2022-07-26

West bank

position paper

Upheaval of the Constitutional Court’s jurisdictions and its judges’ tenure

Handing out a wide-range of Privileges for its judges, and depriving those whose rights were violated from submitting a request for interpretation.

Once again, a decree-law is issued amending the Constitutional Court’s law pursuant to the opinion of its general assembly, that is attached to a letter issued by it on 24/5/2022, and decree-laws are still issued behind closed doors without subjecting them to community discussion or specialized professional discussion, and without ensuring that all requirements are met for the implementation of  Article (43) of the Basic Law that regulates the conditions for issuing decree-laws, despite the fact that the decree-law indicated, in its preamble, that it is based on the Basic Law.

MUSAWA carefully examined the details of the decree-law no. (32) for the year 2022 that was published in the special issue no. (27) of the Palestinian Gazette on 7/24/2022, while upholding its previous position in opposition of the formation and performance of the Constitutional Court, in addition to its position rejecting all decree-laws, because they violate the provisions of the Basic Law,  lack an urgent necessity that cannot be delayed, and are issued by a party that is not the original legislative authority, under the cover of darkness and away from any aspect of community participation. The Decree-law also addresses an important law which is considered one of the Legislations supplemental to the Basic Law “The Constitution", and amending it is impermissible and prohibited by the Basic Law. Therefore, MUSAWA’s duty is to inform the public of the flaws and shortcomings contained in the decree-law that has direct negative effects on the rights of citizens and litigants. Thus, MUSAWA notes the following observations:

1. In its preamble, the decree-law did not reference the government's position or its decision regarding it.

2. In its preamble, the decree-law did not indicate that it should be presented to the Legislative Council during its first session.

3. In its preamble, it did not indicate the public interest it seeks out of issuing the decree-law.

4. The decree-law used the Basic Law of the Palestine Liberation Organization for political and partisan reasons and without any basis.

5. The decree-law deprived citizens, whose constitutional rights were violated, of the right to submit a request for interpretation to the court, by amending the first paragraph of Article (30) of the original law. Accordingly, it stipulated that only the Minister of Justice can submit a request for interpretation, based on a request from the President, the Prime Minister, the president of the Legislative Council, the chief justice of the High Judicial Council, or the chief of the Supreme Administrative Court. It also removed those whose constitutional rights were violated from among the ones who can submit a request for interpretation.

6. The decision by law expanded the powers of the presiding judge and canceled any role of the government or the Ministry of Justice in any matter related to it, including logistical and technical issues. For example, it stipulated that judges are allowed to teach in universities or higher institutes, only by prior permission of the presiding judge. It also limited the appointment of an investigation judge, who is to investigate another judge, only to the president of the court. In addition, it stated that the secretary general of the court, who is appointed by a decision of the president as an appellate judge or a supreme court judge with the authority to follow up on judicial affairs and address the members of the court, is under the supervision of the presiding judge who assigns work for him. It also placed the technical office under the supervision of the presiding judge and granted him the authority to issue the internal regulations that describe the competencies of the technical office. In addition to all that, it granted him the powers of the competent minister to supervise the work of the secretary-general, the chief registrar, and all the administrative officers in the court.

7. The decree-law includes additional privileges for judges, such as allowing them to teach in universities or higher institutes in addition to their judicial position.

8. It granted the general assembly the power to prepare a system of privileges for the Supreme Constitutional Court instead of the government, provided that it is issued by the president.

9. The Decree-law stipulated a three-year working period only for the entitlement of the pension, either by the judges or their heirs, which amounts to 70% and no less than 50% of the total salary.

10. Judges are entitled to a pension in all cases, including resignation, with the exception of removal from office only.

11. The judge under investigation is entitled to a full salary from the date he was placed on administrative leave for investigation purposes.

12. Judges are entitled to a pension without being obliged to pay their dues, as it is completely paid from the public treasury.

13. Pursuant to the decree-law, Paragraph 2 of Article 21 of the original law and its amendments were amended, by automatically deleting the word “by force of law” from Paragraph 2 of the aforementioned article related to the termination of the service of the president and members of the court. This means the possibility of continuing the judge’s term after the expiration of his legally specified period of six years, because according to the amendment, his service is not automatically terminated, as it is terminated by a decision issued by the President based on a recommendation from the General Assembly of the court, even if any of the conditions for the termination of service are met, except in the case of death. This is a substantial change in the jurisdictions of constitutional courts, especially those related to setting a fixed term for its judges, and allows the constitutional judge to enjoy life tenure, unless a decision is issued by the head of state based on a recommendation from the general assembly of the court to terminate his service. Accordingly, this exempts it from the duty to appoint judges in the constitutional court every 3 years, and leaves plenty of room to increase the number of its members, which cancels the special nature of it, the mechanisms of its formation, and the term of office in it, and removes age as one of the conditions for the termination of service, and turns judges into a tool in the hands of the executive authority. This amendment grants its judges a special privilege that exceeds all work determinants for regular courts’ judges, according to what the president or the general assembly of the court deems fit.

14. According to the decree by law, the legal oath that is taken when a judge assumes his duties should take place before the chief of the Supreme Judicial Council or the President of the Legislative Council.

15. The decree-law abolished the role of the general assembly in holding judges accountable, and entrusted it to the presiding judge, while also restricting its other roles.

16. The decision authorized the electronic notification law.

17. Reducing the deadline, for filing a constitutional lawsuit by a motion to dismiss, to 60 days instead of 90.

In the face of these shortcomings, loopholes, and risks, we at MUSAWA believe that this decision should be annulled due to the absence of its constitutionality, and its clear contradiction with the constitutional principles regulating the constitutional courts and its jurisdictions in regards to both its formation and performance.

26/07/2022

MUSAWA