KIlani fears that Saied’s constitutional changes and prosecutions of political figures undermine what he sees as the fundamental ethics of legal practice that were promulgated in the 2011 decree law and the 2014 democratic constitution.

“This [principle] has to be accepted as the basis for educating and training lawyers,” said Kilani. He said that legal practitioners need, not just to teach law and human rights, but to lead by example: “You have to do this work of defending human rights when teaching young students.”

Unfortunately for some lawyers, this has found them being prosecuted or even imprisoned, “There are some lawyers who are being pursued in the courts for their defences. Ines Harrath, Islem Hamza, Ayachi Hammami, Abdelaziz Essid, have files against them. These are the great defenders of liberty,” said Kilani.

Legitimacy at stake

Ben Achour said that not all legal practitioners share her or Kilani’s opinions: “The dogmatic jurists don’t worry about the legitimacy or the general application of the law.”

She is concerned that the current situation can become normalised among the younger generation who have had very little experience as adults of a democratic Tunisia, and the 10 years of Tunisia’s first independent judicial system.

Meanwhile, detentions continue. Among the 30 political prisoners cited by Amnesty International and Human Rights Watch is the former speaker of parliament and Ennahdha leader, Rached Ghannouchi.

Ghannouchi was sentenced to one year in prison on May 15. Other prisoners include: academic and co-founder of the National Salvation Front, a pan-political opposition movement, lawyer and former secretary-general of the centrist Democratic Current Party Ghazi Chaouachi; judge Bechir Akremi; and public law professor Jaouhar ben Mbarek – all facing terrorism allegations.

Only Ghannouchi’s case has gone to trial. However, the court failed to notify his defence counsel of the hearing, so he was sentenced in absentia without defence, according to reports.

That same day, Kairouan-based radio journalist Khalifa Guesmi had a one-year sentence increased to five years under the terrorism act for “disclosing confidential security information”.

Guesmi, who is currently still free is appealing the extension of his sentencing and the toughening of the charges from a criminal case to a terrorist crime at the Court of Cassation.

Ben Achour commented: “Terrorism laws are not being used well. You cannot apply terrorism laws to people democratically expressing their political opinions or those speaking publicly at press conferences on the radio or TV.”

She lectured at a faculty of juridical, political and sociological sciences, politics and sociology in Tunis, the same faculty where President Saied taught a course on constitutional law, which he quit to pursue his presidential election campaign in 2019.