2021-12-06

West Bank

West Bank / Announcement / Core Program / position paper

Accepting Decree-Laws amending judicial legislation and retracting the demand to cancel them is the reason behind falling into the trap of the struggle for centers of influence and participation in violating constitutional principles

While we adhere to our declared position towards the formation and performance of the Constitutional Court, which is in line with the positions of many legal and civil society organizations demanding for its abolition for many considerations that we have previously stated on several occasions through position papers and statements issued by MUSAWA and other position papers and statement issued by civil society institutions, including MUSAWA while we are aware of the right to comment on judicial rulings according to the rules and principles we are accustomed to and are still accustomed to abide by. We see in the ruling issued by the Constitutional Court, which ruled that the third paragraph of Article 54 of Decree-Law No. 41 of 2020 regarding administrative courts was unconstitutional, considering the Court of Cassation as a court of first degree, and the rulings issued by it since the issuance of the aforementioned Decree-Law are therefore not final and subject to appeal to the Supreme Administrative Court, which has not been formed yet, as the Decree-Law was issued and implemented by law regulating an administrative judiciary that is non-existent.

In the positions declared opposition to the aforementioned ruling, they both included the ruling and the positions opposing it contained constitutional violations, and retracted the declared positions that had previously been unanimous on the need to cancel all Decree-Laws amending judicial legislation, and to stop issuing Decree-Laws for violating the Basic Law and the Declaration of Independence, and because the issuer sees them as an alternative to the democratic approach expressed in the implementation of the principle of "The people is the source of powers" while the powers exercised by the people in accordance with the principle of separation of powers.

Some of the commentary on the aforementioned ruling is as follows:

1. Legitimizing the Decree-Law No. 41 and granting it a constitutional status, despite the fact that it suffers from several constitutional problems from the procedural and substantive aspects that the court did not notice, despite the fact that it has the authority to do so.
2. The Constitutional Court failed in its retroactive application of its ruling, as despite the general nature of the rulings issued by the Palestinian administrative judiciary, most of them were issued in favor of the administration, but the duty to respect the legal positions of citizens who obtained legal positions by issuing rulings that nullify the administrative decisions affecting their rights despite the fact there are a few of them, it requires, and in accordance with the principle of direct application of legal rules, that the retroactive effect of the aforementioned ruling should not be implemented, in accordance with the established constitutional principles and the explicit text of Article 117 of the Basic Law, which clearly states that “the provisions of laws do not apply except to what occurs from the date of their implementation.”
3. The Constitutional Court failed when it labeled litigation at two levels by a constitutional right, while litigation at two levels is one of the guarantees of a fair trial that has a legislative basis in the International Covenant on Civil and Political Rights in the fifth item of the first paragraph of Article 14 of it, which states: “Every person who has been convicted of a crime has the right to resort in accordance with the law to a higher court in order to reconsider his conviction and the punishment he was sentenced to." bearing in mind that the text of this provision is binding in accordance with Article 10 of the Basic Law. The Constitutional Court has never before demonstrated its legislative and obligatory status in accordance with the correctness of the Basic Law and the Declaration of Independence and formulated its ruling without constitutional grounding so that it had to stipulate that it is a right guaranteed in the binding international agreements signed by the State of Palestine, not to call it a constitutional right not expressly provided for in the Basic Law.
4. It is remarkable that the ruling was issued in a short period while its working is closer to the political position than the legal position and more inclined and expressive of dominance and imposition instead of interpretation, grounding and attribution. An example of this is what was stated in the ruling “... which caused an aggression against the rights of individuals that were violated through the application of the third paragraph of Article 54 whose constitutionality is challenged whereas it involved a clear constitutional violation that affected the spirit and principles of the Basic Law because it was not equal among the individuals addressed by its provisions and is not based on the legitimacy of constitutional, legal, or logical justifications.”

On the other hand, some rushed in their opposition to the ruling, ignoring all of the above and retracting their demand to cancel the Decree-Law, which was documented in the statement issued by CSOs on 16/1/2021, which suggests their approval of the aforementioned Decree-Law and turned a blind eye to its explicit violation of the provisions of the Basic Law and the Declaration of Independence and next to them are international agreements, charters and covenants. On this impulse, which we do not acknowledge, we record the following:

1. Its call to the president to issue a Decree-Law amending the aforementioned Decree-Law, quickly, which aims to prevent the implementation of the Constitutional Court ruling away from commitment to the Basic Law, the declaration of independence and the principle of separation of powers.
2. Its call to the head of the Supreme Judicial Council and its administration to quickly form administrative court bodies by a decree of his own without a document, authority or competence recognized by law and without a legitimate legislative basis, which constitutes non-sense that involves protecting interests, violates the principles of the rule of law, usurps the powers of the legislative authority, and contradicts the provisions of the Basic Law and the declaration of independence in a way that undermines the foundations of the rule of law, and tramples the principle of the rule of law and the separation of powers and plunges its owners into a conflict of interests of persons and centers of influence.

We, MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Law Profession,  see the dominance of the executive authority over the legislative authority represented in issuing Decree-Laws amending the judicial legislation that causes such problems and the conflicts of centers of influence and silence and acceptance of it is a dedication to that domination, and that the solution lies in the immediate cancellation of those Decree-Law and not to prejudice the law of the judicial authority that must be respected and may only be considered by an elected Legislative Council.

MUSAWA

Issued on 6/12/2021