2022-03-10

West Bank

West Bank / Announcement / Core Program / position paper

Position Paper Demanding the Abolishment of Decree-law on Administrative Courts and its Amendment

Failed to achieve its goals and stormed the legal positions

The bunch of decree-laws amending the judicial legislation that was published on 6.3.2022 in Exceptional volume (26) of the Palestinian Al Waqae (the Official Gazette), included Decree-law No. 13 for the year 2022 amending Decree-law No. 41 for the year 2020 regarding administrative courts. The Decree-law was issued and published in the dark and in disregard of society in all its spectrums, especially those addressed with its provisions, and without subjecting it to dialogue and discussion regarding its constitutionality, and the availability of conditions and requirements for its issuance, not to mention the texts and provisions it contained that ravaged constitutional and human rights principles upon which legal regimes have settled, including the principle of the stability of legal positions, and their protection as an expression of the stability of community security and the preservation of the rights of its members and groups within the framework of the implementation of the principles of legality and legitimacy alike.

The Decree-law was marred by what marred the Decree-laws in terms of the preamble and in terms of texts, since its issuance was based on the PLO Basic Law, which has nothing to do with Decree-laws, and has been customed to be used for political and not legal purposes in any case, and this reference was replaced by what is supposed to be based on, which is the Declaration of Independence; being an integral part of the social contract, as the aforementioned declaration constitutes alongside the Basic Law the constitutional basis for the intended state of Palestine. Likewise, the preamble of the Decree-law did not indicate the constitutional provision or text on which it is based in the Basic Law, since this was missed in the preamble of the Decree-law in a desperate attempt to constitutionalize the Decree-law without clarifying its textual base because of its legislator’s awareness of the absence of a text in the basic law that may aid him so he resorted to the use of phrases of the Basic law of 2003 and its amendments. 

This decree-law dedicated the dominance and dependence of the administrative courts to the President (the head of the Executive Authority ), and expanded his individual powers to appoint not only the judges of the administrative courts, its president, his deputy, and the head of the Supreme Administrative Court, but also added the power and authority to appoint the head of the Administrative Prosecution to the president alone, as the president is the only one who appoints the President of the Administrative Court and the Head of the Administrative Prosecution, and appoints all other judges of the administrative courts of all levels through non-binding consulting with the Minister of Justice and the Chief Justice Chancellor appointed by the President in his turn. This is a blatant expression indicating the Executive Authority’s appropriation and absolute dominance over the judicial operators in the administrative courts, of whom the General Assembly of the Administrative Courts will be formed. This establishes, from the outset, the subordination of the administrative courts as an institution and as individual judges to the president, which opens the door wide to restrict the independence of the administrative courts and their judges, like all other courts such as the Constitutional Court and the regular courts, and to a large-scale interference in the performance of the courts in a manner consistent with the rhythm of the Executive Authority ’s policies and interests which strikes the core of the principle of impartiality and independence of administrative courts as a legitimate judiciary, and paralyzes the judicial administration to become captive to the will of the Executive Authority  and the directions of its bodies.

Perhaps the most prominent and most dangerous of what was stated in this Decree-law is what was stipulated in Article 7 of it, which came as an amendment to the third paragraph of Article (54) of the decree from the original Decree-law abolished by the Constitutional Court, where the paragraph after its amendment stipulated: (The Supreme Administrative Court shall undertake upon its formation,  the examination of the appeals submitted against the judgments issued by the Supreme Court / Court of Cassation, in its capacity as mentioned in paragraph (1) of Article 54 of the Decree-Law No. (41) of 2020 and until that time, such appeals are temporarily registered with the Registrar of the Supreme Court / Court of Cassation within 30 days from the enforcement of the provisions of this Decree-law). What does this amendment tell?

First: The judicial provisions issued by the Supreme Court / the Court of Cassation in its administrative capacity since 11.01.2021 “the date of its publication” until the formation of the Supreme Administrative Court, which the amended Decree-law did not indicate a time for its formation, as the amended Decree-law contained the phrase immediately after its formation without following it with a specific date for that formation, and contained that appeals shall be  temporarily filed whatsoever, which makes it not time-bound - subordinate and subject to appeal, provided that the appeal is filed with the Supreme Court Registrar within 30 days as of 27.2.2022, since it was stated in the amended Decree-law that its entry into force starts from the date of its issuance and not the date of its publication.

