Take courage friends. The way is often hard, the path is never clear, and the stakes are very high. Take courage. For deep down, there is another truth: you are not alone.
Rev. Wayne B. Arnason
Exquisite timing.
I was returning to The Hague from Tunis following a three-day training of Tunisian lawyers (29 September to 1 October), when I read that family members of seven imprisoned Tunisian opposition figures submitted a communication to the International Criminal Court (ICC) to investigate political persecution and human rights violations by President Kais Saied’s administration – not that I expect the ICC’s Office of the Prosecution (OTP) to do anything soon, if it decides to do anything at all. Rare is the occasion where a communication is acted upon, even when meritorious. The OTP can only do so much. And if perhaps it decides to do something, expect a frustratingly long preliminary examination, which, for all intents and purposes, can be nothing more than internet surfing and looking at open-source material. Even if the matter progresses, the journey leading to potential charges takes years. Communications, however, do serve a purpose beyond their intended design – they bring international attention, occasionally contributing to a tempering by those who could find themselves in the OTP’s crosshairs.
I was in Tunis playing a small part in the International Bridges of Justice’s (IBJ) Advancing Access to Justice in Tunisia (AAJT) initiative, funded by the United Nations Democracy Fund (UNDF), and hosted by the Tunisian National Bar Association (Ordre National des Avocats de Tunisie) and Tunisian Association of Young Lawyers (Association Tunisienne des Jeunes Avocats).
Context
Tunisia, the vanguard the 2011 Arab Spring, was on the brink of sustainable political change as democracy seemed finally within reach. The whole Middle East had been swept up in the euphoria, the promise, the hopeful inevitability that the era of the autocratic strongman supported by the military and coterie of willing enablers, sycophants, and opportunists had run its course. Phony one-party elections would give way to an inclusive multi-party electoral process with peaceful transfers of power, with illiberal democracies transitioning to liberal democracies.
Tunisa was the poster child. Lessons were set to be learned and emulated. But democracy is finicky: like orchids, democracy needs some sunlight (transparency), not too much heat (factionalism), attention, and patience. Democracy must be nurtured with care, understanding and perseverance. Entrenched old habits must cease. Differences in opinion and dissenting voices must be tolerated, not asphyxiated. The rule of law must be embraced. Fundamental human rights – especially due process and fair trial rights – must be afforded fully and unreservedly.
Not so in Tunisia – as elsewhere in the Arab world (consider Egypt or worse yet, Syria), where hopes ran dry. Since 2011, there have been 10 different prime ministers. There was hope that constitutional law professor (ironically) Kais Saied on becoming President in 2019 would be attentive to democratic principles – that perhaps with his legal background he would be an agent of change, a steady hand at the helm steering the ship back on the Arab Spring democratic course. Not so.
Seemingly, President Saied justifies constitutional transgressions and human rights violations by stretching and contorting the law to fit untenable legal reasoning, masquerading illegality as legality. Curiously strange, on 25 July 2021, in what has been dubbed the self-coup, for no apparent legitimate cause he suspended the parliament and dismissed his prime minister. This hardly augurs well for the rule of law, for a vibrant and independent judiciary, for enjoyment of fundamental human rights, for contributing to a resolute, sustainable, and pulsating democracy.
Not quite a mirage, the Arab Spring has proved to be more hope than delivery, more vision than achievement, more academic than practical. Yet the promise remains. Having sniffed the scent of democracy, even if quickly dissipated on the breeze, the Tunisians I met spoke of their profound disappointment in the failure of the Arab Spring to usher in much-needed systemic changes to make Tunisa a more liberal and more promising democratic state. But, as distant as meaningful change may presently seem in Tunisia, the overwhelming desire for dignity, justice, and equality remains as real as palm trees in the desert.
