2019-09-05

West Bank & Gaza Strip

West Bank / Gaza / position paper

Civil Society Organisations in the West Bank and Gaza Strip Call for Judiciary and Justice Sector Reforms

On 15 July 2019, Palestinian President Mahmoud Abbas issued two laws by decree amending the Law on the Judicial Authority and establishing a Transitional High Judicial Council (hereinafter ‘the Transnational Council’), which were published in the Official Gazette on the following day. Then, on 29 July 2019, the President issued presidential decrees promoting 33 judges, with a recommendation from the Transnational Council. In addition, on 31 July 2019, a presidential decree was issued creating the High Coordinating Council for the Justice Sector, headed by the President of the Transitional Council, and composed of the President’s legal advisor, the Minister of Justice, the Attorney General of the State of Palestine, the General Director of the Police, the Chairman of the Palestinian Bar Association, and the Director-General of the Independent Commission for Human Rights (ICHR).

These laws by decree, decisions, and presidential decrees come in light of the continuing crisis in the Palestinian political system and the absence of general elections, years since the end of the constitutional mandate of both the Palestinian President and the Palestinian Legislative Council (PLC), which was dissolved by an explanatory decision rendered by the Supreme Constitutional Court, in violation of the principles of the rule of law and the separation of powers. The laws by decree also come in light of the unprecedented monopoly in decision-making by the executive authority, in addition to the exclusion of the Gaza Strip as well as the Supreme Constitutional Court from proceedings affecting the judiciary and justice affairs, in violation of the right of Palestinian citizens to genuine justice and litigants’ rights before the judiciary.

The aforementioned laws by decree have given the Palestinian President the exclusive authority to form a Transitional High Judicial Council, and granted this Council broad powers over the judiciary and the Public Prosecution, in addition to the possibility to directly appoint and dismiss judges at all judicial levels, to refer them to early retirement, or to re-assign them to other positions. These laws by decree have reappointed and granted members of the former High Judicial Council the power to draft laws amending the laws on the judiciary. In addition, they have granted the Transitional Council a one-year term with the possibility for a six-month extension based on a recommendation by the Transitional Council itself and a presidential decision in this regard. Furthermore, the laws by decree have given the President the authority to pay an unspecified monthly sum to retired judges who were appointed to the Transitional Council as an addition to their pension. This also applies to the Chief Justice Chancellor of the Transitional Council. Moreover, these decrees have set the retirement age at 60 years, which applies to all judges but excludes the judges of the Transnational Council. At the same time, a number of judges over the age of 60 have been transferred to the High Court, to allow them to maintain their position even after the expiration of the Transnational Council’s mandate, which is in direct violation of the principle of generality and abstraction of legal texts, is contrary to the Basic Law and the principles of equality and non-discrimination.

The abovementioned laws by decree have resulted in the referral of a quarter of Palestinian judges to retirement, including judges known for their integrity and impartiality, and judges suspected of corruption but who have not been investigated, who must be held accountable should corruption be proven. This involves violations of the Palestinian Basic Law, constitutional principles and values, and the Law on the Judicial Authority, and are contrary to the principles of integrity and impartiality and requirements of good governance. They also give rise to a conflict of interests and stand in violation of court decisions in that the adoption of the two laws by decree failed to be carried out through prior consultation of the High Judicial Council, and were instead issued through recommendations by the Presidential Committee for the Development of the Justice Sector. These laws by decree further involve constitutionally prohibited discrimination between judges with regard to retirement age, which does not apply to judges of the Transnational Council. They further overlook the structural imbalance in the Palestinian judiciary as a result of the interference by the executive power and its apparatuses with the justice sector, and its synergies with successive High Judicial Council administrations, weakening their institutional composition and functioning and violating the independence of the judiciary and judges. Moreover, the executive authority’s monopoly in conducting the reform is in continuity to its previous attempts, which have failed, despite genuine justice being a right and duty of Palestinian society in the West Bank and Gaza Strip.

The presidential decrees and decisions have established the High Coordinating Council for the Justice Sector and promoted 33 judges. The Presidential Decree forming the Coordinating Council is in violation of the “exclusive” constitutional powers of the President, as set forth in Article 38 of the Basic Law, explicitly affirming that the President exercises his executive powers and duties as set out in the Basic Law, which does not include such powers. In addition, not declaring the bases and criteria followed in the decision to promote certain judges within the judiciary indicates that the laws by decree and presidential decisions seek to fill the void in the judiciary after the referral to retirement has been made and that the promotions were not a result of an objective, genuine, and professional assessment of judicial performance, eventually leading to judicial promotions.

