2019-09-12

West Bank

Human Rights Defenders / West Bank / position paper

The Constitutional Court’s Decision to Legalize Decree-Law No. (17) Of 2019 On Establishing a Transitional High Judicial Council is a Great Mistake that Impedes Efforts of Reform

MUSAWA- The Palestinian Center for the Independence of the Judiciary and the Legal profession express its disappointment “as expected” that the Constitutional Court legalized Decree-Law No. 17 of 2019 on establishing a Transitional High Judicial Council, which was granted wide-ranging powers that lack the professional and legal standards of assessing the judges’ performance and accounting them, but rather uses subjective standards that depends on the opinion of the Transitional High Judicial Council’s members, as provided in article 3 concerning the Transitional Council’s power to submit recommendations to the State President on dismissing judges or referring them to early retirement or placing them in other posts, in case the Transitional Council find that keeping them in their posts would compromise the dignity of the Judiciary and the citizens’ trust in it, without identifying the standards or procedures that shall be followed by the council. 

Not to mention that in its 4th article, the decree-law provides for granting the Transitional Council legislative powers to draft decree-laws amending the Judicial Authority Act, The Bill on the Composition of Regular Courts, and other related laws, which contradicts with the principle of separation between powers and with the legal value of the Judicial Authority Act as integral to the Constitution and can be only amended by the Legislative Authority, which enjoys the inherent jurisdiction for legislating and monitoring. However, the Executive Authority solely chose the Transitional Council’s members without consulting anybody, and without identifying the selection’s grounds, considerations, or standards, which entails the Executive authority’s devotion to the policies of singularity, exclusion and acquisition in the affairs that are directly connected to constitutional rights and internationally adopted constitutional standards, and entails its continuation to adopt the same old experimental approach in facing the degradation of the Justice System and the loss of confidence in it, apart from the constitutional principles and the requirement of communal consensus, and without respecting the principles of the State of Law, or the right to participate in shaping the citizens’ present and future. Paradoxically, the Constitutional Court legalized the approach followed by the Executive Authority inconclusively, which paves the ways for deepening the crises, and leading the Justice System to go back its old level of performance, which failed to gain the citizens’ trust, and filed to protect and preserve the provisions of the Basic Law and the International Covenants on the principles of separating between powers and the independence of the judiciary.

MUSAWA believes that this decision is a serious violation of the partnership principle and the democratize and constitutional values, a preparation for a judicial massacre, and an attempt to cover impunity, to consecrate hegemony instead of combating it, to implement the standards of loyalty to the Executive Authority, and to limit the judges’ right to adjudicate disputes filed in their dockets in accordance with law and conscience.  

The Constitutional Court’s decision and decree-law No. 17 of 2019 did not take the procedures and requirements of reform seriously, consecrated the policy of substituting people instead of substituting approaches, adopted the personal evaluation instead of professional evaluation, implemented singularity instead of collaboration, absented the internationally adopted reform tools and substituted them with establishing a Transitional High Judicial Council, and thus missed the chance for a real reform with communal participation.    

Based on the aforementioned threats, MUSAWA reiterates its demand for the President to abolish decree-law No. 17 of 2019 and to adopt a political will that enables all official and civil justice partners to choose the members of a transitional constitutional council, a committee or body by an objective standard that is based on the citizens’ trust in the integrity and efficiency of those members. MUSAWA also demands the President to adopt an impartial, neutral, and professional policy of evaluation for all employees at the justice system, without any exceptions, to ensure that the reform process is sound and legal and complies with the constitutional standards and international covenants. Besides, the reform shall enable accounting defaulting judicial officials, and keep their decent counterparts, in a manner that preserves the rights of qualified officials and invariably holds the violators of labour rules for judges accountable, in the context of a comprehensive reform process for all the official bodies of the Justice System, including the Constitutional Court, the Regular Judiciary, the Sharia Judiciary and the Public Prosecution, as the Executive Authority’s repeated failures to reform the Justice Sector represent an obligation to adopt communal participation in the process of selecting the reform approaches and tools, which is adopted by many counties internationally.         

There are no substitutes for professional comprehensive evaluation or accountability. Will the Executive Authority respond and go back on its mistake, or will it stick to its policies of hegemony and singularity?

Issued on 12/9/2019

MUSAWA