2016-03-27

Ramallah

West Bank

Chief Justice and members of the High Judicial Council,

Subject: Enforcement-related funds in courts

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession learned that Bethlehem lawyers suspended work in different courts in Bethlehem, on Wednesday 23/03/2016 and Thursday 24/03/2016, due to a delay in disbursing the sums awarded for their clients in enforcement cases, which were deposited by convicted persons for judgment creditors (clients) as safe deposits in the court’s enforcement fund, pursuant to enforcement cases filed before Bethlehem’s court.

Maan News Agency had published a news report, titled: “Where did the safe-deposit money of Bethlehem’s Court of First Instance go?” Also, MUSAWA learned that the same problematic was revealed in all courts, specifically in Jenin, Hebron, Nablus and Tulkarm.

According to what MUSAWA learned from informed sources, and based on written documentation obtained by MUSAWA, including an official letter sent by former Chief Justice of the High Judicial Council, Ali Muhana, to the Minister of Finance and The National Bank (TNB), under the title of “Persons authorized to sign on accounts of enforcement departments”, which includes on the second page under the headline “court enforcement departments fixed deposits” account number 196187 JD/USD/ILS Al-Maydan branch/Ramallah, in addition to the names of those authorized to sign: signature a. Chief Justice of the High Judicial Council, Ali Muhana and signature b. General Manager, Mohammad Sharakeh, while the other accounts carried the names of the court enforcement departments, the signing of which was restricted to enforcement judges and enforcement officers or the enforcement department’s Accountant, as required by each department and in accordance with functional and judicial specializations. Also, an official letter sent by former Chief Justice of the High Judicial Council, Ali Muhana, to TNB’s General Manager, numbered 32/7189, dated 19/10/2015, and titled “account deposits of court enforcement departments”, which contains amounts of money TNB was asked to fix as deposits, deposit in the account that belongs to court enforcement departments as fixed deposits in Ramallah branch, account number 196187 mentioned above, and transfer from 13 enforcement department accounts that belong to 13 different courts to the mentioned account.

Pursuant to what Maan mentioned in its abovementioned report, your respectful council had previously transferred enforcement money to TNB in accordance with an agreement that included a commitment to prevent enforcement judges and competent heads of courts from access to enforcement accounts. And according to what MUSAWA learned from the abovementioned written documents, an amount of money was deposited in the enforcement department’s fixed-deposit account, and authority to disburse and deposit money to this account was given to the Chief Justice of the High Judicial Council and the General Manager, contrary to the law, which restricts the authority to sign on enforcement money to the enforcement judge in his capacity as a judge or the head of court as the party responsible for enforcement, along with the enforcement department’s Accountant or officer, and no one else. It goes without saying that this includes neither the Chief Justice of the High Judicial Council nor the General Manager, pursuant to the jurisdictional rules for judges who are authorized to do so by law, and pursuant to the fact that this money is either private money that belongs to its owners (judgment creditors) or money deposited to them according to judicial decisions by the enforcement judge or the head of court by virtue of their jobs and terms of reference. Enforcement money is not considered in any case as treasury funds or as belonging to judicial authority; there is no excuse to an agreement between the judicial authority and the bank to establish a fixed-deposit account for the court’s enforcement department, in which private money that belongs to judgment creditors is deposited, and the authority over which (deposit and withdrawal) is given to the Chief Justice and the General Manager, due to the fact that this money does not concern the High Judicial Council or any of its administrative departments, neither does it concern the general budget or the court as a court, for it does not include what can be considered as a financial disclosure for the High Judicial Council or the courts, it is rather a safe deposit that belongs to others and that is deposited by enforcement departments in banks as a tool for safely-keeping the money and in accordance with enforcement-related accounts. The only party exclusively authorized to conduct financial transactions related to that money (in terms of deposit and withdrawal) is either the enforcement judge or the head of court along with the enforcement department’s accountant or its officer. Not to mention that an act of this kind; opening fixed-deposit accounts for enforcement departments, depositing money (safe deposits), and authorizing the Chief Justice and the General Manager to manage the account beyond their authority, represents an investment in private money without any permission or request by its owners, and return from this money represent an unjustified act of enrichment, while it should be an exclusive right for judgment creditors, pursuant to the provisions of Article 798 of the Journal of Justice Judgments, which clearly states that “return from a deposit belong to the owner of this deposit”.

A fortiori, neither the executive authority nor the Ministry of Finance has any power or authority to interfere in the aforementioned matter, which makes it obligatory to close the mentioned fixed-deposit accounts immediately and to transfer all of the money along with its return to the safe-deposit accounts. The situation might also require that an investigation be done and that the necessary legal action be taken regarding whether the mentioned act does or does not represent a violation that requires accountability.

Dear Sirs,
We shall not forget that, according to the clearly established Article no.98 of the Basic Law, a judge’s independence in his judicial work is a matter based on the law and one’s conscience, nothing else. It is not allowed, in any case, to deal with a judge as an employee, wageworker, or laborer. No person or party, whether inside or outside the judicial authority, is allowed to interfere in a judge’s judicial work. Furthermore, it is not allowed for any official or private party or any natural or legal person to withhold information requested by a judge by virtue of his work, pursuant to the laws currently in force, including the law of evidence, Civil and Commercial Procedure Law, and Penal Procedure Law, because this represents not only an interference with the judge’s independence but also a violation of the social contract (the Basic Law), which clearly states  that all authorities, individuals, parties, and works are subject to legal accountability. Here, we refer to paragraph 2 of Article 30 of the Basic Law, which forbids the immunization of decisions against judicial oversight; and therefore, preventing the competent court access to its safe-deposit account based on an agreement between the High Judicial Council and the bank mentioned above is considered, from our point of view, null and void condition even though the agreement was signed with the blessing of the Minister of Finance or the executive authority. Let alone that such a condition represents an interference in and obstruction of the judge’s work and a failure to fulfill a legal obligation that should apply to everyone without any exception, on the grounds that the court/judge, according to explicit constitutional provisions, is the party qualified, entrusted with and capable of settling disputes; it is the body that represents the true meaning of judicial authority and that has the authority to monitor all works and decisions. Furthermore, withholding information that is necessary to ensure that the court fulfills its duties regarding matching the funds received with those disbursed is a violation of legal provisions, and the violator must be held accountable.

Needless to say, any person who interferes in the judge’s judicial work, or demands that the judge take action against his belief and the rule of law or based on an administrative request, must be held accountable, considering that the aforementioned represents one of the key aspects on which judicial work and its independence is founded.

Dear Sirs,
We, at MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession, as an independent non-governmental monitoring body and an impartial partner in the justice system, kindly hope that you bear into mind what has been stated in our memo and take the appropriate legal action regarding the matter.

With all due respect,

Issued on 27/03/2016                                                            

 MUSAWA

•    Copy to: 
1.    Legal Adviser to the President His Excellency Hassan Al-Oury.
2.    Chairman and respected members of the Bar Council.