2018-01-17

West Bank

West Bank / position paper

Representatives of over 200 Civil Society Organizations (hereinafter CSOs) – the Civic Coalition for Monitoring Legislation, the Palestinian Human Rights Organizations Council, the Palestinian NGOs Network (PNGO), and the Coalition for Economic and Social Rights– called a meeting at Al-Haq organization to discuss the Decree-Law on the High Criminal Court, which was ratified by Mr. President on 30/12/2017, and was published in the Palestinian official Gazette on 08/01/2018 in complete secrecy and without community consultation. Issuing legislation which violate the rights and freedoms of the people has been the adopted approach for a while now, the Law Amending the Supreme Constitutional Court Law and the Cybercrime Decree-Law as previous examples, which signals the insistence of the executive authority to continue working alone and to establish hegemony over the legislative process, particularly in the absence of the Palestinian Legislative Council (hereinafter PLC). This, of course, contradicts the national policies’ agenda and the government’s legislative framework, which stressed the vitality of adopting a participatory approach to the legislative process.

In their extensive meeting, the concerned CSOs stressed that the Decree-Law on the High Criminal Court infringes the provisions of the Amended Basic Law, the International Covenant on Civil and Political Rights, the Judicial Authority Law, the Law on the Formation of Regular Court, and the Penal Procedures Law. Moreover, the said decree-law puts fair trial guarantees, the independence of the judicial authority, and the proper administration of justice at serious risk. The decree-law must be rescinded for an array of reasons, the most prominent of which are as follows:

1. Under the Constitution, the decree-law shall meet the requirement of “unavoidable necessity”, which in the case at hand is not valid, especially that the decree-law had been on the Council of Ministers’ agenda for over a year before it was ratified and published. In addition, the justifications listed in the explanatory memo attached to the decree-law, claiming to hold the solution for the problems of prolonged litigation and the absence of judges who are competent in serious-crime cases, have no real grounds. Taking all of these cases from the Courts of First Instance and referring them to the High Criminal Court would rather contribute further to judicial bottlenecks and increase the already heavy workload, as well as disturb the proper administration of justice. Not to mention that the decree-law does not address court-memberships in any way whatsoever despite the claims concerning the need for specialized judges, which is why it was issued in the first place. The decree-law states that the court at hand shall consist of judges sitting on the Court of First Instance or higher-ranking judges, meaning that the court would include the already-operating judges themselves, which does not match with the contents of the explanatory memo. Furthermore, the decree-law questions the competence of the judges sitting on the Court of First Instance who have pronounced judgments in thousands of criminal cases. All of this renders the justifications for issuing such a law invalid.

2. The establishment of a High Criminal Court by a presidential decree is in itself a violation of the provisions of the Basic Law, which clearly state in Article (97) that “the law” shall determine the way courts are constituted and their jurisdiction, and not a decree-law Accordingly, the establishment of the court should only happen by a law issued from the Parliament with the purpose of amending the Judicial Authority Law and the Law on the Formation of Regular Courts in order to create the High Criminal Court, if necessary. It should be noted that the PLC has already repealed the Decree-Law on the High Criminal Court Law No. (7) for the year 2006 because of the invalidity of “unavoidable necessity” and the fact that it violated fair trial guarantees, which clearly demonstrates where the legislative authority stands on this decree-law.

3. The decree-law is a blatant assault on the powers and independence of the judiciary, whereby the Attorney General is granted the authority to request the sitting of the court in any of the governorates and in a binding manner, pursuant to Article (3). This violates the provisions of the Judicial Authority Law and the Law on the Formation of Regular Courts, according to which spatial jurisdiction shall be determined by the President of the Supreme Court. The same applies to Article (16) of the decree-law which gives the Attorney General the power to move a certain case from one bench to another one at the same level of the former, which oversteps the authority and independence of the judiciary, and gives the Public Prosecution a very wide jurisdiction as an adversary in criminal cases while it is well known that an adversary does not get to choose their judge. Furthermore, having the power to move cases “during the phase of investigation” contradicts the rules of spatial jurisdiction, as stipulated in the Penal Procedures Law, and it even might indicate the willingness to seek judges who are on the same page with the Public Prosecution in terms of approving requests to extend the detention of the accused.

