2023-03-05

West bank

West Bank / position paper

Once again, the appointed High Judicial Council issues instructions amending laws supplemental to the constitution-this time the Penal Code- without legal competence or constitutional legitimacy, and with a weak claim: “For better management of criminal cases, and fast, low-cost trial procedures” as described by its issuer. We stress the illegitimacy and unconstitutionality of such instructions, demanding that they be set aside and abolished immediately. Therefore, this position paper aims to show all the risks entailed in these instructions, as they restrict and blatantly interfere with the judges’ work, turning them into thoughtless executioners. It also violates the fair trial guarantees and negates the purpose of criminal justice which transforms the judiciary into a tool for repression and confiscation of rights.

These instructions include, but are not limited to, violations of the fair trial guarantees, as Article (5) of the instructions considered that the reports prepared by the judicial officers are evidence without requiring the presence of the officer before the court, which restricts the defendant’s right in proving his innocence of these claims by not allowing him to confront those who prepared these reports. This constitutes a flagrant breach of the confrontation principle, the right to a defense, the presumption of innocence, and the right to a fair trial. The instructions also treated the judicial officers’ reports, including the detainees’ testimonies (The international criminal justice principles were established to address the drafting of those records and the taking of those testimonies under pressure, coercion, and torture), as evidence without requiring the officers to appear before the court to prove these reports. Accordingly, this turns them from a piece of evidence with “relative” authenticity (confutable evidence) to evidence that holds genuine authenticity or else known as “self-authenticating”, which infringes on the guarantees of the right to a defense and a fair trial, especially the detainees or the accused to which the instructions authorized that they be tried without the presence of a lawyer.

Article (7) of the instructions granted another authority and power to the judicial officers at the expense of the defendants’ inherent rights, by stipulating that the defendant’s testimony before the judicial officer is considered an official document without requiring its organizer to testify before the court, nor can the defendant submit rebuttal evidence. The judicial officer is required to appear before the court in one rare case only when the defendant acknowledges the testimony as a confession. The instructions also expanded the number of excuses for the absence of witnesses, and considered these testimonials as legally binding and that it is sufficient to only recite their testimony to be considered as evidence in the trial, contrary to jurisprudence. For example, it considered the witness's residence in Gaza, Jerusalem, inside the Green Line, inside the occupation prisons, or outside the country as an excuse not to testify.

The instructions considered that the presence of the lawyer in misdemeanor cases is not obligatory, and therefore it is not permissible to postpone the proceeding due to his absence. The law stipulates the presence of a lawyer in misdemeanor cases, but that the trial can also proceed in his absence, as he is marked as present, whereas the instructions completely excluded and eliminated the presence of the lawyer in misdemeanor cases, which threatens and violates the defendant’s rights.

The instructions stated that criminal cases that are awaiting initiation by filing a complaint should be dropped if the victim or the plaintiff fails to attend two sessions in a row, despite having legitimate excuses. This violates the right to redress, not to mention that is a misplaced inference, as Article (5) of the law establishes a statute of limitation period where the complaint is not accepted after 3 months.

We deem the policy of amending the legislations that affect laws supplemental to the constitution, such is the case with these instructions, by an incompetent body that usurped the powers of the legislative authority, as a dangerous approach that leads to circumvention of legislative texts such as the Basic Law, for the benefit of both the executive authority and the judicial council (that is appointed by the executive authority).

The severity of this illegal and unconstitutional approach is that it came after the cancellation of decree-laws that were aimed at passing the same items entailed in the instructions, and the executive authority was forced to cancel them to avoid the dire consequences that will be inflicted upon them by the international and local society.

These instructions aim to consolidate and perpetuate the policy of control, hegemony, and utter disregard for the social contract and the citizen’s rights, as well as undermine the principles of the rule of law such as the separation of powers, rule of law, and the independence and impartiality of the judiciary. 

We hope the judges commit to the legal oath they took upon assuming their judicial functions, and to their constitutional rights and powers, which mandate that their decision is independent and subject only to law and conscience. The same applies to lawyers who also took a legal oath to defend citizens' constitutional rights and freedoms, and the principles of the rule of law and good governance, as we urge them to uphold the mission of their union and their clients’ rights, and their professional dignity. We also call on civil society institutions, social actors, and all citizens to raise their voices in defense of their rights of access to justice and fair trial guarantees within a strong, independent, and impartial judiciary.

These instructions and others like it should be abolished immediately, given that they tamper with the Basic Law, topple the independence of the judiciary, eliminate the fair trial guarantees, and undermine the principles of criminal justice.

05/03/2023

MUSAWA