2018-09-23

Ramallah

West Bank / position paper

Position Paper on

The explanatory Decision of the High Constitutional Court No 02/2018 for the Interpretation request No (4) - judicial year 3

The Palestinian Center for the Independence of the Judiciary and the Legal Profession –MUSAWA- attentively revised the explanatory decision of the High Constitutional Court no. 02/2018 for the interpretation request number (4) - judicial year 3; and we believe that the decision included serious risks that threaten the state of law and devastates  the constitutional principles that govern the three authorities; and represents reversal on  citizen’s right to litigation before the appropriate court (The civilian ordinary judiciary); and it tends to militarize the regime, as it granted the military judiciary broad powers and authorization that transfer it from being  exceptional judiciary system into being an ordinary judiciary system through mandating it to examine and adjudicate disputes that involve a militant, whether it is emerged while the militant is on duty or for any other reason; and whether the dispute was between a militant and another militant or with any other citizen. Moreover, the decision authorized the military judiciary to prosecute civilians for the so-called crimes that threaten the country’s internal and external security; and it rules, in contrary to the principles governing the work of the Constitutional Court, the  unconstitutionality of the Police Decree- Law and subjected civil police to the mandate of the military judiciary, all within the context of examining explanatory request and not within discussing an appeal related to the constitutionality of a legal text. 

MUSAWA sees this decision as a violation of the Basic Law and the international conventions to which the state of Palestine has acceded; and runs contrary to the jurisprudence of equivalent constitutional courts, including the Egyptian High Constitutional Court, which ruled that the military judiciary is an exceptional judiciary specialized in prosecuting the militants for acts categorized under military crimes and occur while they are on military duties or caused by such duties;  and ruled also that the Civil Police is not within  the mandate of the military judiciary in addition to ruling  the unconstitutionality of some provisions of the Egyptian Police Law that categorized the civil police under the umbrella of military judiciary.

 MUSAWA hopes that all Palestinian Jurists, civil society organizations and social actors, would take all necessary steps to prevent publishing the decision and to ban implementing it in defense of the civic state and in fulfilment of the state of Palestine’s international commitments and to guarantee citizen’s right to litigate before the  appropriate court within the framework of the civilian state of law that is based on the  principle of separation of powers, and on the prevention of extending the power of exceptional judiciary and the military judiciary.

MUSAWA expresses its surprise from the statement of the head of the court that contradicts with the transcript of the explanatory decision– which is clear with no equivocation or ambiguity- that grants the military judiciary the power to prosecute civilians and civil police, in an expansion in power, which is granted only to the military judiciary, unlike counterpart courts and opposite to the opinion of the majority of legal experts.  MUSAWA  also believes that the statements of the head of the Court requires the Constitutional Court to revise its decision before being published in the official gazette  in order to release it according to the formula mentioned in the transcript of the explanatory decision and with clear excluding  of civilians and the civil police, especially that the decision was written in Arabic, and ruled, to the contrary of the constitutional court work, the unconstitutionality of the Police Decree-Law that was not subject to appealing and was tackled within the context of explanatory request that differs on the level of core and meaning from a judiciary ruling. 

MUSAWA

Issued on 23/9/2018