The Head of State, omnipotent leader if necessary and sole master on board since the coup of July 25, 2022, has just agreed, by Decree-Law No. 2022-35 of June 1, 2022, “in the event of an emergency, or a threat to public security or to the higher interests of the country and on the basis of a reasoned report from the competent authorities (go figure out which ones) the exorbitant power to dismiss (i^faa) any magistrate “because of an act attributed to him and which is likely to compromise the reputation of the judiciary, its independence or its proper functioning”. All this, not without excluding from any recourse its decisions of revocation until an irrevocable criminal judgment, that is, the one which can no longer be the subject of an appeal. by which he disavows his own newly created Provisional Superior Council of the Judiciary, over which he has the upper hand (Decree-Law n ° 2022-11 of February 12, 2002) -, he dismisses 57 magistrates [Décret n° 2022-516 du 1er juin 2022] that he charges, pell-mell, in a vehement nocturnal diatribe, with corruption, protection of terrorists, involvement in smuggling, obstruction of the functioning of justice, harassment, bad morals and drinking. It goes without saying that this purge aims to bring recalcitrants to heel and boost the popularity of a leader who, despite his denials and his dishonest triumphalism, suffered setback after setback at the occasion of its “electronic consultation in support of change” with only 500,000 participants and especially of its funny National Dialogue for the New Republic to which the powerful trade union center of workers (the General Union of Tunisian Workers (UGTT) refused to participate in its selective form and instrumental spirit.
The point here is not to return to the authoritarian drift of July 25, 2021, nor to the assault of a leader above the law, but to challenge the false claim to immunize the decrees of revocation from any legal recourse, even temporarily. This is without taking into account the rampart represented by the case law of the Administrative Court on the appeal for abuse of power (REP) and the sanction of legal non-existence for confiscation of skills.
The recourse for abuse of power: A permanent way of controlling legality, open without a text and which can only be set aside by an express text
The general principle is that the recourse for abuse of power is open without text and can therefore only be excepted by an express text of legal value greater than or at least equal to that which gave jurisdiction to the Administrative Tribunalin this case, to a law: Law No. 72-40 of June 1, 1972 as supplemented and subsequently amended, in particular by Organic Laws No. 96-39 of June 3, 1996 and No. 2002-98 of November 25, 2002. Two conditions are required to dismiss the appeal and justify the inadmissibility of an action for annulment before the administrative jurisdiction: Its exclusion by an express text of indisputable legality.
However, on examination, the new decree-law 2022-35 did not expressly rule out the appeal for abuse of power by simply prescribing that “the presidential decree relating to the dismissal of a magistrate is only subject to appeal after the pronouncement of an irrevocable judgment concerning the facts attributed to him”. What recourses are revocations not subject to? Non-contentious appeals to the author of the decision himself? Contentious appeals before the administrative jurisdiction? Which ? The recourse in excess of power which pursues the annulment of administrative acts and aims “to ensure, in accordance with the laws, regulations in force and the general principles of law, respect for legality by the executive authorities (article. 5 law 72-40)? The compensatory remedy which “tends to declare the debtor administration either because of its illegal administrative action or the work it has ordered, or because of the abnormal damage caused by one of its dangerous activities” (new article 17)?
Faced with the indeterminacy of the reserve, the administrative judge will no doubt oppose his constant case law in the area of appeals for abuse of power to admit his jurisdiction and declare admissible the appeals for annulment that the magistrates affected by the measure could bring. Initiated by the Dame Lamotte judgment (CE February 17, 1950), one of the great judgments of French administrative law, the principle is that the law having “not excluded the appeal for excess of power before the Council of State, the appeal is open even without text against any administrative act and has the effect of ensuring, in accordance with the general principles of law, the respect of legality”. The Tunisian administrative court has had to rule many times in this direction, considering, for example, in the Zaghrouba case against the Superior Council of the Judiciary “that it is consistent doctrine and case law to consider the action for annulment as a permanent means of controlling the legality which extends to all administrative acts notwithstanding the texts in force relating thereto, declaring them not liable to any appeal. It is understood that this cannot be sufficient to immunize (protect) the administrative acts from the control of the judge of annulment whose jurisdiction can only be excluded by an express text. [T.A. aff. n°1500, 26 novembre 1991].
