2022-01-19

West Bank

West Bank / Core Program / position paper

MUSAWA’s opinion on a Draft Decree-Law without Number for the Year 2022 Regulating the Forensic Medicine Profession

His Excellency the Minister of Justice, esteemed Dr. Mohammad Al-Shalaldeh,

Subject: Musawa’s opinion on a draft Decree-Law without number for the year 2022 regulating the forensic medicine profession

Greetings,

According to what was expressed by the representative of the Musawa about the meeting that took place on 12 January 2022 based on your invitation to discuss study and express a legal opinion on the aforementioned draft. After having examined the draft in terms of its necessity, content, and provisions, we state/express/suggest the following:

We reaffirm our opposition to the issuance of Decree-laws because it represents an infringement of the prerogatives of the elected legislative authority in its capacity as the competent body for jurisdiction and monitoring, especially in the absence of the conditions if implementing Article 43 of the Basic Law, under which the aforementioned draft falls.

The draft contradicts the powers and competencies entrusted to the Council of Ministers in accordance with the Basic Law in many of its articles that regulate the powers of the Council of Ministers and exclusively limit the competences of the President, including Articles 63 and 69 of the Basic Law.

The government can issue a draft Decree-law in the form of a rule or a regulation specifically related to the subject of forensic medicine, as it is responsible for the performance of all ministries and executive departments. Therefore, there is no reason to issue it as a Decree-law.

Without prejudice to all of the above, many of the provisions of this draft are regulated by the Civil and Commercial Procedures Law, the Evidence Law, the Public Health Law, and a Decree-Law on the Liability of Physicians for Medical Errors, and there is no need to derogate from its provisions as indicated in Article 11 of the aforementioned draft, or repeat its provisions as indicated in many of its articles.

We do not agree with the general trend in the draft calling for the establishment of a private institution called the General Administration of Forensic Medicine, and we believe that the tasks assigned to that department can be entrusted to your ministry and/or the Ministry of Health.

We note that any medical report or expert report is not described as a deed of legal ground, as such authority is solely limited to the final judicial decisions, and it is legally permissible to provide evidence that is contrary to those reports, which the parties of allegation have the right to discuss and prove their incorrectness or illegality, and that is contrary to what is explicitly clear from the first paragraph of Article 11 of the draft.

The imposition of fees on medical reports intended to be used for judicial purposes is a violation of fair trial guarantees, an obstruction of the right to access justice, and an explicit violation of the provisions of the Basic Law, which states that “Public taxes and duties shall be imposed, amended and repealed only by law”, noting that it is evident that the Decree-law is not a law.

Many of the provisions contained in the draft are handled by law enforcement bodies and the judicial police and are regulated in the Code of Criminal Procedure, which does not justify issuing a decree-law.

Some texts fall under the competences of official departments and agencies such as the Public Prosecution and the judiciary.

The project is devoid of an explanatory memorandum clarifying the legislative policy, goals, effects, and objectives expected to be achieved, in addition to the financial cost of enforcing it.

Therefore, we demand that this draft be put aside and not paid attention to.

With much respect

Issued on January 19, 2022

Ahlam Tarayra, the Executive Director

MUSAWA