Eyes on Political Parties and Community Forces to Raise their Voices Demanding the Withdrawal of the Decision to Form the Supreme Constitutional Court
Following what was spread in media channels since the beginning of last April regarding the formation of the Supreme Constitutional Court, a number of human rights organizations and civil society coalitions gathered in a meeting, held at the headquarters of the Independent Commission for Human Rights on 03/04/2016, during which a written memo was sent to Mr. President expressing that they were surprised by the secrecy that surrounded the formation order, and demanding that the formation of the Supreme Constitutional Court necessarily come as a step subsequent to the restoration of constitutional life, which is manifested in carrying-out general presidential and legislative elections and reunifying the Palestinian judiciary. The Constitutional Court should not be formed/founded on a political basis through which political parties would seek to control this court in its capacity as a body that guards the Basic Law and protects public rights and freedoms and ensures their impartiality, integrity, and independence.
In light of proceeding with the formation of the court without regard for the views of Civil Society Organizations, the same organizations and coalitions sent another memo to Mr. President on 12/04/2016, demanding that the Presidential Decree regarding the court formation be withdrawn and not put into practice due to the serious consequences such an action would lead to given the political fragmentation that is witnessed in the country, and stressing that forming the Supreme Constitutional Court should be done slowly and when all of the necessary constitutional requirements are available; national reconciliation in the forefront.
The organizations and coalitions that sent the memo are: Palestinian Bar Association, Independent Commission for Human Rights (ICHR), Palestinian NGOs Network (consisting of 130 CSOs), Palestinian Human Rights Organizations Council (PHROC) (consisting of Al-Haq, Women’s Center for Legal Aid and Counselling, Ensan Center for Democracy and Human Rights, Al Mezan Center for Human Rights, AlDameer Association for Human Rights, Palestinian Center for Human Rights, Defense for Children International-Palestine, Jerusalem Legal Aid and Human Rights Center, Addameer Prisoner Support and Human Rights Association, Ramallah Center for Human Rights Studies, BADIL Resource Center for Palestinian Residency and Refugee Rights, Center for Defense of Liberties and Civil Rights “Hurryat”), MUSAWA – The Palestinian Center for the Independence of the Judiciary and Legal Profession, Human Rights and Democracy Media Center “Shams”, Civil Commission for the Independence of Judiciary and Rule of Law “ISTIQLAL”, and MIFTAH Organization.
For the second time in a row, no attention was paid to the opinion of the mentioned organizations and coalitions; Mr. President issued decision no. (57) / 2016 regarding the formation of the Supreme Constitutional Court on 31/03/2016, and it was published in Issue no. 120 of the Palestinian official gazette on 26/04/2016, effective as of the date of issuance.
It is noteworthy that the law on forming the Constitutional Court was, and still is, the subject of legal debate since 2005. In that year, controversy began over the need for a regulating law for the Supreme Constitutional Court and its formation. Here, we would like to refer to the memo which MUSAWA sent on 30/03/2005 to the Steering Committee for Judicial Development and Justice and the Legal Committee of the Palestinian Legislative Council (PLC), which was an outcome of many legal discussions and dialogues organized with the participation of constitutional law experts from Egypt and Morocco, the PLC’s legal department, the Ministerial Reform Committee, the Independent Commission for Citizens’ Rights, Birzeit’s Institute of Law, UNDP’s judicial development project, Supreme Court judges, and a large number of lawyers and law professors. These discussions emphasized that there is no need to form a Constitutional Court or enact a law concerning the matter, based on several political and legal considerations which were published in a special publication under the title of “Problematics of the Palestinian Judiciary between Assessment Requirements and Legal Provisions – MUSAWA’s publications in April 2005”.
