2019-09-24

West Bank

Human Rights Defenders / West Bank / position paper

His Excellency the President of the State of Palestine,

The Head of the PLO Executive Committee,

Mr. Mahmoud Abbas,

Subject: Calling the Palestinian Presidency to Discard the Draft Decree-law of 2019 Amending the Judicial Authority Act

MUSAWA- The Palestinian Center for the Independence of the Judiciary and the Legal Profession extends its warmest greetings to your Excellency, noting that the center has received a copy of the draft decree-law of 2019 on amending the Judicial Authority Act and was informed that in its 17th session of 2019 held on 2/9/2019, the Transitional High Judicial Council has assigned the adoption of that draft decree-law to your Excellency, on the other hand, MUSAWA was informed that you have taken a decision not to enforce it in its current form. After careful consideration of the draft’s contents starting with its preamble and ending with its closing article, MUSAWA believes that issuing and adopting such draft decree-law threat the state of law and convert the Judicial Authority to an executive department, which foreshadows serious consequences, or if you allow us, we would describe them as catastrophic in the sense that they squander the independence of both the Judicial Authority and judges, turn them into workmen, ignore the Principle of adjudication of disputes on the basis of law and conscience, and turn the concept of the judicial institution into the semblance of a private project owned by one person  enjoying unlimited powers, which contradicts with the basis of the state of law and good governance, violates the principle of separation between authorities, encroaches upon the substance of the judicial function and the power of the judge to implement the rule of law according what goes together with his/her conscience and understanding of the laws governing the disputes placed before him/her.

Mr. President, arriving at a legal consideration of the draft and a professional opinion in its regard require texts that refute its philosophy and provisions characterized by violating the constitutional principles, which represent a preachment of the International Covenant on Civil and Political Rights, and the international treaties and conventions governing the independence of the Judicial Authority and the judges. MUSAWA, therefore, will only refer to the most prominent risks entailed by the draft, while asserting that we are not providing a comprehensive analysis of all of its provisions- along the following lines:

1. First, the preamble included that the adoption of the draft decree-law is based on the placement of the Transitional High Judicial Council, which represents a grave violation of the Basic Law’s provisions, which conferred the power to suggest draft decree-laws to the members of the Legislative Council, the ministers, the government, or what is decided by the President according to article 43 of the Basic Law, not to mention that none of the Basic Law’s provisions entitled the Judicial Authority of the Permanent/ Transitional High Judicial Council to any legislative powers or authorities, inter alia, article 100 of the Basic Law, whose text provides for consulting the High Judicial Council about draft laws relating to the Judicial Authority, including the Public Prosecution, which confirms that the power to legislate or to suggest legislations are not entitled to the High Judicial Council, as it only enjoys an advisory role in case any bodies competent to suggest draft decree-laws or decree-laws “as a restricted exception”, noting that in legal terms, consultations are not binding. Therefore, what was laid down in the preamble represents a usurpation of another authority's competencies, and contradicts with the logic of the situation, since it is illogical that the Judicial Authority legalizes a law that governs its performance or grants it powers and privileges, inasmuch as legislation, issued by a body legitimizing its actions, shall be marked as biased, protecting self-interests, and evading obligations, which is unacceptable in a state of law and renounced by the principle of separation of powers, besides, your Excellency does not need any authorizations or draft decree-laws proposals provided by any quarter, the fact that parallels with our demand that you do not adopt any further decree-laws.

2. Items (a, b) of the second paragraph of the third article introduced the need to subjugate newly assigned judges to a 3-year probation period, during which, the High Judicial Council may terminate their services in case they were proved to lack the character and fitness portion of the profession, according to a set of considerations set by the council and applied on the judges who were assigned before the issuance of the decree-law. This development entails a violation of the right to equal public service employment and the internationally recognized assessments standards; as it substitutes them with subjective standards that can be solely modified by the council, which is considered one way of self-serving of those entrusted with, in vacant contradiction with the professional standards of integral and transparent assessment, not to mention that the mentioned probation period is not commensurate with the obligations of the judicial profession, and causes anxiety for judges; as the council may execute its powers to terminate their services, putting the independence of judges on the edge of a knife and affecting their ability to adjudicate disputes by law and conscious. Most notably, the draft decree-law contradicted itself as it provided for activating the council’s power in case judges were proved as incompetent during the probation period, then made a further provision that the council can take actions even after the end of the probation period. 

