2020-06-16

West Bank and Gaza Strip

West Bank / Gaza / Announcement / position paper

Decision that Affects the Security, Independence, and Dignity of Judges and Transcends the Requirements for Reform

Yesterday evening, MUSAWA- The Palestinian Center for the Independence of the Judiciary and the Legal Profession received a copy of the presidential decree (N/N) of 2020 issued on 14/6/2020, after hours of its request to publish it and to allow citizens to view it and assess its consequences, as it assigns ten judges, whose names were previously published by MUSAWA, to undertake legal roles in the state institutions, and assigns the responsibility of implementing the decree to the General Personnel Council, in coordination with the General Secretariat of the Council of Ministers, noting that the decree shall enter into force from its date of issuance and shall be published in the Official Gazette.

Having carefully, impartially, and professionally viewed the decree, we believe that it represents an attempt to legalize the dismissal of a number of judges from their judicial function. However, the goals behind this attempt were not achieved for several reasons. Before going into details, we point out that the decision is an administrative decision, despite the contents of its preamble, which claimed that the decree is based on some legal texts that, instead, revealed its administrative nature that is theoretically subject to appeal before the Supreme Court of Justice, pursuant to the Basic Law, which stipulates that “Laws may not contain any provisions that provide immunity to any administrative decision or action or against judicial review”.