The controversy ended with the passing of the Supreme Constitutional Court Law No. 3 (2006) without putting the formation into practice, which means that a Supreme Constitutional Court was not formed and acting in accordance with the provisions of the Basic Law continued; Article 104 in specific, according to which the Supreme Court was entrusted with powers to carry-out the duties of the Supreme Constitutional Court until it is formed. Controversy continued over Law No. 3 (2006) in terms of its operation and content. Here, we would like to refer to the recommendation given by international experts who are specialized in constitutional law, which calls for avoiding rushing into the establishment of a Palestinian Constitutional Court given the state of division and suggests that the Supreme Constitutional Court Law No. 3 (2006) be reconsidered, for it entails provisions that need amendment in order to guarantee the appropriate legal basis for establishing a Supreme Constitutional Court in Palestine when the legal, constitutional and political requirements for its formation are available. The aforementioned recommendations were given at the end of a specialized workshop, conducted by MUSAWA on the 11th and 12th of May 2009, in cooperation with the Faculty of Law in Cairo University and with the participation of current and former judges of constitutional and supreme courts; law Professors from South Africa, Canada, Spain, Britain, France, Switzerland, Jordan, Egypt, and Palestine, including Palestinian experts in constitutional affairs who contributed in preparing the Palestinian Basic Law and members of the Palestinian National Council (PNC); in partnership with Britain’s International Bar Association; and with the support of the European Union. All of the aforementioned unanimously agreed that the Supreme Constitutional Court Law No. 3 (2006) entails many legal loopholes, which requires the passing of a new law by the Legislative Authority, adhering to the common legislative procedures. Besides, they unanimously agreed that there is no need to establish a Constitutional Court in light of the political division and the absence of the necessary legal, constitutional, and political requirements to do so. The proceedings of the workshop/seminar and its recommendations were published in Issue no. 9 of Eye on Justice, published in June 2009, in addition to a relevant memo, titled “Available Legal Mechanisms to emerge from the Palestinian Crisis”, which was sent in writing on 05/02/2009 to Mr. President and representatives of political parties. This memo was issued by participants in the legal encounter/meeting organized by MUSAWA in Limassol-Cyprus on the 25th, 26th, and 27th of January 2009, with the participation of experts in constitutional law, international law, and political science from Egypt, Morocco, Lebanon, Iraq, Jordan, Birzeit University, Al-Najah University, Arab American University, and Al-Quds University, in addition to international constitutional-law experts from Switzerland, Britain, Ireland, and Cyprus, and finally lawyers.
Discussions on the formation of the Supreme Constitutional Court ceased as a result to this debate, but it was provoked once again in 2012 after Mr. President issued a presidential decree regarding the amendment of the Supreme Constitutional Law that stirred controversy at the legal and constitutional levels, which required that Mr. President respond to the requests, memos, and visions of CSOs. Eventually, the mentioned decision was suspended. Here, we would like to refer to the memo which MUSAWA sent to Mr. President on 08/11/2012, explaining the need to take the necessary time before issuing any presidential decree regarding the Supreme Constitutional Law and its formation, also instructing the President’s legal counselor to organize a broad legal and societal dialogue in order to reach a national consensus concerning the formation of the Constitutional Court and the ideal legal formula for its organization. This memo was published in Issue no. 14 of Eye on Justice, which was published in February 2013.
Once more, debates regarding the matter ended as the Supreme Court continued to carry-out the tasks of the Supreme Constitutional Court pursuant to the provisions of Article (104) of the Basic Law.
However, controversy sparked again in 2014 after Mr. President issued an amending presidential decree of the Supreme Constitutional Court Law on 20/06/2014. Again, he responded to the demands of CSOs by not publishing the law and halted any efforts to form the Constitutional Court or amend its law through a presidential decree. Here, it is worthy to refer to the memo which MUSAWA sent to Mr. President in writing on 02/07/2014, demanding that the presidential decree be cancelled and that the President’s legal counselor be assigned to set a broad societal dialogue in order to reach a national consensus concerning the formation of the Constitutional Court, the ideal legal formula for its organization, and the right timing to do all of that. This memo was published in Issue no. 7 of Eye on Justice, which was published in July 2015.
