2020-06-15

West Bank and Gaza Strip

West Bank / Announcement / position paper

A Decision by The Transitional Council that Lacks Legitimacy and Constitutionality and Must be Annulled

On 11 /6/2020, the President of the Transitional High Judicial Council issued a circular entitled "Blogging on social media", in which he compelled the court presidents and judges not to address any subjects related to the judiciary or the public authorities on social media, or else they will be held accountable. Having reviewed the provisions of the circular, which were implemented by referring several judges to the investigation for expressing their opinion on a judicial issue on their personal Facebook pages, we believe that this circular is part of a series of successive circulars issued by the President of the Transitional High Judicial Council since 2005, during his presidency of the High Judicial Council, which prevented judges from participating in any legal meeting or workshop except with prior authorization from him. In subsequent circulars, he prohibited judges from addressing any matter related to the judiciary on social media, until he issued this circular, by which he prevented judges from discussing any public affairs related to the authorities, especially the executive and the judicial authorities. The content of those circulars violates the principles, provisions, and values of the Basic Law, particularly, Article 10, which governs and protects citizen’s rights, article 32, which provides that “any violation of any personal freedom, of the sanctity of the private life of human beings, or of any of the rights or liberties that have been guaranteed by law or by this Basic Law shall be considered a crime that may not be subject to any statute of limitations while obliging the National Authority to guarantee a fair remedy to those who suffer from such violations, and articles 9 and 26, which ensure equality among citizens without distinction, and guarantee the citizens’ right to participate in political life, to form societies, to hold public positions, without distinction and following the principle of equal opportunities, and to express their opinion in all matters related to the present and future of their country and their people.

Although this circular is more serious than the circulars issued earlier, it just like them, as it contradicts the international covenants and conventions to which the State of Palestine is a party, especially the international bill of rights and its components: the Universal Declaration of Human Rights, the International Covenant on Civil, and Political Rights and the International Covenant on Social, Economic and Cultural Rights, violates the judicial principles that represent the core of the humanitarian law, such as the rule established by the European Court of Human Rights, “It is the duty of judges, not only their right, to express their views on issues of concern to public authorities, including criticizing the judiciary itself, as such matters are of critical importance, since they are directly related to the public interest, which requires it to be commissioned for free debate”, deviates from the political will established by democratic civil States, which allocate large portions of their public budgets to reward judges for their contribution to the community dialog, including criticism of all aspects of the performance of public authorities, including the judicial authority, and abandons the approach of jurists and law professors who believed that commenting on and criticizing judicial decisions serves the endeavors to establish a culture of human rights and the rule of law. 

We affirm that the only case, in which a judge must not express his /her opinion in public affairs, is expressing is opinion in a case before him or one of his/her colleagues. Otherwise, the judge is free to express his/her opinion, just like any citizen, who has been granted the right to freedom of opinion and expression, as a fundamental constitutional right that is no less important than the right to life and human dignity. Recalling that the laws in force, in particular the Code of Civil and Commercial Procedure, contain explicit provisions compelling judges to recuse themselves from a case if he/she has previously heard the case, among other causes. In addition, we note that the essence of the judicial function is to serve the rights of the people, not to serve the personal interests of its incumbent, that judicial incumbents are presumed to have the ability to recognize the scope and limits of their freedom of expression, and that the judicial administration is supposed to trust its incumbents’ ability to separate the wheat from the chaff and to draw a distinction between permissible and non-permissible. It is worth mentioning that the judiciary is one of the authorities, whose performance shall be monitored and criticized by any citizen, bearing in mind the difference between judicial work, i.e. adjudication of disputes, which is subject to the conscience of the judge, thus it is impressible to interfere in it, and the political and administrative performance of the judicial administration, which is subject to official and legislative oversight, thus it is the citizens’ right to express opinions in their regard and criticize them.

Based on the foregoing, MUSAWA- The Palestinian Center for the Independence of the Judiciary and the Legal Profession believes that the mentioned Circular has no real value, and therefore it should be put aside and repealed immediately without delay, as it implies obscurantism, supremacy, and unlawful acquisition of powers that lacks the minimum requirements of legitimacy and constitutionalism. How is it supposed to meet those requirements, while It tampers with the right to citizenship, do not consider judges as citizens, violates the constitutional rights of both judges and citizens, hinders the development of legal philosophy, turns judges into workmen, limits their ability to think and innovate, deprives them of their independence, and affects their national sentiment and sense of community. Moreover, the Circular involves authoritarian methods rejected by both public and judicial offices, embodies the policy of subordination and loyalty, threatens the judges’ employment and personal security, and promotes a culture of backwardness and servitude. Thus, we shall compel the Transitional Council to cancel it immediately by calling on the community to confront the council’s policy of ignorance and servitude, which contradicts the Declaration of Independence and the Basic Law, demoralizes the system, causes the loss of citizens' trust in the judiciary and the judicial system, and constitutes an attempt to control the rights of others, to restrict creativity, and to undermine human values and dignity. Not to mention that this circular shall deepen the crisis of governance, which may contribute to paving the way for chaos and lawlessness, especially in light of the existential threat to our people who are keen for freedom, dignity, justice, and life away from bullying and corruption. Thus, this Circular is a fault that requires accountability. 

This Muzzling Circular Shall Be Repealed Immediately And The Rights Of Citizens, Including Judges, Shall Be Protected And Guaranteed.

Issued on 15/6/2020

MUSAWA