2018-09-25

Ramallah

West Bank

Press Release from the Civil Society Organizations and the General Committee on the Constitutional Court’s Explanatory Decision Regarding the Legal Nature of the Police Service and the Military Concern

The Palestinian civil society organizations and their coalitions, and the Independent Commission for Human Rights, are deeply shocked at the explanatory decision of the high Constitutional Court No 02/2018 that was issued on 12/9/2018, which tends to consider the police system as a military body, whose personnel are subjected  to the military judiciary, and increases the military judiciary’s powers to include the Police and the civilians in addition to militants, and decides that some articles of the Police’s decree-law are  unconstitutional, in violation of the constitutional court’s competent and powers.

The competent institutions have legally analyzed the reasons behind this decision, and found the following:

The explanatory decision has explicitly withdrawn the progress made in the recent years in the regard of determining the jurisdiction of the military judiciary, which was expressed in the President’s decision on 15/1/1011 to stop referring civilians to military courts. The decision also violated many judicial rulings issued by the High court of justice and the general commission of the Supreme Court, which all stressed on the court’s jurisdiction in the prosecution of civilians, but the explanatory decision, has afforded the possibility of referring civilians to the military judiciary again, which explicitly violates the citizen’s right to access to their natural judge, according to article 30 of the Basic Law, and according to the international human rights standards, especially the international compact on civil and political rights. However, the explanatory statement by the head of the constitutional court on 23/9/2018, in which he reaffirmed that this explanatory decision does not include the civilians, will not change the reality of the decision, as the statement contradicts with the text and the operative part of the decision, in addition, it is devoid of legal value. 

Unprecedentedly, the explanatory decision encroached upon the jurisdiction of the civil courts, the mandate holder of the consideration of the disputes and offences in Palestine, as stipulated in the Basic Law, the Judicial Authority Act, and the Civil Courts Composition Act, which all asserted that military courts have no jurisdiction or mandate outside the scope of the military concern. The explanatory decision worked on reversing the exception into a rule, and the rule into an expectation, by expanding the military judiciary’s mandate at the detriment of the  civil judiciary, and by adopting the military concern’s explanation that permits the trial of civilians before the military courts as specified previously, which also leads to prosecuting the military and the police members before the military courts, regardless of the nature of the alleged offence, whether it is  of a civil nature or a military one, which deprives the militants and the police members of their right to access to their regular judge (The civil judiciary) in cases of a civil nature.

The explanatory decision of the militarization of the police service violates the international best practices of the democratic countries, the international human rights law, International Humanitarian Law, which all consider the police service as a civil service that is responsible for the protection accorded to the people and the civilian facilities, in time of armed conflict, according to the Fourth Geneva Convention. Moreover, militarizing the police service might be used as a pretext by the occupation to target it, noting that the international report of the United Nations  Fact-Finding Mission on the Gaza Conflict, presided over by Judge “ Richard Goldstone”, which was issued in 2009, considered the occupation’s targeting of police stations as similar to the targeting of the city’s facilities like hospital, school, and places of worship, which both violate the fundamental rules of the International Humanitarian Law.

The mentioned explanatory decision and what preceded it of constitutional rulings and explanatory decisions issued by the constitutional court in a way that violates the court’s law and the time-honored constitutional conventions in the constitutional review field, has confirmed the concerns of the civil society organizations and the Independent Commission for Human Rights, regarding the court’ role – which was proved by the court’s operational experience- in the infringement of constitutional values, especially the principle of constitutional supremacy, the principle of the rule of law, the principle of separation of powers, the principle of judicial independence and the human rights system as a whole.

In the light of what has been mentioned, and in the light of the current composition, and functioning of the high constitutional court, the civil society organizations and their coalitions and the Independent Commission for Human Rights call for an immediate reversal of the above-mentioned explanatory decision, especially that it is not published in the Palestinian official Gazette yet, and reiterates that the police service is a civilian body with civilian jurisdictions, and also call for adopting a narrow explanation of the military judiciary mandate, as it is a specialized judiciary with no mandate outside the military concern,  in compliance with the Basic Law and the right of every human being to access to their regular judge.

The signatories reiterate the joint previous call for cancelling the decision of forming the constitutional tribunal, bearing in mind that it was formed in contravention of the provisions of the Basic Law, and the high constitutional court’s law, and under a political division, and without a national acceptance or having due regard to the representation of women in the membership of the court.

The signatories also confirm their conviction that the formation of the high constitutional court comes at a later stage to regain the constitutional life represented in the conduct of presidential and legislative general elections, and in the consolidating of the Palestinian judiciary in the West Bank and the Gaza strip.

Signatories to the statement

The Palestinian Bar Association

Independent Commission for Human Rights

Palestinian NGO Network

Palestinian Human Rights Organization

Coalition for Accountability and Integrity - AMAN

The Civic Coalition of the Reform and Protection of the Judiciary

The Civic Coalition for Monitoring the Legislative Process

Issued on:

Tuesday, September 25, 2918