2022-03-13

West Bank

West Bank / Announcement / Core Program / position paper

A position paper on the cancellation of civil lawsuits and the conduct of criminal trial procedures during the suspension of work announced by Bar Association 

Following the publication of a bundle of decree-laws amending the judicial legislations on March 6^th, and after the Bar Association examined what was published, it issued a statement considering that these decree-laws came in the context of misunderstanding of the development of the judiciary, and their enforcement would undermine justice and push for the total collapse of the judicial system, announcing the suspension of work before all courts and Public Prosecution for one day in protest at these decrees and serious violations of the Basic Law.

In the same context, a number of judges cancelled civil lawsuits because of the non-attendance of the lawyers who adhered to the decision of the Bar Association which constitutes one of the pillars of the formal justice system, and is considered a standing judiciary helping the judicial authority in achieving justice and applying the provisions of law. That cancellation flagrantly violated the rights of the lawyers and their litigating clients considering that the commitment of the lawyers to the decision of the Bar Association does not constitute a legitimate excuse justifying not appearing before the courts during the suspension of work by the Bar Association. Some judges conducted the procedures of the criminal lawsuits without the presence of the lawyers of the defendants who did not attend the sessions for the same reason, and the judges followed the proofs of the prosecution and conducted the procedures of lawsuits against the defendants and thus deprived them of their right of defense, the thing that undermines the guarantees of a fair trial and breaches the principle of the protection of the right of defense which is guaranteed by the Basic Law and the international charters and conventions, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) that the State of Palestine takes part in and is bound by its provisions.

A number of lawyers addressed the reason behind the judges’ action as being the issuance of a circular from the Chief Justice about the cancellation of civil lawsuits and the conduct of the procedures of penal actions without the presence of a lawyer, whereas some of the lawyers returned the matter to individual jurisprudence of the judges. The strange thing is that the decisions of cancellation were based on what they called unexcused absence and on the consideration of the decision of the Bar Association and the commitment of its members to it as an invalid excuse, considering the absence as a reason for the conducting the procedures of criminal lawsuits without a lawyer.

The Bar Association, in its turn, issued a statement announcing a warning strike for three new days, leaving the door open for a dialogue with other official pillars of formal justice for the purposes of consensus on the possibility of the amendment of decree laws.

We at The Palestinian Center for the Independence of the Judiciary and the Legal Profession “Musawa” view with utmost seriousness the approach and the response of the judicial administration -appointed by the President in contravention of the law- to the Bar Association, including its retreat from is commitments to respect the decisions of the council of the Bar Association, especially those concerning the suspension of work. Besides the violation of some judges to the rights of the litigants, whether by conforming to invalid and inexistent generalizations that affect their independence, or by a flawed individual jurisprudence that is not based on the law and reality. Proceeding with criminal trial procedures without a lawyer is a flagrant deviation from the texts of Articles 14 and 30 of the Basic Law, and a blatant violation of fair trial guarantees and the right of defense, which marks the judgments issued in the absence of the defendant’s lawyer as illegal and illegitimate. Besides what the cancellation of lawsuits entails of prolonging the litigation and the unjustified and unfounded financial burdens endured by the litigant, the thing that affect their right of access to justice and enjoyment of fair trial guarantees. Moreover, it contradicts the claims alleging that the issuance and publication of decree laws aim for the prompt adjudication of cases. The approach of dealing with the lawyers and litigants as such does not only violate the law but also requires accountability for the serious damage it causes to the rights of litigants and for it constituting a fundamental violation of the Basic Law.

Issued on 13.03.2022

                                                                                        MUSAWA