2019-12-31

West Bank

Human Rights Defenders / West Bank / position paper

MUSAWA Calls for Discarding the Privileges System Suggested by the General Assembly of the Constitutional Court

His Excellency Prime Minister, Dr. Mohammad Ishtayyeh,

The honorable Ministers,

Subject: The draft system of privileges and rights of the members of the Constitutional Court prepared by its General Assembly and submitted to the Council of Ministers on 30/09/2019 for approval

MUSAWA- The Palestinian Center for the Independence of the Judiciary and the Legal Profession extends its warmest greetings to your Excellency, asking you to discard the mentioned draft system for a set of constitutional and legal reasons, which were indicated after careful consideration of the draft, as we became aware of the constitutional and legal violations involved in this draft and the serious consequences that will arise upon its approval, which may be summarized as follows:

1. Usurpation of the authority of legislation, and an attempt to create a system that serves private interests, which embodies a clear conflict of interests 

It stands to reason that the power of legislation shall not be enjoyed by non-legislative authorities, or else they would adopt subjective legislation, thus, the power of legislation is vested with the Legislative Council; as the authority with the general mandate. Resorting to such system as a basis for amending the Constitutional Court Act was upon a decree-law and to ensure wide privileges and benefits, which constitutes circumvention of the fact that the salaries and rights of public officials, including judges of the Constitutional Court, are exclusively organized and determined by the Constitutional Court Act; noting that the preamble of the mentioned draft system was based on the approval of the General Assembly of the Constitutional Court, although it is by no means a legislative authority.

2. Judges' Rights are subject to The Council of Ministers

The Council of Ministers, which has jurisdiction in issuing regulations that do not conflict with the provisions of the law and constitutional principles, also has the power to amend, repeal or replace those regulations, thus, the Constitutional Court's attempt to subject the rights and privileges of its judges to the Government, which is an executive authority, is quite surprising as it embodies and deepens the subordination of the judiciary and judges of the Constitutional Court to the Government.

3. The broad and unjustified discrimination between the President and members of the Court 

The texts and provisions of the draft involve a distinction between the President and the members of the Court, which is unsupported by law since there is no functional difference between the President and the other members of the Court.

4. The Violation of the Judicial Authority Act and the distinction between the Constitutional Court and the Judicial Authority 

The Judicial Authority Act has established the rights and privileges of judges, and since the nature of the Constitutional Court's work is judicial and since it is part of the judicial system, the discrimination concerning the rights and privileges of the Constitutional Court judges and the Supreme Court Judges, for example, is legally and morally unjustifiable, especially since many judges of the Constitutional Court have held positions as Supreme Judges in the judicial authority.

5. The project contradicts the general budget of the authority and includes significant and unjustified discrimination in relation to salaries and wages 

While the declared minimum wage does not exceed 1,450 shekels, and while the public budget is suffering from an enormous economic crisis, and while societal groups, including the poor, captives, injured, health, education, and public employees, suffer from the consequences of that crisis, and while the unemployment rates are increasing, the proposed draft includes increases in the rights of the President, vice-president and members of the Constitutional Court, in comparison with the rights and privileges mentioned in Articles 7 and 8 of the Constitutional Court Act, and numerous additional privileges that equal the privileges of the Prime Minister, ministers, deputy ministers, not to mention the allowances they were granted by that draft.

6. Dubious and Suspicious privileges 

Article (5) of the draft stipulates that the Cabinet's decisions concerning the drivers and escorts of the ministers and their deputies shall be applied equally to the drivers and escorts of the Supreme Constitutional Court officials. It also included that the Government vehicle operating system shall be applied to the vehicles of the Constitutional Court, indicating that the President of the Constitutional Court shall receive the treatment of the prime minister, while its Secretary-General shall receive the treatment of a Deputy Minister.

7. Four articles addressed covering the water, electricity, telephone, and rent bills of the houses of members of the Supreme Constitutional Court 

The bill allocated 4 articles (articles seven, eight, nine, and ten) to cover the water and electricity bills for the houses of the members of the Supreme Constitutional Court, to cover their home telephone bills, to grant one or more mobile phones to each member and to cover their bills, without determining a higher limit for those bills, not to mention that Article (11) provided that the President, vice-President and members of the Court shall enjoy the privileges stipulated in the financial system of ministries and public institutions.

8. The President of the Constitutional Court receives the treatment of the Prime Minister, and its members receive the treatment of ministers 

We deplore the insistence of the General Authority of the Constitutional Court on treating its president as a Prime Minister, its members as ministers, and its Secretary-General as deputy minister, which raise the question of whether this insistence on the practice of hegemonies, on the abuse of office, or on having the combined privileges of the three authorities? Would not that fall under the umbrella of conflict of interest and corruption suspicions?

9. The draft is in the interest of current judges, although the legislative motive is supposed to serve future judges

It stands to reason that legislation's purpose is to address a situation or a need to overcome it in the future. This raises a legitimate question about the insistence on applying this draft to the current judges of the Constitutional Court. It also raises questions about neglecting the needs of future judges!

10. Squandering public funds and deepening the citizens' crisis 

This draft is reprehensible; as the state resources are supposed to be directed to meet the needs of citizens, especially the poor, the persons unfit for work, the unemployed graduates, and the patients awaiting treatment.

11. The work nature of the Constitutional Court’s judges does not require full-time positions 

Since the jurisdiction of the Constitutional Court is limited, and since the appeals and requests submitted to it annually are not so many, many parliamentarians in neighboring Arab countries demanded that the judges of the Constitutional Court be allocated awards that are compatible with the nature of their duties, not to consider them as full-time employees, and to consider their efforts higher than those made by other public officials, including civilian, military, and sharia judges.

12. The Draft includes Demands that may contradict with the Constitutional Court's values 

While considering the draft, we wondered whether the privileges provided therein conform to the constitutional court's call for the conformity of legislation with values, national privacy, and human rights! Noting that the Constitutional Court Act is an organic law, i.e. it is of special status, as it is considered a law that complements the Constitution, thus its adoption requires the approval of a two-thirds majority of the present members of the legislative council or the majority of the Legislative Council, where appropriate.

Therefore, and based on the gaps of the draft system, which are inconsistent with the constitutional principles, the law, and national needs, we renew our request to discard it, as we caution against its serious consequences, hoping that you consider the components of this memory. With all due respect to those who hold public positions, and without prejudice to anyone, we reiterate our demand to reject the draft for its constitutional violations and for wasting public funds.

With All Due Respect,

Issued on 30/12/2019

MUSAWA