2018-01-30

West Bank and Gaza Strip

West Bank / Gaza / position paper

MUSAWA’s Initiative for the Unification, Rebuilding, and Improvement of the Justice System

The announcement of the national reconciliation agreement is a historic opportunity to unify and rebuild the official justice system (the Supreme Constitutional Court, the formal judicial system, the Sharia judiciary, and the Public Prosecution), particularly that the agreement won national, political and social support, and it aims at ending the dreadful division as well as embodying the unity of the land, the people, the institutions, and the authorities, manifested in holding elections for the Legislative Council, the National Council, and the presidency. 

Seizing this historic opportunity is of paramount importance as it responds to an urgent necessity which bears no delay or procrastination. This is particularly essential considering the consensus amongst the majority of legal professionals that holding a certain position within the justice system comes with a great responsibility towards the people, as it represents a right which belongs to the people rather than an advantage for the enforcers, also in light of the real crisis the justice system is facing, which unveiled the inability of its personnel to fulfill their social duties and exercise their powers as a judicial authority in implementation of the principle of flexible separation of powers.  Needless to say, separation of powers constitutes a fundamental feature and an essential component of the rule of law and good governance.

It goes without saying that a successful use of the aforementioned opportunity must be accompanied by a practical political will from all participants in the national reconciliation, beyond under-the-table-agreements between political parties and factions, and far from the approach of quantitative- rather than qualitative-oriented reinstatement of non-attending employees (i.e. workers in the justice system in Gaza who were employed before the political division, and could no longer attend work as of the division, but are still on the payroll from the PA) with attending employees (i.e. workers in the justice system in Gaza who were employed after the political division by the Hamas administration, and are still attending work until the moment). The qualifications for occupying such positions should be based on impartial and non-partisan standards, given the unique nature of the job, which is to convey the will of the people through the impartial and equal application of the provisions of the law.

In order to realize this will, a National Conference should be called-for, bringing together representatives of all governmental and civil bodies working in the field of the rule of law and good governance, including judges, prosecutors, law professors, representatives of Civil Society Organizations (hereinafter CSOs), the Bar Association, and professional and social actors. A comprehensive intellectual diversity should be reflected in the said conference, without ruling-out any vision or opinion.

The sole mission of the National Conference is to establish a community-based national committee of an odd number and no less than 7 and no more than 11 members, including persons who are well known for their impartiality, integrity, and community trust. The selection of members should follow the following criteria and procedures:

1.    The committee shall not include in its membership anyone from the participants who took part in the conference;
2.    The committee members shall be selected according to  personal qualifications and not professional, geographical, or partisan considerations;
3.    A presidential decree shall be issued, by which the establishment, tasks, jurisdiction, authority, and validity of the committee is defined. The committee’s work is limited to the assessment of the performance of each and every person occupying a position within the aforementioned justice system or holding the title of this position both in the West Bank and Gaza Strip;
4.    Assessments shall be conducted from the top and all the way down to the bottom, and all of the employees or those holding titles in the justice system shall be subjected to the assessment, no matter their position or job title;
5.    Depending on the results of the assessment, those who prove to possess the necessary competence and meet the requirements of occupying a certain position in the justice system are kept in their positions, whereas those who prove otherwise are either transferred to a different governmental post or are referred for retirement where they are guaranteed all of their financial entitlements;
6.    The committee may seek assistance from experts in the fields of law, administration and evaluation to perform the assigned tasks, as it deems fit. Any assistance of this kind must be based on impartial and professional standards which do not aim at the exclusion or violation of individual rights;
7.    Depending on the findings of the assessment, the committee may identify the possible need for occupying certain vacancies within the justice system, along with the relevant standards and procedures;
8.    The committee may review the legislation regulating the justice system and propose amendments as it deems fit;
9.    The committee will finish its work within a period not exceeding nine months as of the date of its establishment;
10.    Any decisions and propositions made by the national committee are binding and enforceable by majority vote, regardless of what any other legislation might say regarding the matter;
11.    Once the committee finishes its work, it will be dissolved and the members can return to their previous work.

Ensuring that the invitation for holding the said conference is legally valid and called-for by the competent body, we believe that the conference should be called-for by the participants of the national reconciliation (as the founding body of the idea of reconciliation ) if holding general elections requires a long time. In case the elections were announced as per the reconciliation agreement, the invitation to the said conference shall fall within the sphere of competence of the elected Legislative Council and the Presidency, taking into consideration what has been established regarding the identity of the participants of the conference, and limiting the purpose of the conference to the selection of the said national committee, which will work towards the unification and rebuilding of the justice system pursuant to the procedures and criteria elaborated above.

We believe that the only way to deal with the crisis is to adopt this initiative and put it into action. We reaffirm that the justice crisis in Palestine is essentially a structural personnel crisis which cannot be addressed without an impartial evaluation conducted by an impartial and independent national committee whose members are respected and appreciated in the community. We hope that all decision-makers/duty-bearers will be able to respond to this initiative, since it matches international experiences such as that of Germany, in addition to other regional as well as international experiences where certain countries have been able to reform their judicial authority, thus contributing to the protection of civil peace and the sustainable development of their peoples, such as Jordan, Morocco, Algeria, Tunisia, and South Africa.

Furthermore, we call upon all social actors, CSOs, and national figures to adopt this initiative and demand its endorsement.

30/01/2018

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession