Tunisian Judiciary Relies on Outdated Law to Combat Exam Fraud
Attorney Walid Arfaoui stated on Tuesday that the Tunisian judicial system still relies on an outdated law dating back to the pre-colonial era to combat exam fraud. He emphasized the need to revise and modernize this law to adapt it to the modern era, characterized by digital transition.
During his appearance on the radio, Mr. Arfaoui clarified that the current fundamental legal text being applied is a beylical decree (Aliot Decree) dating back to October 17, 1941. He pointed out that this text lacks clarity and mentions French schools. The attorney added that this text focuses solely on the crime of fleeing exam subjects or complicity in their disclosure, but is unable to address three major problems: it does not mention modern communication technologies such as earpieces, smartphones, connected glasses, or other means of digital fraud.
Mr. Arfaoui also highlighted that this old law only punishes the act if it is committed within the exam room and does not criminalize preparations or prior organization of the fraud before it occurs. He also noted that it does not address the abuse of power by educational or administrative personnel (director, teacher, supervisor) who may facilitate fraud.
Due to the loopholes in the old text, which limits penalties to fines or imprisonment not exceeding six months, courts are sometimes forced to apply Article 131 of the Penal Code, which relates to the formation of an "agreement or association of wrongdoers" to increase the penalty and qualify the case as a "crime" (criminal), particularly if coordination and external complicity by phone are proven.
He stated that "many lawyers cling to the principle of the legality of penalties (no crime or penalty without prior text of law), which leads some courts to issue acquittals in cases of fraud committed through modern means, in the absence of a precise and explicit text of law criminalizing these practices."
Regarding procedures on the ground, Mr. Arfaoui explained that the head of the exam center does not have the necessary authority to directly refer the student to the public prosecutor. The procedure begins with an administrative report written by the exam committee and transmitted to the supervisory authority (the Ministry of Education), which has discretionary power to examine the file: it can either settle for administrative disciplinary sanctions or transfer the file to the justice system if it deems the act to be a characterized penal offense.
In conclusion to his statement, Mr. Arfaoui expressed optimism about the new draft law submitted to the Assembly of Representatives of the People (ARP) to reform the judicial system against fraud. He emphasized that "this new project is in the right direction as it establishes progressive penalties that can reach up to five years in prison, explicitly criminalizes the use of modern technologies to ensure equal chances and the value of scientific diplomas, and toughens sanctions against any public agent who exploits their position to facilitate fraud (whether directly or through negligence and failure to supervise)."
As for its entry into force, the attorney estimated that "the new law, in the event of its adoption in the near future, may not apply to the current baccalaureate session (this year) due to the principle of non-retroactivity of laws, but it would be effective from the next school year."