IBJ’s AAJT initiative was a small step in nudging along the rule of law and in advancing access to justice, particularly to those most in need; ordinary, indigent suspects, accused, convicted persons, who day in and day out are on the receiving end of some of the most egregious human rights violations. How better to help them than by empowering criminal defense lawyers (defenders) with comparative adversarial tools and methods, strategies, and tactics in preparing and presenting their cases zealously, diligently, and ethically. But this is just a small part of IBJ’s long term approach in advancing sustainable systemic institutional improvements and greater and early access to justice in Tunisia.
Aside from empowering defenders with increased capacity to provide skilled representation to accused individuals from vulnerable communities, the aim is to also enhance respect for the due process and fair trial rights of suspects and accused through the provision of early access to justice (often ignored or overlooked), and by increasing the awareness of people living in Tunisia (including non-nationals, such as migrants, refugees, and undocumented persons) to their due process rights under Tunisian and international human rights law. Working in partnership with the Tunisian National Bar Association and the Tunisian Association of Young Lawyers, IBJ will design and implement the AAJT to include activities such as: implementing training programs for defenders; developing a legal information services smartphone app to connect lawyers and clients, enhance client understanding of their rights, and track data to monitor case impact; fostering free legal representation for vulnerable detainees; and engaging in a public legal rights awareness campaign via radio and social media.
IBJ’s experience with reform in other countries suggests that without a concerted outside effort for change, criminal detainees will continue to be a low priority for the government. Tunisia is no exception. With manifold problems in its criminal justice system, such as excessive pre-trial detention, prison overcrowding, inadequate access to legal aid, and insufficient awareness of legal rights, Tunisia lags in the fundamental human rights department.
As part of the AAJT initiative, following a model that has been successful in other countries, IBJ will:
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- leverage its JusticeHub digital application, a repository of online legal resources and community of expert justice practitioners, to implement a strategy that convenes a multi-stakeholder alliance to provide early, efficient and high quality legal aid to detainees in Tunisia;
- develop the Tunisian JusticeHub app by adapting a previously developed IBJ app to provide legal rights information to public, and connect lawyers to lawyers as well lawyers to the public in Tunis;
- build capacity of Tunisian lawyers in criminal defense best practices, collaborate with government and other key stakeholders in the criminal justice system, and adapt existing legal training resources for the Tunisian context, such as creating and disseminating a practice manual for defenders tailored to Tunisian law and procedure;
- implement a legal rights awareness campaign using social and broadcast media;
- provide early legal representation to vulnerable detainees in Tunis; and
- use data and digital tools to monitor and evaluate progress.
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This mission was just the first step, but a vital one in building bridges and laying the ground for future collaboration and cooperation with all relevant stakeholders.
The training
Consistent with past trainings and based on a tried and tested formula, this training was designed to instill confidence, promote camaraderie, and build national and international networking bridges, while also equipping lawyers with added arrows in their defense quiver.
Before the training officially got underway, IBJ hosted an event to launch its public rights awareness campaign with representatives for the Tunisian Bar Association, the Association of Tunisian Young Lawyers, representatives from the National Centre for the State Courts in Tunisia, Tunisian Forum of Economic and Social Rights, and the United Nations Development Program. This was fascinating. Despite the governments’ open assault on democratic values and the erosion of the rule of law, despite the arrest of the previous President of the Tunisian Bar Association, and despite the arrest of political opposition leaders, the speeches and discussions were about how to empower and strengthen the legal profession to meet the challenges of revitalizing the rule of law, promoting international human rights standards, and providing greater access to justice to all Tunisians, especially the most vulnerable.
The training was kicked off with IBJ founder and CEO of IBJ Karen Tse and International Program Director Sanjeewa Liyanage focusing on community building, contextual analysis, visioning, and action planning exercises. This part of the training has several components requiring interactive and group participation. Briefly, they are: appreciative inquiry; sharing our stories; past, present and future trends; reflection and sharing of values; visioning-imagining the ideal justice system; formulating goals and objectives; and action planning and networking. This is a vital component of IBJ’s training, especially for introductory trainings in places where lawyers, and in particular defenders, are under threat, exposed to danger for merely doing their job, isolated and removed from the protections offered by the bar, inundated with feelings of dejection and hopelessness that come with representing indigent individuals in criminal justice and judicial systems that pay lip service to fundamental human rights and dignity. In particular, these community building exercises help defenders discover themselves deeply, analyze and understand trends affecting them, articulate the values that keep them going, visualize what they aspire as a functioning justice system, formulate goals and objectives, and finally to organize themselves as a community of practice to work towards a practical and feasible plan of action.