The Chief Justice Chancellor of the Transnational Council shall not, constitutionally and legally, occupy the position of a judge, which may be appealed without a time limit and is considered void as it affects the Basic Law and the constitutional legislator’s will. Thereby, the Chief Justice Chancellor of the Transnational Council is prohibited from exercising any powers vested in the President of the High Court of Justice by the Judicial Authority Law and other laws, as the President of the High Court of Justice is a judge while the Chief Justice Chancellor of the Transnational Council is not. One example is the role of the president of the High Court in the disciplinary lawsuit that is raised against judges under the Judicial Authority Law. This means that any power exercised by the Chief Justice Chancellor of the Transnational Council as head of the High Court or as a judge, render such powers void, due to their violation of the Amended Basic Law. In addition, judges have a right to freedom of expression enshrined in the Basic Law and international treaties and standards, which must be respected.

Accordingly, the undersigned Palestinian civil society organizations in the West Bank and Gaza Strip call for:

1. The repeal of the laws by decree and precedential decisions issued recently on judicial affairs and an end to the executive power’s interference with justice affairs, noting that the executive authority bears the responsibility for the deterioration in the judiciary, the justice sector, and the failed efforts to carry out reforms.
2. The organisation of community-based consultations in all Governorates of the West Bank and Gaza Strip to reform and unify the judiciary and the justice sector, including the Supreme Constitutional Court, within a specified timeframe and with a clear methodology aligning with the principle of the rule of law, in addition to conducting a coordinated and widespread advocacy campaign using various advocacy tools locally and internationally (including the United Nations human rights mechanisms, if necessary), to exert continuous pressure on the executive authority and its organs to cease its interferences with the judiciary and the justice sector, and to accept the outcomes of the community-based consultation process, bearing in mind that reform is a right of society and that the popular will remains the source of all powers, while working seriously towards holding accountable those already proven guilty or those suspected of corruption, as well as achieving genuine justice and effective remedies.
3. President Mahmoud Abbas to announce the date of general presidential and legislative elections as soon as possible, to end the deep crisis affecting the Palestinian political system, and to create an electoral environment based on and conducive to the maintenance and promotion of fundamental rights and freedoms, respecting the results of general and comprehensive elections, and maintaining their regularity and continuity, simultaneously, in the West Bank and Gaza Strip.

Organizations endorsing this position paper:

1. The Palestinian Center for Human Rights (PCHR) 
2. Al-Haq
3. Al Mezan Center for Human Rights
4. The Center for Defence of Liberties and Civil Rights “Hurryyat”
5. The Palestinian Center for the Independence of the Judiciary and the Legal Profession (MUSAWA)
6. Prisoner Support and Human Rights Association (ADDAMEER)
7. Al Dameer Association for Human Rights 
8. Social and Economic Policies Monitor (Al Marsad)
9. The Palestinian General Union of People with disability
10. QADER for Community Development 
11. ADWAR Roles for Social Change Association
12. Women Media and Development (TAM)
13. Women’s Coalition for Justice and Justice and Equality (ERADA)
14. Palestinian Federation of Women’s Action Committees 
15. Bisan Center for Research and Development 
16. Palestinian Working Woman Society for Development 
17. Teacher Creativity Center
18. Cooperation for Community Development Association 
19. Mother’s School Society
20. Palestinians Businesswomen’s Association (ASALA) 
21. Association Najdeh
22. Rural Women’s Development Society 
23. The Palestinian Consultative Staff for Developing NGOs (PCS)
24. Young Men Christian Association (YMCA) - Rehabilitation Program
25. Star of Hope for the Empowerment of Women with Disabilities 
26. Advocacy Association for Development and Rehabilitation 
27. Society of Physically Handicapped People
28. Al-Dameer Society for Persons with Hearing Disability
29. Palestinian Authority Crescent Relief and Development
30. Brilliant Tomorrow for Homes Sons Society
31. Kotof El-Kheir Association
32. Al-Amal Ass. For the Deaf
33. Association of Female University Graduates in the Gaza Strip
34. Community Media Center
35. Gaza Culture and Development Group
36. Arab Center for Agricultural Development 
37. The Palestinian Developmental Women Studies Association/ Gaza
38. Al-Waleed Charity
39. Sharek Youth Forum
40. Journalists Rights Advocating Association 
41. Women’s’ Affairs Center 
42. Dr. Haider Abdel Shafi Center for Culture and Development
43. Palestinian Najadah Association 
44. Center for Women’s Legal Research & Counseling and Protection
45. Aisha Association for Women and Child Protection 
46. Coalition for the protection of Human Dignity for Children
47. Women Program Center
48. Hemaya Center for Human Rights 
49. Women’s Awareness Coalition
50. The National Society for Democracy and Law
51. South Women Media Forum
52. Palestine Arab Relief and Development Authority
53. Community Training Center and Crisis Management
54. Central Union of Cultural Centers

TRANSLATED BY AL-HAQ