In 2015, Mr. President formed a committee to prepare the Palestinian Constitution for the purpose of forging a new social contract (the Constitution of the State of Palestine). The committee issued two different versions, the last of which was issued in September 2015 and included a legal provision regulating the mechanisms for adopting/approving the Constitution, which stated: “This Constitution must be approved by the committee responsible for preparing the Constitution and presented to popular referendum. If the referendum could not be held for compelling reasons, the Constitution is presented to the PNC for approval, based on a decision by the Constitutional Court. If the PNC could not be held, it is approved by the Palestinian Central Council (PCC)”. It is noteworthy that not any form of societal discussion or dialogue was organized regarding either of the two versions, and no measures were announced regarding the matter, whether these measures were taken in the past or will be taken in the future. MUSAWA presented the mentioned Constitution to experts in constitutional law from Egypt and Tunis, and examined both versions. In that matter, MUSAWA has several remarks, most notably is the fact that all of the constitutional provisions proposed by the committee were extracted from the Egyptian Constitution 1971, and with all due respects, the committee did not give attention to suggestions concerning the regulating provisions of the rights, freedoms, and judiciary in the forthcoming Constitution of the State of Palestine, which were officially submitted by MUSAWA to the committee in July 2015.
Palestinian legal professionals, human rights organizations, and CSOs were all surprised by the issuance of the aforementioned presidential decree to form the Supreme Constitutional Court, especially that the decision did not wait for the approval or issuance of the Palestinian Constitution, there wasn’t any legal or societal dialogue in terms of the constitutional regulation of the state authorities, there is a political division, and the requirements necessary for the formation of the court were not present.
As an independent and non-governmental watchdog, we at MUSAWA stress our adherence to what was stated in the two memos which had already been submitted by the human rights organizations and civil coalitions to Mr. President, prior to and following the announcement of the formation of the court. Adding to these reasons, we believe that the decision to establish the Supreme Constitutional Court was issued in a time where the necessary legal, constitutional, and political requirements to do so were still not available, considering the following:
1- Palestine is a state under occupation, its sovereignty is incomplete, and if we look at the geographical divisions stated in the Oslo Accord and the subsequent accords we can clearly see that its actual authority over its region is incomplete. Palestine’s sovereign authority is limited to area A, so to speak, which is barely equal to one quarter of the total area of lands located in the northern occupied territories.
The Constitutional Court is a national supreme body that protects the Constitution along with the rights and freedoms of citizens, and guarantees the principles of separation of powers and good governance. The nature of its work is legal, political, and sovereign, as customary for any Constitutional Court and pursuant to the Supreme Constitutional Court Law No. 3 (2006) (still a matter of dispute) which states that the court shall have jurisdiction in interpreting the provisions of the Basic Law and other laws in the event of a dispute over the rights, duties, or competencies of the three authorities (second paragraph of Article 24). According to the first paragraph of the same Article, the court shall as well supervise the constitutionality of laws and regulations; declare any regulation or action that is contrary to the Constitution in whole or in part as unconstitutional; and declare any law, decree, rule, regulation, or decision as unconstitutional. In these cases, the court’s ruling shall be binding on all authorities, including the absent Legislative Authority or any other body considered as competent according to Article 25 of the same law.
Given all that, it is inconceivable to apply all of the aspects mentioned above unless national independence is achieved, or at least having the three authorities present (the Legislative Council is absent, the Judicial Authority is torn apart, and the same applies for the Public Prosecution). Therefore, it is impossible to speak of the completion of building a legal State founded on the principle of separation of powers in reference to what has already been said.
2- It is inconceivable that the Constitutional Court would be able to fulfill its duties in light of the current political and geographical division. Also, given that there are two separate opposing governments divided between the Gaza Strip and West Bank, two separate opposing judicial systems, two separate public prosecutions, two judicial police forces, and two separated conflicting administrations that do not recognize one another.