4. The extensive powers granted to the High Criminal Court, including crimes against the internal and external security of the State (Article 6), raise questions about the actual role this court is intended to play in the future. The said crimes are quite vague and could lead to the politicization of the court’s work, in addition to the entailed violation of rights and freedoms, the freedom of expression in particular. All of this with the purpose of weakening national sentiment and inciting sectarian or racist strife, including cybercrime, which contravene international human rights standards, especially those relating to the freedom of expression, pursuant to the International Covenant on Civil and Political Rights. it should also be borne in mind that the decree-law infringes fair trial guarantees, and that a number of the said crimes are in fact “misdemeanors” and do not fall within the scope of work of the court in the first place. Consequently, the High Criminal Court could serve as a tool to suppress opponents of the executive authority.

5. The decree-law grants the Public Prosecution a wide range of competence, allowing it to take all necessary precautionary measures relating to an incident in the course of the held investigation (Article 7) without clarifying the nature, time limit, or guarantees of these procedures, and without any judicial supervision. The text addresses both individuals and funds, and it authorizes the Public Prosecution to issue travel-ban warrants and pre-arrival screenings in an unrestricted manner and without judicial supervision, in violation of the relevant international standards and the national legislation.

6. The decree-law gives the Public Prosecution the authority to detain the accused after questioning them for a period of four days (Article 8),  which constitutes a retreat from the guarantees the accused is entitled-to under the Penal Procedure Law, which states that the period should be forty-eight hours prior to appearing before the judiciary. In addition, the text interferes with the provisions of Article (9) of the International Covenant on Civil and Political Rights, which tackles the subject of arbitrary detention. The Human Rights Committee, in General Comment No. (35), explicitly stated that the forty-eight-hour period is sufficient for the transfer of an individual and for the preparation for a court hearing.

7. The decree-law violates the guarantees the accused is entitled-to during the stage of investigation by allowing the deputy prosecutor to interrogate the accused in the absence of their defense; that is in cases of necessity, urgency, and fear of loss of evidence (Article 10). This violates the international human rights standards, in particular Human Rights Council resolution no. (13/19), which ensures that access to a lawyer is guaranteed to all persons who are deprived of their liberty from the very moment of deprivation of liberty. The European Court of Human Rights has also asserted that in such situations irreparable harm can be inflicted on the rights (Saldouz vs. Turkey, 36391/20). The basic international principles on the role of lawyers in 1990 affirmed the right to counsel at all stages of criminal proceedings.

8. The decree-law disregards the presumption of innocence, and it deals with detention as a penalty rather than precautionary measure. This is evident in Article (11), whereby the Attorney General or any of his associates to re-detain an accused person who has been released if new evidence against him is found, which would leave no restrictions on the detention period and it would make it subject to constant renewal even after the release of the accused person. The Public Prosecution has also been granted the power to issue release orders throughout the whole investigative period, and therefore the text turns a blind eye to the procedures and guarantees stipulated in the Penal Procedure Law. Furthermore, the decree-law grants the Public Prosecution extensive powers at the expense of the judiciary. Once more, the decree-law takes no notice of the presumption of innocence, fair trial guarantees, the Basic Law, and the Penal Procedure Law, stating that the judgments pronounced by the High Criminal Court are subject to expedited enforceability (Article 17).

9. The decree-law violates the principle of two-phase litigation and denies the accused a phase of litigation by providing that appeals shall be heard under "scrutiny", except for death sentences and hard labor for life (article 19), which puts fair trial guarantees at serious risk as well as turns the Court of Appeal into a court of law, in violation of the Penal Procedure Law and the common international standards, particularly the General Comment No. (32) on Article (14) of the International Covenant on Civil and Political Rights (fair trial guarantees), where the committee asserted that the appeal procedure is a fundamental guarantee of justice in the interest of the accused, which is critical to maintaining public confidence in the justice system.

That being the case, the concerned CSOs stress the following:

1- Demanding that President Mahmoud Abbas repeal the Decree-Law on the High Criminal Court for the invalidity of the principle of “unavoidable necessity” for its issuance; usurping the powers and independence of the judiciary; violating fair trial guarantees; prejudicing the proper administration of justice; and infringing the Basic Law, the international human rights standards, and the relevant legislation.

2- Dealing with the High Criminal Court as an illegal court, and to carry out a campaign of continuous pressure and advocacy, using various legitimate mechanisms and tools with the purpose of delegitimizing the said court, until a decree-law ordering its abolition is issued.