3. In its fifth article, the draft decree-law extended the powers of the Judicial Council by assigning it to identify the jobs considered as equivalent to the judicial work; to enable its employees to fill judicial posts without any standards to follow, which unleashes the council’s power to assign judicial officials according to subjective standards that are not based on any scientific or professional bases.  

4. One of the most threatening provisions of this draft decree-law is the third paragraph of the sixth article, which granted the president the sole power to assign and refer the President of the Supreme Court/ the President of the High Judicial Council to retirement without any placement whatsoever. With all due respect, the draft establishes the subordination of the judiciary to the executive, in addition to violating the equality principle, as it provided that assigning the President of the Supreme Court/ the President of the High Judicial Council is not bound by any age, which raises questions whether the drafter has put the provisions to suit his aspirations.

5. The draft decree-law extends the powers and authorities of the High Judicial Council to include all judges regarding out posting to other positions or courts without considering the judges’ agreement, which turns them into workmen who lack a say in any matters related to their job security and professional rights by referring to articles seven and eight of the draft decree-law.

6. The draft decree-law granted the President of the Judicial Council the power to refer any judge to retirement in case he/she spent 15 years of no service, without considering the judge’s agreement, and to reposition any judge in case he/she spent not less than 10 years of service, besides the power to terminate the service of any judge who does not meet the period required for retirement or reposition and whose annual reports issued by the Judicial Inspection Department have law rates “less than B” for two years in row, which breaches the specialty of the judicial post and the constitutional principles governing it, turning it into an executive post and violating the principle of the irremovability of judges.

7. The draft decree-law included a text discriminating between the Supreme Court’s judges and other judges concerning the retirement age, as in article 12 it was provided that the retirement age of the Supreme Court’s judges is 70, while it was considered 65 for other judges, not to mention that by the third paragraph of the sixth article, the President of the High Judicial Council was relieved from retirement regardless of his age.

8. The draft decree-law repealed the Supreme Court from the composition of tribunals or courts, as all of its jurisdictions were referred to the Supreme Court of Justice and the Cessation Court, which involves a radical and serious amendment to the Law on the Establishment of the Tribunals and the Judicial Authority Act itself, given that the Supreme Court is no longer available in the legal sense, according to article 14.

9. One of the serious manifestations of the draft decree-law is the provision of article 15 on the subordination of the Inspection Department and its connection with the High Judicial Council, which affects its independence and contradicts with its rationale. 

10. One of the manifestations of unilateral hegemonism was represented by article 15 of the draft decree-law, which granted the President of the High Judicial Council the authority of administrative supervision over all judges, as well as granting him the right to impose disciplinary measures, e.g. warning, on any judge regardless of their level, in contempt of the Administrative Supervision Principles provided by Arabic and International Legislation. 

11. The draft decree-law repealed the principle on establishing disciplinary councils by functional titles set by law, as article 16 cancels the role of disciplinary councils and deprives them of their impartiality by assigning the council to establish disciplinary council according to the President’s views and self-considerations.

12. Article 16 of the draft decree-law revokes the principle of establishing disciplinary committees by functional titles fixed by the law, as it provides for assigning the Judicial Council to establish disciplinary committees according to the President’s subjective opinions and views.

13. It is questionable that decree-law no (16) of 2019 was previously abolished by article 19 of the draft’s decree-law issued on 2/9/2019, 10 days before the adoption of the Constitutional Court’s decision, entailing the prior approval of the Transitional High Judicial Council to abolishing the mentioned decree-law and its adherence to keeping decree-law no (17) of 2019 legalized by the Constitutional Court.  

Mr. President, we have highlighted the risks and mistakes provided by this draft decree-law, which if adopted, may turn the judicial authority into a private department controlled by one person, and may turn judges into mere executive employees paving the way to messing with the political and legal systems, not to mention that it diminishes the principle of separating between authorities providing a climate conducive to rampant insecurity and coercion due to the loss of trust in the judiciary, therefore, adopting such draft decree-law shall negatively affect the Palestinian – international relationships since it represents indeed a deviation from all the related international covenants and convections joined by Palestine and to which it is now bound. Based on the foregoing, MUSAWA justifies its insistence on demanding tour Excellency to discard this draft decree-law and take the needed legal action to stop publishing it as a token of discarding it. 

With All Due Respect,

Issued on 24/9/2019

MUSAWA’s Board of Directors