2017-11-23

Ramallah

West Bank / position paper

Calling on the High Judicial Council to Drop their Case against Judges

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession was informed that the High Judicial Council, represented by Judge Imad Saleem, requested the High Court of Justice to suspend the strike which was announced by the Palestinian Judges Association, and they established a judicial committee, headed by Judge Rafiq Zuhod, to look into the said case. MUSAWA also learned that the Judges Association contacted the Bar Association for selecting members of the Bar’s Council to represent the Judges Association in the aforementioned case, whose hearing will be held next Sunday 26/11/2017, and that the Judges Association is in the process of preparing a plea for submission, as appropriate.

The said action was taken following the Judges Association’s statement, which included among other things a call for bringing criminal action against those who are accused of contempt and the kidnapping of the lawyer Mahmoud Husein from the courtroom of Nablus’ magistrate court and court of first instance. In a statement issued on the mater, the Judges Association referred to the reluctance of the official authorities concerned to apologize to the judicial authority for the harm caused by the said crime, which has prejudiced the image and reputation of the judiciary. Furthermore, the Judges Association noted that the investigation procedures established by the competent authorities upon the request of Mr. President concerning the said crime have not been announced, and that the government has been reluctant to announce the investigation committee and the measures taken by the committee regarding the matter at hand. The statement mentioned as well that the Public Prosecution has not yet declared the actions it has taken concerning the interrogation of the accused and committing them for trial, which required the Judges Association to suspend its work in criminal cases.

The Judges Association and its member judges were surprised by the actions of the High Judicial Council, represented by its president. Instead of going forward with the criminal case against the accused of contempt of the court, and instead of demanding that the accused, the abettors, and the accomplices to the violation mentioned above apologize to the judiciary, the High Judicial Council established proceedings against the judges.

MUSAWA sees that the facts mentioned above, if true, indicate that the judicial administration is dealing with the judges as workers, which contributes further to the gap between the judicial body and its administration. Furthermore, we believe that the establishment of the judicial committee to convene in its capacity as a High Court of Justice by the Head of the High Judicial Council, the Council itself, or any of its members is contrary to the established legal rules and judicial principles which state that the adversary does not choose their judge. According to the law, the oldest member of the Supreme Court, who is not a member of the Council, should have borne the responsibility of forming such a body.

We believe that the action taken by the High Judicial Council may stir-up conflict between the judiciary and the Bar Association. It is inconceivable that the courts would not respond to the decisions of the Bar Council relating to the suspension of work (strike), given that the courts usually respect the decisions of the Bar Council. Moreover, filing a case to the High Court of Justice to suspend the strike which was announced by the Judges Association and which is in line with the decision to suspend work, announced by the Bar Council, makes the case itself irrelevant in terms of outcome, knowing that the courts should abide by the suspension of work in response to the decision of the Bar Council, and refraining from adhering to the decision of the Bar Council would give rise to  seriously conflicted relations between the Bar and the judiciary.

The demands of the High Judicial Council, as evident in its case, to implement the decree-law issued on 08/05/2017, which prohibits the judges from announcing strikes, is contrary to the provisions of the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights which Palestine has acceded-to, and the same applies to the Basic Law. This gives rise to suspicions of non-constitutionality which would prevent the judges from asking the courts to enforce it, and it marks the procedures of the judicial authority as prejudicing to the rights and freedoms of the citizens, including the judges. Furthermore, this represents a warning sign of the disintegration of the judicial administration from the judicial body, which may be interpreted as siding with the executive authority, which may negatively affect the independence of the judiciary.

Without any interference in or influence on the judicial work, we demand that the High Judicial Council drop the case and respond to the requests of the judges set-out in their announced statements as well as the notes of the Judges Association which were submitted to the High Judicial Council. We call on the Civil Society Organizations to act upon this serious matter, to attend the trial, and support the demands of the Bar Association and the Judges Association, given the urgent need to expedite the bringing of those accused of committing the crime of kidnapping the lawyer from the courtroom to justice, and dissolving the security committee as well as banning the so-called "arrest upon the request of".

Issued on 23/11/2017

MUSAWA