As for my bit, I focused on five topics: rights of the accused and early access to counsel; Tunisian law, standards and practice; rights and responsibilities of defenders; universal/international norms and standards; interviewing techniques; how to interview a tortured/traumatized client; developing the theme and theory of the case; and effective investigation techniques. Though Tunisa has a civil based system based on the French model, the aim of the training was to share adversarial modalities and to view them through the Tunisian criminal procedure and practice with the assistance of two very able and experienced defenders, Ms. Kaouther Sgahier and Mr. Abdelaziz Jaziri, adding valuable context and nuance. From the comments and questions during my presentations, it was obvious that the participants – all young, ranging from one to ten-years experience – were eager to learn adversarial skills and approaches which could, with appropriate modification and improvisation, be used by them.
It was also an opportunity to brainstorm and think outside the box on how to meet certain challenges, such as the constant refusal of judges to summon critical witnesses for viva voce testimony as opposed to merely relying on a statement taken by the investigative judge. Since I am big on making the record, I suggested a technique I first introduced in Cambodia to the Cambodian Defenders back in 1994: cross examining a document.
Since civil law judges are expected to get as close to the truth as possible, rather than insisting on the witness appear to be questioned by the defense lawyer, appeal to the judge’s sense of justice and duty and ego by suggesting that were the witness in court, his/her Honor would want answers to the following questions. In the request, make clear that the judge in seeking the truth and in ensuring that justice is done, assuredly would engage the witness is a series of questions aimed at establishing witness’ credibility, veracity, lack of consistency, potential benefit in the outcome of the trial, etc. Then list the series of questions, both leading and non-leading based on the witness’ statement(s), as well as other witness statements and documents that expose contradictions, uncertainties, gaps, etc. Explain in the request the consequences that will likely flow from failing to call the witness to answer these and any relevant follow-up questions. Even if the judge refuses to call the witness, the request becomes part of the record. Also, along with giving an oral closing argument (pleading as it is referred to), submit a written supplement that also makes reference to the written request, arguing that the absence of answers to all issues raised in the questions you requested the judge to ask the witness demands the non-consideration of the witness’s testimony, and perhaps also show (depending on the substance and importance of the witness) not only the denial of confrontation and denial of due process, but the absence of sufficient evidence to find guilt to an intimate conviction. On appeal, especially at the third instance, the Court of Cassation, this sort of record could be the tripwire for a reversal of a conviction.
There were other interesting exchanges of ideas and potential approaches. For me it was also a valuable learning experience. Just when I think I fully appreciate the civil law procedure and practice having spent nearly 30 years observing, learning, and practicing it (albeit mostly through hybrid procedures), there is always something more to learn, a local nuance or practice that challenge orthodoxies. And for this I am indebted to the participants, my Tunisian co-trainers, and IBJ’s in-country coordinator, Ismaël Benkhalifa, who patiently assisted me in understanding the Tunisian criminal procedure and practice, as he also filled in as an interpreter for over 10 hours of in-depth discussions with my Tunisian counterparts.
Parting remarks
Overall, I was impressed with the commitment of these young lawyers. They clearly understand the import role they play, and must play, if Tunisia’s Arab Spring is to be revived. While the way is hard, as Rev. Wayne B. Arnason notes in his poem (recited by Karen Tse at the end of each IBJ training seminar), the path has become a bit clearer thanks to the UNDEF for enabling IBJ’s AAJT initiative – or should I say this contribution to an Arab Spring Revival. As for the Tunisian defenders, they know that they are not alone.
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