Second: According to the text of Article 7 of the amended Decree-law detailed above, the registration of appeals against judgments issued by the Supreme Court / Cassation in its administrative capacity, and being kept in the drawers until the formation of the Supreme Administrative Court, keeps the legal positions created under those provisions subject to change, amendment or demise in perpetuity, which lead to the loss of its practical value and he paralysis of its effects.

Third: The amendment mentioned in Article 7 suggests the abolition of the definiteness of the provisions issued since 14 months, blows their effects and consequences, and keeps the litigant in whose his favor they were issued, in a state of constant anxiety, instability, and fear of being surprised by abolishing his legal position and terminating his job after years of its stability. And this constitutes a serious and dangerous threat to the security of the employees whose return to their jobs was judicially determined, so that their continuation in occupying their positions becomes precarious, and they lose knowledge of the fate of their occupancy of that job or any change that may affect it after the formation of the Supreme Administrative Court and its judgment in the appeal against the judgment issued in their favor. Perhaps the case of the employee of the Constitutional Court, Duaa Al-Masry and the professors of Al-Quds University, whose abolishment judgments were revoked and returned to occupying their positions, is a good example of that.

The issuance of the Decree-law amending the original Decree-law indicates a catastrophic failure in justifying the purpose of their issuance, as the Executive Authority  claimed when issuing the original Decree-law that it was motivated by the implementation of the principle of litigation on two levels, “which was assassinated in other judicial Decree-laws, including the Decree-law amending the law of Court Formation, the Decree-law Amending the Code of Criminal Procedure, and the Decree-law amending the Code of Civil and Commercial Procedures.” However, its texts included a statement that the judgments issued by the Supreme Court / Cassation in its capacity as an administrative court were final. The amended Decree-law came under the pretext of speedy settlement of cases, and included the text of Article 7, according to which there is no specific time for adjudicating cases, but also overturned the established constitutional principles to protect the legal positions of male and female litigants.

It is also noteworthy that the original Decree-law indicated the Executive Authority’s intention to form an administrative judiciary separate from the Formal Judiciary without attaching, to the Decree-law issued for this purpose, any explanatory memorandum justifying the purpose, reasons, justifications, and financial sources secured to balance that formation, and the qualified human cadre that is to occupy the judicial position in the administrative field. In view of all this absence, it resorted to a purely formal amendment to the original Decree-law to replace the word “administrative judiciary” with the word “administrative courts,” while keeping these courts as a separate administrative judiciary. It seems that the purpose behind this amendment is the intention of the Executive Authority to access to judges from the regular judiciary to fill in the position of Administrative Judge, by transferal or delegation, which contradict the purported basic purpose of issuing the original Decree-law. The thing that clearly proves that Decree-laws are based on an interest-based motive rather than on a legal necessity or a need for institutional development. This is in stark contrast to the provisions of Article (43) of the Basic Law, which the Executive Authority used to promote having had relied on, in order to promote and justify the issuance of Decree-laws.

These shortcomings and sins that the Executive Authority insists on continuing to implement confirm once again the insistence of the Executive Authority to proceed in violating the values, principles and texts of the Declaration of Independence, the Basic Law, and international agreements and covenants to which the State of Palestine acceded and by whose provisions it is bound, and prejudice the rights of all those dealing with the Judiciary and its courts. This calls for a broad and unified societal rejection of the issuance of Decree-laws, or at least to stop their issuance without societal consensus. Will the curtain fall on the tragedy of tampering with constitutional principles and the rights of litigants, judges, lawyers, and citizens? Will the Executive Authority stop continuing its exclusivity, dominance, and exclusion of the rights and will of its society? Will we otherwise witness further demolition of the structure of the state of law and the embodiment of a totalitarian regime that does not value neither law nor freedom?

Let Decree-laws amending judicial legislation, including the Decree-law on administrative courts be abolished immediately and without delay.

MUSAWA

Issued on 10.3.2022