1. The decision is flawed by lack of jurisdiction, as according to the provisions of the third paragraph of Article 23 of the Judicial Authority Law No. 1 of 2002, the President has no authority or jurisdiction to decide or issue a delegation. The delegation decision, as stipulated in the text, is the prerogative of the Minister of Justice, who shall be authorized to make such decision if so required by the national interest, referring to the fact that judicial and jurisprudence principles have established the invalidity of an administrative decision if it is issued by an incompetent authority or if incompetent entities participate in its issuance.
2. According to the aforementioned text, the decision-maker in this regard is the Minister of Justice as required by the national interest, and the need to get the approval of the Supreme Judicial Council of the Minister's decision not amount to the Council being considered as the originator or source of the delegation's decision. Thus, the Transitional Council's delegation decision is perceived as unnecessary, incompetent, and untenable, even if required by the national interest.
3. The legal grounds upon which the decision was based are contradictory. While article 23, paragraph 3, of the Judicial Authority Act, provides that the delegation shall be decided in response to a national need, the second pillar of the decision, as stated in its preamble, is the third paragraph of article 2 of the decree-law No. 17 of 2019, which relates to the prerogatives of the Transitional Council, in particular, the power to dismiss any judge, refer him to retirement, or delegate him to another position, upon a recommendation to the President, in case the Transitional Council find that keeping them in their posts would compromise the dignity of the Judiciary and the citizens’ trust in it. This makes the decision a means of dismissal from the judicial position through referral to another post, thus, the decree-law is characterized by contradiction because it considered the dismissal of judges a national need, and as it was based on paragraph 3 of the 23rd article of the judicial Authority Act and the paragraph 3 of the second paragraph of the decree-law No. 12 of 2019, which both contradict with the contents of the mentioned decree-law, as in its essence, it is a dismissal decree rather than a delegation decree. This contradiction invalidates the decision from a legal point of view, which compels us to call for repealing the decision, not to mention that it was issued by an incompetent body.
4. By invoking contradictory legal texts, the decree-law violates the Basic Law, which makes it unlawful, since the Basic Law prohibits the dismissal of judges except in the circumstances outlined in the law, and based on transparent evaluation procedures conducted following professional standards, including guaranteeing the right of defense, which is a fundamental constitutional right of citizens, public officials and judges alike. Therefore, the decision is based on conflicting legal texts, in form and content, which requires the reversal of the decision
5. The decree contains a number of other contradictory grounds, including a decision by the Minister of Justice, placement by the Transitional Council, and a letter by the Transitional President, which confirms the validity of the decision’s failure to achieve its objectives and the inability of those who drafted it to give their wishes legal support.
6. The decision overlooks the requirements of the public interest due to the contradiction of its grounds, motives, and procedures, especially since it coincided with the issuance of the circular prohibiting judges from expressing their opinions on social networking sites. It also coincides with the referral of some of them to an investigation based on expressing their opinion concerning a judicial, political, and administrative issue.
7. The decree refers to the third paragraph of article 23 of the judicial Authority Act, but merely in a formalistic manner, as it failed to indicate the national need that requires the delegation, if that need was the true reason for issuing such decree, the nature of that need, the public authority that needs it, its purpose, the length of time needed to achieve it, and the nature of the legal role of the judge delegated to fulfill it and guarantee its positive results, particularly since article 26 of the Judicial Authority Act provides that the duration of the secondment may not exceed three consecutive years, which was overlooked by the presidential decision.
8. The wording of the decision reflects the lack of clarity of its purpose, as the text of its first article states that delegation aims to carry out legal acts in the institutions of the State without specifying those acts, the location or jurisdiction of the institutions or ministries where they shall be implemented.
9. The decree seems to favor certain names; it is known that the delegation is a personal decision that relates to the ability, competence, and distinction of the judge to be delegated, whereas it is supposed to indicate the nature of the task assigned to the delegated judge. Therefore, delegating a list of judges without any explanation of their respective roles, the legal need required of each of them, consistent with their abilities to meet a specific national need, since the national needs of different ministries or institutions differ in their nature, and their technical, jurisprudential and legal requirements, which indicates that the decision delegated a list of judges without the national need for such a delegation, and thus, the decision has upset the criteria, which requires a national need to arise as a direct reason for the Minister of Justice to issue his decision on the delegation, not to delegate a list of names in anticipation of having a national need for that. In addition, this collective delegation violates a judicial ruling issued by the High Court of Justice, headed by the President of the Transitional Council, on annulling a decision issued by the Council of Ministers for addressing a list of employees without clarifying the reason for that. This recalls the contradiction that flawed the circular on the prohibition of judges from expressing their views on Facebook, despite a judicial ruling by the Judicial Disciplinary Board that guaranteed the judges’ right to freedom of opinion and expression.
10. The decision is essentially limited to two procedures. The first is assigning a list of ten judges to work in various state institutions and assigning the General Staff Bureau in coordination with the General Secretariat of the Council of Ministers to implement the delegation decision. which confirms that the real objective of the decision is to dismiss the mentioned judges from their judicial functions by transferring them to other state posts without following the established procedures and principles, especially with regard to assigning an impartial entity to conduct an investigation or evaluation of the dismissal decision, following transparent procedures that operate according to recognized legal standards and guarantees of fair and impartial investigation, foremost among which, the right to defense. This indicates that the decision was recommended on the basis of a personal opinion and self-interest that lacks legitimacy, lacks the support of the law, which leads to a legitimate belief that it involves prejudice to the rights of judges covered by the decision. This indicates that the decision is subjective and lacks legitimacy, thus the decree involves prejudice to the rights of the judges addressed by the decision.
11. The decision confirms and refers to the risks implied by decree-law No. 17 of 2019, which were previously identified in a position paper issued by MUSAWA- the Palestinian Center for the Independence of the Judiciary and the Legal Profession, that also indicated its illegality and its negligence of professional reform standards.
12. The presidential decree does not provide for the addressed judges’ retention of their judicial capacity or judicial privileges. Moreover, it does not contain any provisions on the use of national interest. In its first article, the decree limited their delegation to legal positions in state institutions, which entails the abolition of their legal capacity and privileges, thus, referring to the third paragraph of Article (23) of the Judicial Authority Act governing delegation required by a national need constitute more of a window-dressing operation.

In view of the points detailed above, MUSAWA calls for the immediate repeal of this decree-law, given its illegality on the one hand, and the gravity of its implications and its direct negative impact on the independence, security, and dignity of the judge on the other.

NO to decisions that would cause panic and dismay, harm the security, independence, and dignity of the judge, and override the requirements of reform in a way that embodies subordination, bullying, rewarding corruption, and violating the rights and dignity of competent officials.

Issued on 16/6/2020

MUSAWA