2019-11-06

Gaza Strip

Human Rights Defenders / Gaza

Observations on the Judicial Professionalism of the Sharia Judicial System in Gaza

His Excellency the head of the Judicial Inspection Service at the High Judicial Council of the Sharia Judiciary/ Gaza, Dr. Saeed Abu-Aljabeen,

Subject: Observations on the Judicial Professionalism of the Sharia Judicial System in Gaza

MUSAWA- the Palestinian Center for the Independence of the Judiciary and the Legal Profession extends its warmest greeting to you; noting that the center held a series of legal meetings for the members of the Lawyers for the Rule of Law Group (Friends of “MUSAWA”), working in the southern provinces, with the participation of 43 lawyers, including 12 female lawyers, who are authorized to plead before sharia courts. The first meeting was held in Deir Al-Balah on 22/7/2019, and the meeting was attended by 7 male lawyers and 3 female lawyers, followed by another meeting that was held in Khan Younis on 25/7/2019, which was attended by 7 male lawyers and 3 female lawyers. The third meeting was held in Al-Nuseirat with the participation of 9 male lawyers and 4 female lawyers, while the fourth meeting was held in Jabalia, with the participation of lawyers from Jabaliya, Beit Hanoun and Beit Lahiya, who numbered 10 lawyers, including two female lawyers. This series of meetings was concluded on 10/10/2019, with a meeting held in cooperation between MUSAWA and AISHA Association for Woman and Child Protection, at the headquarters of the Sharia Bar Association in Gaza with the participation of 32 male lawyers, including 13 female lawyers.

The meetings, entitled "The Relationship between Lawyers and Sharia Courts", resulted in the following observations made by the participants in the aforementioned meetings, which need to be addressed immediately, if proven true:

1. The case management approach followed by the Sharia Courts treats lawyers as court clerks, who receive commands from the judges, instead of being treated as agents of one of the parties to the dispute.
2. The Sharia Courts do not allow lawyers to enter or exit the courtroom except with prior permission of the judge, which undermines the principle of public litigation that shall be implemented in all proceedings; excluding secret hearings organized by law.
3. According to some participants, some Sharia court officials tend to direct the petitioners to hire specific lawyers to serve the partnership they have contrary to the rule of law and professional code of conduct, which, if true, may fall under the umbrella of corruption that requires treatment and accountability. It is worth mentioning that some Sharia court employees receive a proportion of the lawyers' fees for the registration of deeds’ transactions, according to some participants.
4. The failure of the Legal Inspection Service's control procedures, especially concerning regular and unannounced supervisory visits.
5. A Sharia judge once has insulted a female litigant, calibrated her, and published a post on Facebook revealing the details of a case she is a party to. According to some participants, another judge congratulated a litigant for having obtained a judgment in the proceedings before him, which might fall under the umbrella of violation of the judicial code of conduct; and thus, it requires to be addressed and held accountable.
6. Broader application of subjugating custody without legal basis, particularly as the Sharia Supreme Court did not issue any opinions regarding this measure, let alone the absence of any texts in the Palestinian legislation on this regard, which requires addressing the competent legislative bodies or referring the matter to the Supreme Court, in its constitutional capacity, to clarify the constitutionality of the measure.
7. Courtrooms are more like family meeting venues, their locations are inappropriate, and the language used there is informal, rather than a formal and legal mode of address.
8. Some judges receive telephone calls during trial hearings, which encourages some lawyers to do so as well. In addition, judges and court officials have conversations related to their work during the trial proceedings, and some employees tend to review the judge's agenda during the course of the hearing to set the dates for the consideration of other cases, which, if true, would prejudice the administration of the proceedings, undermine the standing of the judiciary, and violating the judicial code of conduct; which requires proper handling and accountability.
9. Some judges tend to read the sharia agents’ pleadings out loud so that the clerk can write them down, as they are poorly formulated.  
10. The agents keep their pleadings on flash memory, and the judges ask them to hand in their flash memory so their pleadings can be added to the case file, without being read out loud as required by the law, which, if true, constitutes prejudice to the right of defense that shall be addressed and held accountable.
11. Sharia courts lack waiting rooms and lawyers' restrooms.
12. The sharia courts’ schedules give priority to secret trials, which consumes the time of the agents waiting for their public sessions to start.
13. The length of procedures for the consideration of the separation applications filed by the engaged women, which takes more than a year, prevents them from moving forward with their personal and social lives
14. According to some participants, arbitrators are selected subjectively according to their relationship with judges; which constitutes a distinction between arbitrators.
15. As some participants have pointed out, many citizens and lawyers consult the judges, who consider their files, outside the court, which affects their impartiality in sentencing the judgment and the conduct of proceedings, and constitutes, if true, a serious violation of the code of judicial conduct; and thus requires accountability.

MUSAWA asks your Excellency to consider, verify, and address these remarks, in a manner that promotes the professionalism between lawyers and the judges and officials of the Sharia courts. We also ask you to implement the requirements for combating corruption, for adhering to the codes of conduct, for accounting anyone who violates their rules and principles, and for activating the supervisory role of your service over Sharia Courts, to preserve the trust of citizens in their performance, impartiality, and professionalism.

We hope that your Excellency will set an appropriate date to discuss the results of the aforementioned meetings and the observations of their participants, which will contribute to the development of positive performance, overcoming mistakes, and prosecuting those responsible for the manifestations of negative performance mentioned in this memo, which is based on the observations of the participants who attended the meetings.

With All Due Respect,

Issued on 21/10/2019

MUSAWA

A copy of this memo was sent to the Shari Bar Association to take the needed legal action in its regard and to set a date for discussing its findings.