3- Maintaining cooperation with the Bar Council to arrive at a position where lawyers would refuse to appear before the High Criminal Court, aiming at delegitimize the court and mobilizing lawyers to bring down this decree-law.

4- Calling on President Mahmoud Abbas to stop issuing decree-laws; to take serious action towards stopping the deteriorating human rights situation; to begin the restoration of the fractured political system immediately; to re-establish the principles of the rule of law, the separation of powers, and the independence of the judiciary; and to get set for holding general elections – presidential and legislative.

The signatories:

The Civic Coalition for monitoring the Legislative Process, which includes the following members: Al-Haq, Jerusalem Legal and Human Rights Center (JLAC), Al-Mezan Center For Human Rights, Palestinian Bar Association, Al-Marsad, Palestinian Human Rights Organizations Council, Palestinian Non-Governmental Organizations Network (PNGO), MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession, The Coalition for Accountability and Integrity (AMAN), Institute of Law – Birzeit University, Women’s Technical Affairs Committee (WATC) , Palestinian Independent Trade Union (FIUP), MUWATIN The Palestinian Institute for the Study of Democracy, The Palestinian Initiative for the Promotion of Global Dialogue and Democracy MIFTAH, Palestinian General Union of People with Disability, QADER for Community Development, ADDAMEER Prisoner Support an Human Rights Association, Palestinian Governance Institute, Center for Defense of Liberties and Civil Rights “Hurryyat” , Human Rights and Democracy Media Center SHAMS, Stars of Hope Society, Media Development Center – Birzeit University, and the Palestinian Commission for Human Rights as an observer. 

The Palestinian Human Rights Organizations Council, which includes: Al-Haq, ALDAMEER Association for Human Rights,  ADDAMEER Prisoner Support and Human Rights, Al-Mezan Center For Human Rights, Defense for Children International – Palestine Section, BADIL Resource Center for the Palestinian Residency and Refugee Rights, Center for Defense of Liberties and Civil Rights “Hurryyat”, Ramallah Center for Human Rights Studies (RCHRS), Jerusalem Legal and Human Rights Center (JLAC), Palestinian Center for Human Rights, and the Palestinian Commission for Human Rights as an observer. 

The Economic and Social Rights Coalition, which includes: Palestinian Independent Trade Union (FIUP), Al-Marsad, Palestinian National Institute for NGOs, Palestinian Non-Governmental Organizations Network (PNGO), Jawwal and Paltel Workers Union, JDECO Workers Union, NBC Workers Union, Women’s Technical Affairs Committee (WATC), Rights of People with Disability Movement, NAJDEH Association, Ramallah Center for Human Rights Studies (RCHRS), Palestinian Non- Governmental Organization Against Domestic Violence against Women (Al-Muntada), the Palestinian New Federation of Trade Union, UAWC Union of Agricultural Work Committees, QADER for Community Development, Birzeit University Workers Union, Bethlehem University Workers Union, Palestinian Movement, Women Center for Legal Aid and Counselling (WCLAC), Stars of Hope Association, FADOC Palestine, Progressive Labor Union Front Palestine,  Labor Solidarity Group, Labor Unity Group,  Palestinian Working Women Society for Development, Progressive Labor Group, Pulse of Youth forum, MANAJEL Organization, Palestinian Advisory Board for NGO Development, Teachers Creativity Center, Community Media Center, PalThink for Strategic Studies – Gaza, The Freedom Theater – Jenin , Young Men Christian Association (YMCA), The Arab Institution for Sustainable Development, Association of Women Committees For Social Work,  Rural Women’s Development Society, Palestinian Medical Relief Society, Development and Heritage Committee, Young Women’s Christian Association, Physiological Development Association,  Al-Hadaf Cultural Center, Popular Art Center, Financial Sector Workers Union, Union of Palestinian Pharmaceutical Manufacturers (UPPM), Private Health Sector Union, Union for Women Working in the Health Sector, Jerusalem Water Undertaking Workers Union, Tanwer Palestinian Cultural Forum, Fuad Nassar Organization,  Palestinian Bar Association, Burj Alluqluq Social Center Society, Al-Haq, Filastiniyat institute.  

The Palestinian Non-Governmental Organizations Network (PNGO), which includes in its membership 135 NGOs from the West Bank and Gaza Strip.