2017-06-15

Ramallah

West Bank

His Excellency Prime Minister Dr. Rami Hamdallah;
The Honorable Affiliated Ministers;
By His Excellency Minister of Justice Mr. Ali Abu Diak,

Subject: the draft decree-law amending the Judicial Authority Law, proposed by his Excellency the Minister of Justice

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession extend their greetings to you, noting that on 14/06/2017 we received a letter, reference no. 599, in writing from his Excellency the Minister of Justice, to which the draft decree-law mentioned above and an explanatory memo was attached. In his letter, the Minister asks MUSAWA to give their opinion on the aforementioned draft.

After examining the Minister’s letter along with its attachments thoroughly, MUSAWA stresses its legal position as a non-governmental, independent and professional watchdog organization that is committed to the provisions of the Declaration of Independence, the Basic Law, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the international treaties and conventions related to human rights and the independence of the judiciary, which serve as an umbrella for the right to litigation and access to justice; the constitutional rights and the rules of good governance; the foundations of a State of law particularly those related to a civil democratic regime built on the principle of the rule of law; the separation of powers; the independence of the judiciary, knowing that the judicial function is a right that belongs to the society rather than a privilege for both the governor  or the judge; and the peaceful transition of power through periodic public elections so as to ensure the lawfulness and legitimacy of the political system. Furthermore, MUSAWA confirms its commitment to the constitutional principles which guarantee the independence of the judicial authority, as they are considered a right for the State; a manifestation of its sovereignty where no other authority shall interfere; and a safety valve for the society. Therefore, these principles are ought to be protected, and so does the independence of the honorable judges; away from any subordination, influence or threat to their security in its broadest sense; in adherence to the provisions of the law and to their conscience; and away from the tendencies of the executive authority so as to ensure the avoidance of a totalitarian regime.  

In reference to the provisions of the Basic Law and the aforementioned legal references which relate to rights and freedoms and set the boundaries of the three authorities, we remind you of paragraph 4 of Article (71) of the Basic Law which states that each Minister shall exercise the power to propose bills and legislation within their respective ministry and to present them to the Council of Ministers, which in turn shall have the right to transmit draft laws to the Legislative Council, to issue regulations and to take necessary actions to implement laws, as stipulated in Article (70) of the same law. This means that the Council of Ministers or the Minister shall not propose bills outside the executive scope. The role of the Council of Ministers is limited to mere proposition and not approving or taking legislative action. Also, it does not fall under the Council of Ministers’ authority to approve or recommend legislation for issuance by Mr. President, particularly those related to the structure and authority lines of the other two authorities (legislative and judicial), considering that any legislation related to these authorities is a continuation and a key constituent of the Basic Law (the Constitution). The parliament or the Legislative Council are at the heart of the legislative jurisdictions. Therefore, they shall not be amended or tampered-with by the executive authority, including both the President and the government who, according to the provisions of Article (43), shall not approve or recommend the issuance of ordinary draft-laws, let alone the approval or issuance of decisions or laws that are substantially connected to the Basic Law (the Constitutional / Social Contract). Needless to mention MUSAWA’s commitment and well-declared demand to stop the issuance of presidential decrees or the issuance of laws by members of the Legislative Council in Gaza under the pretext of the current division, which deepens the division even further, embodying separation and making the totalitarian regime official; a regime that violates and abolishes on the ground the foundations of the rule of law, including the Basic Law itself.

Not to detract from MUSAWA’s stance, the contents of the draft and its explanatory note clearly demonstrate that the real objective of the draft decree-law is to transform the judiciary into a service facility, detracting from its nature and powers, and turning the judicial employee merely into a worker who has lost his independence and security. The draft also constitutes a clear announcement of the government's desire to abolish the judiciary as an authority. In the absence of the Legislative Council, the government will have absolute independence in governing all aspects of life, which threatens the security and stability of the society.

We point out that the High Judicial Council, the Public Prosecution and the Bar Association all oppose the draft. This opposition is clearly stated in the media, social media channels, and official letters sent from the aforementioned pillars of justice to your Excellency and to the Legal Adviser to the President, which MUSAWA has learnt about. MUSAWA hopes that these letters be made available to the public in adherence to what has been said above; the judicial function is a right for citizens, and we do not perceive any legal justification for discussing the texts and provisions of the draft, as it is unlawful in its entirety, in addition to being issued by an unauthorized body. Moreover, it involves the danger of turning the political system into a dictatorial one, which is unacceptable for anyone with a clear legal and national conscience. 

Accordingly, MUSAWA demands that your Excellency and the honorable ministers that the draft decree-law be abolished and removed from the government’s agenda.

With all due respect,

Issued on 15/06/2017

MUSAWA