2020-07-07

West Bank and Gaza Strip

West Bank / Gaza / Announcement / position paper

Judicial Reform: A Quiet Reading in a Stormy Collapse

As an entry point supported by the scientific briefing that was developed before the emergence of the Palestinian system and its authorities, including the judiciary, it must be stated that fundamental reform within the current structure of the political and judicial systems is admittedly difficult, given that the structural component chosen for laying the cornerstone of the judiciary was initially incompatible since it has enshrined a culture and behavior that do not comply with the law, the values and principles of human rights, the rule of the law, the separation of powers, the principles of the state of law and the constitution, good governance, transparency, and accountability. Thus, the fundamental and guaranteed solution is a comprehensive reform process, which in its turn requires a culture of participatory democracy that honors human rights and the rule of law, and establishes the values of both institutional action and transparent\impartial accountability.

In this context, it is worth deducing the fundamental flaw of the state of the judiciary and the justice system as a whole, posed by the executive authority’s singling out the selection of the president of the judicial council, ensuring that he takes charge of all powers, especially decision making, and ensuring his dependence on the executive authority, its centers of power and its relevant agencies, especially the security ones. Moreover, this imbalance is posed by the continuation of the executive selection of the High Judicial Councils’ presidents without any adherence to the provisions of articles 25, 37, and 38, of the Judicial Authority Act, and without observing the rules governing the functioning of the judicial authority as an institution, while tampering with the formation of its services in a manner that meets the interests of each President and satisfies the President's supporters and advisers. Not to mention that the flaw in question is also posed by adopting a judicial inspection regulation that reserves all powers to the President of the Judicial Council alone. Consequently, the judicial authority is now characterized by the prevailing culture of conflicting interests and jurisprudences at the internal and external levels, which created a favorable climate for centers of power, communities of conflicting interest, and subjective blocs that derailed the judiciary, disregarded the law, violated transparent performance, failed to enforce accountability, enshrined the approach of acquisition and extortion, and deepened cronyism, nepotism, dependency, and subordination instead of promoting respect of the law and adherence to its provisions and obligations, which paved the way for the presidents of successive councils to remain in office, and to preserve their interests away from the law, despite their mandate to implement it.

In order not to confine this paper to addressing details and testimonies, this part proposes a solution that merits serious consideration to prevent the predicted systemic collapse. If goodwill is evinced, the law is followed, oversight is promoted, constructive criticism is considered, and transparent accountability is achieved, the proposed solutions shall hold the keys to facing and overcoming the crisis despite its depth. The solution primarily starts by drawing away from the conflicts of the executive authority, sparing the judiciary the conflicts of the ruling party, adhering to the judicial authority act, and revising the doctrine and texts of the Judicial Inspection Regulations and the Code of Judicial Conduct, enshrining the judiciary as a societal right, and employment-based on equal opportunities, competence, and integrity, away from so-called security integrity. The solution includes the following actions that shall be followed as an integrated whole: 

1. The immediate resignation of the Transitional High Judicial Council.
2. To reactivate the ordinary High Judicial Council as provided for in articles 25, 37, and 38 of the Judicial Authority Act. 
3. The Permanent Council shall conduct a comprehensive and specialized evaluation process following the standards of efficiency, integrity, anti-corruption, human rights values, and impartiality. Provided that the results of this professional assessment process shall be announced under transparent procedures that guarantee accountability and the right to defense.
4. To amend the Judicial Inspection Regulation to incorporate the evaluation principles, standards and procedures periodically and regularly, and to amend the Judicial Code of Conduct to ensure the individual independence of judges and the institutional independence of the judiciary, noting that articles 25, 37 and 38 of the Judicial Authority Act provide for establishing the High Judicial Council by force of law, without having to issue a presidential placement decree, and enshrining the fact that placement decrees are a preliminary requirement to fill the position of a judge and to form the High Judicial Council or the Constituent Assembly, which had been applied for a long time.

Emphasis must be placed on the prohibition of any action prejudicial to the Judicial Authority Act, sine it governs one of the three authorities of the state, and supplements the Basic Law, and given that, it can be amended only through an elected legislative council. Moreover, some obvious yet necessary legal parameters shall be emphasized as well, including the evaluation results, which either proves the suitability of the judge for the judicial function, incompatibility, or corruption. Therefore, corruption must not be protected with silence; corrupt judges must be tried and dismissed, not to mention that those who are not competent for reasons of proficiency or behavior shall not stay in office, but rather transferred or retired. On the other hand, any judge, who faced an illegal action that violates the transparent and professional evaluation, and was denied his/her right to defense, must be provided with adequate rehabilitation and restitution.  

In conclusion, there are clear avenues for curbing the collapse, preventing the encroachment of the executive authority, its services and centers of power on the affairs of justice and the judiciary, preventing the adoption of policies based on codependency of interest between the executive services, the High Judicial Council and its President, and preventing the placements of the executive authority in the judicial authority. Since there is no alternative to a productive treatment for the judicial collapse, the question is will this proposal be finally adopted to restore the status of the judiciary and fulfill the endeavors to develop and reform it? Alternatively, will we witness the persistence of human rights violations, and the persistence of the judiciary as a tool of preserving interests contrary to its nature as a social right and an authority of justice?

By this shared briefing, the factors of collapse should not be promoted as accomplishments, and such action should not be passed over in silence.

The status quo approach has brought us nothing but failure and collapse, and it shall not be adopted anymore!

Issued in 7/7/2020

MUSAWA