2020-06-10

West Bank and Gaza Strip

West Bank / Gaza / Announcement / position paper

Excessing the Judiciary and Obstructing the Duty to Report Corruption

Having carefully considered the statement issued by the Anti-Corruption Commission and published on social media after its issuance on 31/5/2020, regarding a communication filed by an identified person on suspicions of corruption in the Constitutional Court, accompanied by a request for protection under article 18 of the Anti-Corruption Law, the witness protection system, and the guarantees of protecting reporting persons offered in the authority’s statement, in which it addressed the Constitutional court not to take any administrative measures against the reporting persons against the backdrop of reporting to the Anti-Corruption Commission with disclosed identities seeking functional protection. In its commitment to maintaining the confidentiality of the investigation, and having completed its preliminary investigation of the allegations submitted to it, the Anti-Corruption Commission reported that it provided the reporting persons with functional protection and that it found that the allegations contained in the communication address administrative irregularities that do not amount to corruption suspicions, most of which were contained in the Oversight Report of the State Audit Administrative Control Bureau report on the work of the Constitutional Court. We perceive that the mentioned statement involves violations of the provisions of the laws in force, particularly the 1st, 2nd, and 20th articles of the anti-corruption law, and article 59, 149, and 152 of the Code of Criminal Procedure, which may constitute a usurpation of the powers of the judiciary and frustration of the duty to report suspicions related to corruption crimes, thus hindering the effective combat against corruption, as indicated below:

1. It is legally known that the State Audit Administrative Control Bureau and the Anti-Corruption Commission are mere law enforcement agencies, whose roles, combined or separate, does not exceed that of judicial police, which is not competent to suspend the investigation of corruption suspicions, nor authorized to give the legal characterization of the reports submitted to it concerning allegations of corruption, which also applies to the Public Prosecution, since pursuant to article 152 of the Penal Procedure Code, it does not have the power to file a case or an investigation unless there is no evidence. The case we are considering had two pieces of evidence the testimony of the two witnesses and a written report issued by the State Audit Administrative Control Bureau, thus the Anti-Corruption Commission, in its capacity as a law enforcement service in charge of evidence gathering and preliminary inquiry, should have referred the communication to the Anti-Corruption Prosecution Service through the Attorney General and then to the Anti-Corruption Tribunal, as it has the full authority and power to weigh the evidence and to give the legal characterization of the alleged act. Whereas the statement of the Anti-Corruption Commission contains the legal characterization of the acts in question, it, therefore, has usurped the authority and power of the competent court, notwithstanding the existence of evidence that obliges the Anti-Corruption Commission to refer the communication to the competent court, and that exempt this case from the jurisdiction of the judicial police. Not to mention that by such actions, the Anti-Corruption Commission usurped the authority of the Public Prosecution, which has the power to decide on filing a communication or complaint if there is no evidence in its regard, but since the case we are discussing has evidence, the Public Prosecution does not have the right to decide on filing the case, even if it was referred to it to pass it to the court, which has the sole authority to decide on proving the crime, its type and the value of the evidence presented. 

2. According to the wording of the statement, the Anti-Corruption Commission ignored the provisions of the first article of the Palestinian Anti-Corruption Law, which considers the complacency in the fulfillment of job duties as a crime that falls under the umbrella of corruption crimes, thus, the Anti-Corruption Commission and the State Audit Administrative Control Bureau revelation of administrative irregularities may involve a crime of complacency in the fulfillment of job duties, therefore, the mentioned bodies were supposed to refer the file to the Anti-Corruption Prosecution Service, which, in its turn, shall refer it to the competent court. The Anti-Corruption Commission’s characterization of allegations of abuse of power, favoritism, and nepotism as administrative irregularities, which is a faulty characterization that may lead to the loss of rights and obstruction of justice, contrary to the rule of law and the express provision of article one of the Anti-Corruption law, which lists such acts under corruption crimes. Noting that the Anti-Corruption Commission received several allegations that the court and its officials are violating the criteria of employment and appointment, allegations of unexplained disbursement of funds, and allegations that the two whistleblowers were subject to carrot-and-stick practices to induce them to retract their communication, in obstruction of justice, which falls under the umbrella of corruption offenses, therefore, the file should have been referred to the public prosecution and subsequently to the competent court, which has the jurisdiction over the reliability of allegations and the legal characterization of the facts they report.

3. According to the law, crimes may constitute a violation, misdemeanor, felony, or an administrative offense. If an administrative offense involves acts of complacency in the fulfillment of job duties, including negligence, underperformance, lack of scrutiny, or failure to comply with regulations and instructions, such offense shall be subject to administrative and penal accountability. Therefore, the file should have been referred to the investigative authority and subsequently to the competent court to prove the allegations of complacency in the fulfillment of job duties, abuse of power, favoritism, nepotism, or perverting the course of justice, thus, the Anti-Corruption Commission did not have the power to decide that the allegations it received are administrative irregularities that do not amount to corruption suspicions, which legal and judicial scholars agree on to release the powers and authority of the court. 

4. Under article 22 of the Anti-Corruption Act and article 59 of the Code of Criminal Procedure, law enforcement bodies, including the Anti-Corruption Commission and the State Audit Administrative Control Bureau, are obliged to maintain the confidentiality of investigations and their findings. Therefore, the dissemination of the investigations’ findings is not only reprehensible, but also contrary to law provisions, and a punishable crime that requires accountability. The statement, which was issued by the Anti-Corruption Commission and published on social media, has declared the findings of the investigations of the mentioned communication, shall be liable under the provisions of the two mentioned articles.

5. Article 7 of the witness protection system prohibits sharing any details concerning the protection measures provided to whistle-blowers and witnesses and stipulates that such protection includes legal, functional, and personal aspects. Therefore, the Anti-Corruption Commission's announcement of the protection decision in a radio interview and an official statement issued on its behalf, before removing the threat posed to the whistleblowers, is considered a violation of the provisions of the mentioned system.

6. The drafting of the statement suggests the elimination of protection, contrary to the rule of law since protection is intrinsically linked to danger, not to the completion of preliminary investigation and evidence gathering, and in violation of the provisions of Article 1/13/C of the mentioned system, which link the terminations of protection to the cessation of need, in the sense of removing the threat that requires protection against. In addition, the drafting of the statement may constitute a frustration of the efforts to promote the duty to report suspicions related to corruption crimes among citizens, thus setting back the anti-corruption plan.

7. The Anti-Corruption Commission did not address the allegations of disrespecting the protection decision and violating the rights of the two whistleblowers, entailing an underperformance, whose negative aspects would not only affect the whistleblowers but would also promote the community's silence on suspicion of corruption. Therefore, the Anti-Corruption Commission shall take the legal requirement to fend off any threats posed on the whistleblowers’ professional, legal, and personal rights. 

8. Although that the statement of the Anti-Corruption Commission contains details on its decision to protect the two whistleblowers violates the law, it involves an acknowledgment of the seriousness of the communication and that the merits of the communication constitute a suspicion of a crime of corruption. Thus, the communication should have been adjudicated by the competent court, rather than considered by the Anti-Corruption Commission, which decided that the merits of the communication address administrative irregularities that do not amount to corruption suspicions, contrary to the laws and regulations and encroaching on the prerogatives of the judicial authority.

Against that backdrop, we believe that the Anti-Corruption must revoke its statement and take the legal requirement in its regard duly.

MUSAWA

Issued on 10/6/2020