An act subject to the supreme sanction of legal inexistence
This being the case, what is basically the legality of the dismissal of the 57 magistrates? In any event and despite the maneuvers to adorn the collective act of revocation with a “false pretense” of legality, decree 2022-516 remains tainted with such serious, manifest and detrimental illegalities that it incurs much more than the simple cancellation for excess of power, the legal inexistence. Supreme sanction – that the administrative judge generally operates with precaution so much its effects are heavy of consequences -, it is, in the case of the species and in all legal logic, the most adequate sanction and the most consequent. The non-existence, being linked to the seriousness of the attack on the general order of competences (question of public order that the judge invokes on his own), it sanctions, as in the Messaoud el Barkaoui case against the Prime Minister and the Minister of Health, not a simple incompetence but a real usurpation of competences and functions.
Also, he considers “the refusal of the Head of Government to execute the judgments in favor of the applicant as the refusal to make them produce their effects without demonstrating serious difficulties inherent in their application is a manifest derogation from the authority of res judicata and represents a serious attack the principle of the separation of powers and the rule of law, the fundamentals of which are respect for the superiority of the law and the execution of final judicial acts. Also and consequently, it is up to the judge to declare that the administrative act subject to appeal falls into the category of non-existent acts, null and void.. [T.A. aff. n° 12295 du 5 mai 2016].
This usurpation dates back to the coup de force against the constitution of January 27, 2014 which allowed the Head of State, in flagrant derogation from the conditions of the state of exception of article 80, to divert to his advantage the legislative power and to freeze that of the Assembly of People’s Representatives (ARP). The serious breaches of the conditions of article 80 are such that they cancel the very principle of “excused illegalities” in the exceptional regime that some will not fail to raise. In truth, all the acts taken in cascade on this basis are in turn null and void. Because if the state of emergency is a constitutionally framed situation “which authorizes the temporary suspension of the application of the rules which ordinarily govern the organization and functioning of the public powers in order to apply other, less liberal, rules which lead to a greater concentration of power and restrictions on fundamental rights[MrTropetheexceptionpracticedbyKSundertheconditionsthatweknowwasalreadyattheverymomentwhenitwasdecreedastateinfactamisappropriationoflegislativepoweritsconfiscationandusurpationThisabductioncontinuedwiththeaberrantandunqualifiablepresidentialdecreen°2021-117ofSeptember222021relatingtotheexceptionalmeasureswhichdowngradingtheConstitutiontotherankofaninfra-decretalactunconstitutionallyhandedovertotheHeadofStatethelegislativepowerallthelegislativepowerbymeansofdecrees-lawsItsarticle4providesthat[MTropel’exceptionpratiquéeparKSdanslesconditionsquel’onconnaîtétaitdéjààl’instantmêmeoùelleaétédécrétéeunétatdefaitundétournementdupouvoirlégislatifsaconfiscationetsonusurpationCerapts’estpoursuiviavecl’aberrantetinqualifiabledécretprésidentieln°2021-117du22septembre2021relatifauxmesuresexceptionnellesquidéclassantlaConstitutionaurangd’acteinfra-décrétalaremisinconstitutionnellementauchefdel’Etatlepouvoirlégislatiftoutlepouvoirlégislatifaumoyendesdécrets-loisSonarticle4disposeque“The legislative texts are taken in the form of decree-law, they are promulgated by the President of the Republic who orders their publication in the Official Journal of the Tunisian Republic, and this, after deliberation of the Council of Ministers”. With Decree-Law 35-2022, the encroachment has reached its peak. Referring to a constitution from which it has outrageously derogated, to its provisions on the independence of justice, the separation of powers, the statutory guarantees of the functioning of the judiciary, the fundamental rights of the defence, the Decree-Law believed cleared of non-existence the acts of revocation pronounced on its basis. Well no and a thousand times no, because what is built on a null and void act for outrageous derogations from the rules of the organization of public authorities, the rule of law and the separation of powers remains null and void. .
Sana ben Achour
Tunis, 04/06/ 2022