2022-02-16

West Bank

West Bank / Announcement / Core Program / position paper

The Decree-law on State Lawsuits Gives the Judiciary the Power to Legislate in Violation of the Basic Law and Violates the Principle of Equality among Litigants

On 07.02.2022, the President issued a Decree-law without number for the year 2022 concerning state lawsuits that includes 14 articles. As we reaffirm our principled position refusing the issuance of  Decree-laws or laws by members of the Gaza Legislative Council, based on the constitutional standards, values and principles, and the foundations and requirements of the state of law that are based on the implementation of the principle of separation of powers and the rule of law, and the integrity and independence of the judiciary, which restricts the power of legislation and supervision to the elected legislative council, and despite the futility of discussing the texts of Decree-laws which we regard as born dead and non-existent since these were issued by a non-competent body to its issuance, and as they represent a blatant assault on powers and competencies of the legislative authority, and an encroachment of the determinants and conditions regulating their issuance according to the provisions of Article 43 of the Basic Law. Still, for the purposes of contribution to the clarification of the legal shortcomings and loopholes contained therein in the context of raising the societal collective legal awareness of the risks thereto, we are accustomed to observing them and saying our word regarding such shortcomings and risks, and in this context without going beyond its frame and purpose and after having observed the said Decree-law, we point out the following:

First: the preamble, we do not see in the attribution of the Decree-law to the Palestinian Liberation Organization (PLO) Basic Law more than a political and not a legal purpose, and it would have been more useful to rely on the Declaration of Independence as a constitutional document that, together with the Palestinian Basic Law, constitutes the social contract for the Palestinian National Authority (PNA).

1. The preamble did not clarify the legal text to which it is based from the Amended Basic Law for the year 2003 and its amendments.

2. The preamble did not refer to the constitutional obligation requiring the presentation of the Decree-law to the Legislative Council in its first session after the former’s issuance, and although the lack of reference to that does not constitute an exemption from the obligation to presentation, it does predict a lack of political will and intention to conduct legislative and general elections as a constitutional requirement and right of citizens.

3. The attribution of the Decree-law to what it called the review of the opinion of the Supreme Judicial Council received by the Presidential Office on 07.02.2022 (the day the Decree-law was issued), constitutes a flagrant contravention of the provisions of Article 100 of the Palestinian Basic Law, which, according to its explicit text, limits the role of the Judicial Council to expressing an opinion on draft laws that regulate any matter of the judiciary and the public prosecution exclusively, and, like other enforced constitutional principles in other countries of the world, prohibit the judicial authority from interfering in the legislative process. Therefore, this attribution is considered a violation of the principle of separation of powers and of the core of polity and the conventional constitutional principles in the state of law, not to mention what this attribution implies about regarding the opinion of the Supreme Judicial Council as a source of legislation in contrast to the axioms, foundations and constitutional principles, in addition to its contradiction to the role assigned to the judiciary, which should not be the power undertaking the legislation and its implementation, besides what such attribution predicts of indications about  the consolidation of powers in the hands of one party, which undermines the Basic Law and the Declaration of Independence as a whole.

Second: What was stated in Article 1 about considering the PLO a department of the State, with all its departments, institutions and all institutions affiliated to it being subject to the jurisdiction of the regular courts in the PNA, constitutes a serious transgression of the status of the PLO as a person of public international law and that the PNA is a subsidiary of the PLO and not the opposite, and the PLO will enjoy this capacity until the national independence of Palestine is achieved. Only then will the organization achieve its purpose and the constitution of the independent State of Palestine shall be enforced, especially that any matter related to the PLO according to its Statute falls under the core of the competence of its institutions, and in this case, it is the Palestinian National Council that is competent to issue all that is related to PLO’s  policy, plans, programs, commitments, and rights, therefore, what was mentioned in the said matter has political and legal risks that it would have been better not to have fallen into.

Third: The qualification of the Attorney-General as representative of all state departments, including the legislative council and the judiciary itself, oversteps the principle of separation of powers and leads to the dispersal of effort, as the representative of the judicial authority in its administrative decisions towards judges is the head of the Judicial Council or a Supreme Court judge chosen by the Council, whereas the representative of the judiciary in a financial dispute that arises between the judiciary and its judges is the Attorney General (according to the Decree-Law), and the court that considers both disputes is the same court, the thing that will lead to the dispersal of efforts and affect the independence and prestige of the judiciary, and therefore what was stated in the second paragraph of Article 2 oversteps the principle of separation of powers and infringes upon the powers of the legislative and judicial authorities.

Fourth: What was stated in Article 5 of the Decree-Law involves a serious infringement of the provisions of the Basic Law and the rights of citizens and constitutes a clear violation of Articles 10 and 32 of the Basic Law, as this text prohibits citizens from filing any civil lawsuit related to compensation for human rights violations, which is protected by the aforementioned Article 32, which states: “Any violation of any personal freedom, of the sanctity of the private life of human beings, or of any of the rights or liberties that have been guaranteed by law or by this Basic Law shall be considered a crime. Criminal and civil cases resulting from such violations may not be subject to any statute of limitations. The National Authority shall guarantee a fair remedy to those who suffer from such damage.” Whereas the text of Article 5 of the Decree-law prohibits the courts from hearing any (civil) lawsuit against state departments, whether original or opposite, unless it is for the purposes mentioned in the text exclusively and does not include claims for compensation for human rights violations.

Fifth: Violating the principle of equality by explicitly violating the provisions of Article 9 of the Basic Law and the core of its constitutional principles, that was described as the “jewel of constitutions”, and this specification occurred in Articles 5 and 6 of the Decree-law:

A. Paragraph 4 of Article 5 required the citizen (plaintiff) who is filing a claim prevention lawsuit against state departments to make a deposit of the requested amount claimed in the court box or provide bank or judicial bail, whereas Article 6 exempted state departments from providing any bail of any kind.

B. Article 6 exempted state departments from all other fees and expenses of their lawsuits and such exemption was not granted to citizens filing lawsuits against state departments.

C. The Decree-Law did not refer to the entitlement of the plaintiff who wins their lawsuit against state departments to the fees of a lawyer, although Jordanian Law No. 25 of 1958, which this Decree-law came to amend guaranteed such a right and expressly stipulated it in article 10 of it, thus the Decree-Law overturned a right of litigants without legitimate support or justification.

D. Article 8 of the Decree-Law provided that the court, by its decision or at the request of the Public Prosecutor's Office, may hear state lawsuits as a matter of urgency and deprived the plaintiff or defendant of the right to request the consideration of their hearing as a matter of urgency, in violation of the principle of equality, fair trial guarantees and guarantees of access to justice.

Sixth: what Article 7 of the Decree-law stipulates that state departments are obliged to provide the Attorney General or his deputies with all necessary papers, documents, proofs and information, entails tiresome and dispersal of effort, and it was necessary not to mention the words "or those who act on his behalf from the prosecutors", because the State departments deal with the Attorney General and he is the one who has to refer the papers and documents to those who will be in his place in following up with the case.

Seventh: What Article 13 of the Decree-Law stipulated about the suspension of the entry into force of the Government Legal Proceedings Law No. 25 of the year 1958 and its amendments, does not act as a repeal or amendment, but rather go to a work suspension, which is contrary to the principle of the temporal application of legislation.

Therefore, in the face of these loopholes and maleficence, we believe that the Decree-law, in addition to its contradiction to the constitutional principles as to jurisdiction and the justifications of issuance, involves many violations and shortcomings that affect human rights and the principles of the state of law, which require its repeal and non-publication.

Issued on 16.02.2022

MUSAWA