2017-05-15

Ramallah

West Bank

The Honorable Head and Members of the High Judicial Council,

Subject:

1-    The High Judicial Council’s Circular No. (1385/20), issued on 09/05/2017, which prohibits judges from giving statements or media interviews to any party whatsoever if they are not officially commissioned by the Head of the High Judicial Council or his appointed deputy, to which they will be held accountable.

2-    The High Judicial Council’s Circular, issued on 13/04/2017, requesting the presidents and judges of regular courts, and the heads of public departments in the High Judicial Council, to instruct all employees not to write about work-related matters on social media channels.

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession extend their warmest greetings to you. As a non-governmental watchdog organization that monitors the performance of the pillars of justice, MUSAWA affirms its commitment to the independence, status, position and role of judges in safeguarding rights and freedoms, which promotes the public’s confidence in the judge and the judiciary. MUSAWA stresses its abstention from and rejection of all forms of interference in the judicial work; which is the fair and impartial resolution of disputes. We make reference to the many memos MUSAWA has successively sent to the honorable heads of the High Judicial Council, clarifying MUSAWA’s independent legal vision and lawfully demanding the reconsideration or rescinding of a number of decisions and administrative circulars issued by them in their capacity as representatives of the judiciary, as one of the State’s three authorities whose performance is subject to the supervision of the society, considering that it is a right to the people and a public authority, not a private company or institution, nor is it a closed box that cannot be criticized, a center of strength for a particular party, or a private farm. Judges are neither day workers nor service implementers. The judicial function and the performance of the judge and his diligence are what stands for the truth. They represent the tool for keeping civil peace, spreading justice, achieving security, ensuring development and safeguarding human rights.

Respectful Gentlemen, 

We examined both of the circulars in question with extreme attention. We drew up similar circulars issued by previous heads of the High Judicial Council, and the memos we sent regarding these circulars. Strangely, the circulars are usually issued shortly after the head of the High Judicial Council assumes his duties. For example, the circular which was issued on 05/06/2014 by the former head of the High Judicial Council less than a week following his appointment. Article (4) of the mentioned circular prohibits judges from participating in conferences, seminars, workshops, or personal meetings and interviews unless a written approval is given in advance – which was substituted with “unless they are officially commissioned” in the first circular in question in this memo.

We note that the similar circulars which had been issued by former heads of the High Judicial Council were not put into effect, following our memos and the reactions of the judges. We reiterate that circulars of this kind represent a direct prejudice to the judge’s independence, and a clear violation of his right to express his opinions; a right guaranteed in the Judicial Code of Conduct in force, issued on 10/05/2006 and published in issue no. (67) of the Palestinian gazette, which has not been amended, and unfortunately has not been yet adhered-to by your honorable Council. In Article (39), it states that a judge may express his views by all means of expression, provided that it does not exceed the limits set by the law. Article (19) of the Amended Basic Law (2003) states that “freedom of opinion may not be prejudiced. Every person -Is not a judge or an employee in the judiciary human!- shall have the right to express his opinion and to circulate it orally, in writing or in any form of expression or art, with due consideration to the provisions of the law”. The right to freedom of opinion is also guaranteed in Article (32) of the Arab Charter on Human Rights, which was adopted in the Arab Summit held in Tunisia on 23/05/2004; in Article (19) of the Universal Declaration of Human Rights, which states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”; and in the UN General Assembly resolution no. 144/53 issued on 29/12/1998.

Respectful Gentlemen,

The two aforementioned circulars represent an inferior view towards judges and employees in the judiciary. They both deprive the judge of his status of authority, which may not be restricted or derogated-from. Furthermore, they imply an indication of mistrust in the judges’ competence and judgment. The trust put in a judge is prejudiced, while a judge is considered a custodian of the rights of citizens and one who resolves disputes by enforceable judicial rulings. The low level of trust in judges by their administration and its head may justify the low level of public confidence in the judiciary, subject its status to erosion, and deepen its deterioration, which may lead to the collapse of the values of society as a whole.

Respectful Gentlemen,

The phrase “to which they will be held accountable”, mentioned in the first circular, catches one’s attention. It deals with a judge’s exercise of a right to which he is entitled by the Constitution, and which represents one of his professional duties, as if it was a crime that requires accountability. Mentioning such a statement is very dangerous sign of the policy of mouth-muzzling, and its adoption by those in charge of implementing the rule of law and safeguarding rights and freedoms.

Accordingly, we call upon you to abolish the two circulars, remove their effects, and to consider them as if they were not written, by an official circular issued by the Head of the High Judicial Council, stopping them immediately, so as to safeguard the dignity of the judge and the real status of the judiciary, and to guarantee the rights of citizens.

With all due respect,

Issued on 15/05/2017

Chairman of MUSAWA’s Board of Directors
Advocate Yasser Jaber

-    For your attention and the appropriate legal action:
•    The Head of the Palestinian Judges Associaiton, Judge Usama Al-Keilani.
•    His Excellency the Minister of Justice, Mr. Ali Abu-Diak.
•    His Excellency the Legal Advisor to Mr. President, Minister Hassan Al-Ouri.
•    His Excellency the Head of the Anti-Corruption Commission, Mr. Rafik Al-Natsheh.
•    His Excellency the Attorney General, Dr. Ahmad Barrak.
•    The Independent Commission for Human Rights.
•    The Civic Coalition for Monitoring the Legislative Process.
•    The respected gentlemen of the parliamentary blocs.