2020-12-09

West Bank

West Bank / Core Program / position paper

MUSAWA calls on the General Personnel Council not to approve the dismissal of the two constitutional court employees

H. E. the respected Mr. Musa Abu Zeid

President of the General Personnel Council

Subject: The two decisions by the President of the Supreme Constitutional Court to adopt the recommendation of the Administrative Investigation Committee, which includes the dismissal of the two employees of the court, Doaa Al-Masry and Marwa Farah.

MUSAWA - The Palestinian Center for the Independence of the Judiciary and the Legal Profession gives you its greeting, expressing its knowledge of a statement issued by the President of the Supreme Constitutional Court stating that he adopted a decision issued by an administrative investigation committee that he formed to investigate the two employees of the Supreme Constitutional Court, Doaa Al-Masry and Marwa Farah, on the grounds of what was attributed to them which are the administrative offenses allegedly committed on the grounds that they submitted a report to the Anti-Corruption Commission about suspicions of corruption that marred the work of the Supreme Constitutional Court and the subsequent procedures and announcement of that communication through the Anti-Corruption Commission on Radio 24 FM and the accompanying appeal to the President and demands for the enactment of the protection decision issued for the two employees and ignoring its implementation, which made the case of the two aforementioned employees a matter of legal concern as a matter of public opinion, especially the accompanying measures taken against them by the President of the Supreme Constitutional Court, including referring them to the Administrative Investigation Committee, which recommended their dismissal from public office.

We, at MUSAWA - The Palestinian Center for the Independence of the Judiciary and the Legal Profession, and after we studied very carefully, professionally and impartially - in our capacity as an independent civil monitoring body - the aforementioned committee's recommendation and the statement issued by the President of the Supreme Constitutional Court, we believe that they involved grave breaches of the provisions of the law and constituted an infringement and a violation of the constitutional rights of the two employees on top of which the right to a fair, equitable and impartial trial that ensures them fair trial guarantees whereas the investigation committee's procedures were characterized by several illegalities, including:

Without going into the details of violating the right of the two employees to enjoy protection and that the protection decision issued by the Anti-Corruption Commission in support of the report submitted to it by the two employees who was not observed but rather was replaced by several procedures and decisions that affected their rights and occupational powers. Far from that, the President of the Supreme Constitutional Court lost his authority to form the investigation committee being an opponent of the two employees according to the report submitted by them regarding suspicions of corruption. It goes without saying that the administrative or judicial official loses his powers in forming the investigation committee or selecting the court body by him or with his participation in accordance with the principle that “the opponent does not have the right to choose his judge”, which makes the investigation committee born void as to its formation and issued by a non-competent authority.

The formation of the investigation committee - in addition to its lapsing due to being issued by a non-competent or authority losing its validity- was not impartial in the formation whereas it included the membership of a representative of the Supreme Constitutional Court, chosen by its president, knowing that he was an opponent of the two officials who were referred for investigation; given the fact that his name was mentioned in the report on suspicions of corruption submitted by them - as a right and duty dictated by law, conscience, and the national duty of every citizen - marks the formation as void for this reason as well.

The president of the Supreme Constitutional Court, in his capacity as head of the relevant governmental institution, had to ask your esteemed office to form an investigation committee given that you are the competent authority after the head of the Constitutional Court has lost the authority to do so.

Recognizing the fact that the work of the investigation committees combines the investigation work that is assigned to the judicial audit authorities and the Public Prosecution, such as research and inferences work as well as other investigation procedures. However, they combine in addition to this authority the power to consider and decide what acts may be attributed to the employee that constitute a violation of the law. In this the part of its work, it is characterized by the status of an administrative body with judicial jurisdiction which compels to carry out its procedures for reviewing and adjudicating the charges assigned to it in accordance with the principles and judicial principles that guarantee to the employee who is referred to investigation his right to fair trial guarantees and his right to defense as constitutional rights and standards that define the integrity, professionalism, transparency and efficiency of the investigation committee. On top of those rights comes raising the defenses and formal and procedural requests and reviewing the documents and papers presented to the committee as evidence in confronting them to refute and challenge them in form and subject. Also, the same case applies to the statements or testimonies of witnesses whom the investigation committee must invite to appear before it and to enable the employee referred for investigation to discuss them and indicate the extent of their sincerity or not. All this was not referred to by a statement, mention or reference in the findings and recommendations of the committee with most of its a statement being a rhetoric of legal texts contained in legislation and implementing regulations about rules of conduct governing the rights and duties of the employee, followed by a conclusion devoid of evaluation of responses, evidence, statements or defenses that were presented or allowed to be presented by the two employees who were deprived of knowledge of the contents and nature of the evidence and allegations attributed to them. The findings and recommendations were devoid of any identification, mention or definition of the details of any document, paper, or witnesses' statements. This marks the investigation procedures with its judicial side - if the term is true - to be null, and this matter must be canceled.

Noting that the findings and recommendations of the investigation committee do not include any mention or statement of any evidence, document, or statements of witnesses presented by the two employees which is indicative that the committee did not have such a right. Furthermore, the findings and recommendations came out without reference to any statements or testimonies provided by the two employees, as evidence of the employees raising defense to refute the charges against them which indicates that they are deprived of recording their statements and their testimonies, in addition to the absence of any legal treatment, weight of evidence, or explanation of the reasons that led the committee to consider evidence, proof and statements and put forward evidence, statements or documents that the logic assumes that were presented by the two employees If their right to defense was respected, and fair trial guarantees were available.

For all of this, we see that the punishment issued against the two employees was based on investigation procedures that were carried out by a non-formed investigation committee, which lacked the issuance of a party that formed a sound legal formation that carried out its work in a manner that lacked transparency and impartiality and exceeded the rights of the two employees in a way that nullifies their work and includes the punishment issued by it under the umbrella of the violation Grave law.

Accordingly, we in MUSAWA - The Palestinian Center for the Independence of the Judiciary and the Legal Profession ask you, in implementation of your powers stipulated in Article (3) of Council of Ministers' Resolution No. (11) of 2013 in force, not to approve the investigation committee and not to approve the results of its work and to duly implement the legal requirements.

With respect

Chairman of Musawah

Dr. Talib Awad