2017-06-22

Ramallah

West Bank

His Excellency the Prime Minister Dr. Rami Hamdallah,
By the Minister of Justice Mr. Ali Abu-Diak,

Subject: The Draft Decree-Law on the Judicial Body of the Palestinian Security Forces No. () of 2017

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession extend their greetings to you, noting that we have obtained a copy of the aforementioned draft decree-law. We learnt that the bill has been approved on the second reading by the government. As a non-governmental, independent, professional and impartial watchdog organization, MUSAWA sees that the said bill violates the provisions of Article (101/2) of the Palestinian Basic Law, which states that “military courts shall be established by special laws. Such courts may not have any jurisdiction beyond military affairs”, that is outside the scope of acts which occur as a result of or during the time when the militant is carrying-out his military duties.

According to the constitutional text (the Basic Law), which should be explained in the narrowest sense, the natural (regular) judiciary is the holder of the overall jurisdiction in adjudicating all crimes and disputes except what is excluded by a special provision. Any exception of this kind, whether in terms of language or legality, should not be expanded but rather narrowed to the tightest limit.

For the purposes of this memo, if we overlook the Civil Society Organizations’ reservation, including MUSAWA, about the expansion in issuing legislation in the form of draft-laws, and if we suppose that all of the conditions of Article 43 of the Basic Law are met, we give the following notes after studying the bill:

1-    Defining the jurisdiction of military courts based on job titles, i.e. military ranks, rather than the subject and parties of dispute.
2-    The groups that should abide by the provisions of the decree-law are expanded to include the civil police.
3-    The jurisdiction of military courts is expanded to include the adjudication of civil suits.
4-    The jurisdiction of military courts is expanded to include the adjudication of criminal suits where one of the parties is a civilian.
5-    Despite the fact that the bill states the establishment of military courts of appeal whose judgments are final and which are subject to the approval of the Commander-in-Chief, we believe that these judgments must be challenged before the civil court of cassation so as to guarantee the proper application of the law, considering that the court of cassation is a court of law.

Accordingly, we ask your Excellency to reconsider the texts related to the aforementioned topics to ensure that the jurisdiction of military courts is limited to military-related matters away from one’s job title; civil and criminal disputes, where one of the parties is a civilian or which are committed by a militant as a citizen and due to his relations with other civilians, no longer fall within the military courts’ scope of work; and no longer considering the civil police as one of the groups that should abide by the provisions of this draft-law. All of this should be stated clearly and evidently. This is in addition to considering the classification of an offence as the basis of the military courts’ jurisdiction, and subjecting the judgments pronounced by the military court of appeal to the supervision of the court of cassation.

With all due respect,

Issued on 22/06/2017

Chairman of MUSAWA’s Board of Directors

-    A copy to the honorable Legal Adviser to His Excellency the Prime Minister, Hassan Al-Ouri.