3- Given the inability to implement its provisions in any part of the region and by any party, authority, or administration, it cannot be imagined that the Constitutional Court would be able to play its national sovereign role. Also, it is inconceivable that any of its provisions would be implemented under the current judicial and political divisions; not any of its provisions would be implemented in the Gaza Strip (southern governorates).
4- It is inconceivable that the Constitutional Court would be able to fulfill its duties before enforcing the agreed-on Constitution, passing a new agreed-on law, renewing the legitimacy of the entire political system, holding general presidential and parliamentary elections, and achieving the will of Mr. President which is expressed at the UN and many other occasions and which stresses the vitality of holding elections in order to renew the legitimacy of the system and establishing governing institutions based on a free popular will.
5- It is inconceivable that the Supreme Constitutional Court would be able to fulfill its duties unless the court and its members operate independently from all political parties, especially the governing parties since their performance is in turn subject to the supervision of the court, which must maintain its independence in terms of structure and performance.
6- It is inconceivable that the Supreme Constitutional Court would be able to fulfill its duties before achieving reconciliation at the political and social levels, and embodying social harmony under a new social contract or a new agreed-on Constitution.
7- It is inconceivable that the Supreme Constitutional Court could be established given the absence of all requirements and in accordance with the President’s beliefs, manifested in not establishing the court since 2006, also in agreeing to cancel the amending presidential decrees of the Constitutional Court Law.
All of the aforementioned reasons are obstacles that still need to be overcome; their negative effect is still there. Furthermore, despite the binding constitutional rules which state that elections must be held every four years, general elections are still absent and so is the PLC since 2006, due to political reasons that cannot be examined in this context.
8- Establishing the Constitutional Court without taking into consideration what has already been mentioned might entail a prejudice to the principle of constitutional equality since the court’s provisions will not be effective due to the division, which might contribute to the legalization of the division, turning it into a separation. This will lead to serious consequences, jeopardizing the entire Palestinian national project and deepening the centralization of powers indefinitely. This centralization includes manifestations of an authoritarian ruling which is inconsistent with the constitutional principles and international conventions which Palestine has acceded to. Also, it represents a jeopardy to the principle of peaceful rotation of power through periodic elections and subject to the legal duration of mandate. This is in addition to infringing the rights and constitutional freedoms of citizens, which deprives the Constitutional Court of its competencies, roles, and authorities, and
9- It cannot be imagined that the Constitutional Court would be able to fulfill its duties without having the necessary technical, logistical, and financial capacities; which cannot be borne by the state treasury.
10- The need for a Constitutional Court is not conceivable given that the Supreme Court is fulfilling the duties of the Constitutional Court pursuant to the provisions of Article 104 of the Basic Law, and taking into consideration the modest number of constitutional disputes.
11- It is inconceivable to turn to the establishment of a Constitutional Court where there is no urgent need that justifies such an action or gives it the necessary legitimacy while conforming to the provisions and rules of the Basic Law.
Accordingly, we at MUSAWA believe that establishing the Supreme Constitutional Court in this time entails grave risks and serious consequences which might impair the unity of the community, the principle of the rule of law, and the national project, necessitating political parties, parliamentary blocs, law professionals, and all of those who are concerned about legal and constitutional public affairs to join-in and take part in the two memos which were sent by legal institutions and societal coalitions to Mr. President demanding the withdrawal of the decision to form the Constitutional Court, which was issued on 31/03/2016.
According to the provisions of the Administrative Law, Mr. President, as the person who issued the decision, has sixty days to withdraw the decision as of the date of its issuance. Establishing the Constitutional Court should be done slowly and patiently when all of the necessary conditions and requirements are available, and a broad national societal legal dialogue mechanism should be adopted to ensure societal consensus regarding the Constitutional Court Law and the right timing for its establishment.