2022-04-12

Gaza

Gaza / Core Program / position paper

Again, the Exclusion of a Lawyer from Assuming the Post of Magistrate Court Judge despite Having Successfully Passed all the Requirements of the Judicial Competition; Solely for Being a Woman

Your Excellency the President of the High Judicial Council in Gaza and the honorable members of the Council,

Subject: The exclusion of lawyer Maram Maher Shatat/Gaza from assuming the post of Magistrate Court Judge, for being a woman

Once again, a lawyer is denied assuming the post of Magistrate Court Judge in Gaza despite having passed all the requirements and stages of the judicial competition, of which terms and procedures were announced, including passing the written exam and personal interview, and her name being included in the list of successful and qualified candidates for the appointment. The exclusion was made for the sole reason that she is a woman, which constitutes a blatant violation of the provisions of Article 9 of the Palestinian Basic Law, which clearly states, without any difference in interpretation or controversy that: “Palestinians shall be equal before the law and the judiciary, without distinction based upon race, sex, color, religion, political views or disability.”

Furth more, the above-mentioned constitutes a fundamental violation of the principle of equality; the crown jewel of basic constitutional rights, and a clear departure from the text of the fourth paragraph of Article 26 of the Basic Law, which clearly states that Palestinians - without discrimination or exception - shall have the right to participate in political life, both individually and in groups, and in particular they have the right to hold public office and positions, in accordance with the principle of equal opportunities- without discrimination and prejudice to the principle of equality in accordance with the provisions of the aforementioned Article 9 -, the thing that constitutes a violation of the constitutional rights of the citizen guaranteed by the Basic Law in Chapters One and Two thereof, which is considered, according to the provisions of Article 32 of the Basic Law, a crime that neither criminal and civil cases resulting from such violations may not be subject to any statute of limitations and the National Authority shall guarantee a fair remedy to those who suffer from such damage.

Gentlemen; The Palestinian Center for the Independence of the Judiciary and the Legal Profession, Musawa, expresses its greetings, demonstrating its receipt of a written complaint from the lawyer Maram Maher Shatat, stating that she has applied for the judicial competition to fill the position of Magistrate Court Judge and has passed all its stages, starting with the written exam and the personal interview, and her name was mentioned in the announcement of the list of successful candidates who are qualified to be appointed to the aforementioned post on 13.12.2021, and that she was the only female applicant who succeeded among other female applicants and met all the conditions and requirements eligible for her to assume the post, but she was surprised that the recent appointments announced on 20.01.2022 did not include her and that the reason for her exclusion is her being a female, noting that she is still waiting to enjoy her constitutional right and to be enabled to assume the post of Magistrate Court Judge in accordance with the provisions of the Basic Law and the laws in force.

We at The Palestinian Center for the Independence of the Judiciary and the Legal Profession see the decision od exclusion based on the candidate being a female as a non-existent administrative decision, since it entails a serious violation of the provisions of the Basic Law and the applicable laws, the thing that brings it down to the umbrella of the non-existent decisions to which the appeal is not bound by a deadline, in accordance with the principles and foundations governing the appeal of administrative decisions, especially those affecting the principle of legality. In this regard, we point out that the incident of excluding the complainant is the second of its kind for the same reason, which represents a detriment of women's right to assume public posts, a detriment of the principle of equality and equal opportunities, and an absence of the principle of competence in assuming public posts in general and the post of judge in particular.

Referring to the fundamental flaws mentioned in the introduction to this memo, which affected the decision to exclude the complainant, we note that this exclusion also violates the international conventions and treaties to which the State of Palestine has acceded and became bound by their provisions, which justifies labeling it as a departure from the values, principles and rights contained in those conventions and principles that are also guaranteed by the Basic Law in its tenth article, which stipulates in its first paragraph: “Basic human rights and liberties shall be protected and respected.”, and in its second paragraph, it states: “The Palestinian National Authority shall work without delay to become a party to regional and international declarations and covenants that protect human rights.” This negatively affects Palestine’s international relations and weakens international popular and official support for Palestine and its national cause.

This exclusion also affects the status and role of Palestinian female lawyers who constitute part of the standing judiciary, which in is turn constitutes the basis for assuming the judicial post, and undermines the legal rules regulating the legal profession and its role in achieving justice and protecting human rights, and negatively affects the complementary relationship between the legal profession and the judiciary, and also negatively affects the rights and freedoms of litigants, without a legal basis or a legitimate justification.

Based on all that we have clarified above, we demand the cancellation of the decision to exclude the complainant from assuming the post of Magistrate Court Judge and to enable her to enjoy her legal right to assume the post quickly, immediately and without delay, and to form an administrative investigation committee to hold accountable those who prevented her from her right, and to issue instructions and binding decisions to everyone involved in the competitions for selecting judges to strictly adhere to the provisions of the Basic Law under the penalty of accountability, and providing us with your measures taken to guarantee the right of the complainant, embodying the principle of the rule of law as a constitutional principle and as a basis for governance stipulated in Article 6 of the Basic Law, and the prohibition of discrimination of any kind, especially sexism.

With respect,

Issued on: 12.04.2022

 Musawa