2023-02-21

ًWest Bank

West Bank / position paper

Lawyers, jurists, and those concerned with the public interest have circulated the news of the instructions issued by the chief justice, upon a decision by the High judicial council on 15/02/2023. This constitutes a circumvention of the president’s decision to abolish the decree-law amending the law of civil and commercial procedures, and works to establish hegemony, monopoly of power and the overstepping of jurisdiction, which violates the recognized values and constitutional principles. Moreover, a legislation is amended by a non-legislative instrument, as it amends a law, such as the law of civil and commercial procedures that is supplemental to the constitution, by instructions that are in its essence an administrative decision. These instructions are in no way, shape, or form a legislative decision, not to mention being issued by an incompetent body that has no right to legislate, and in a manner that usurps the authority of the competent body and violates personal and collective rights, most notably the right to access justice and the right to a fair trial. Therefore, we cite what was entailed in the first article of these instructions that amended Article (121) of the in-force law of civil and commercial procedures, which states that “The court may adjourn the case from time to time as circumstances warrant. There may not be more than one adjournment for the same reason unless the court is convinced this is necessary”, and it replaced it by stipulating that adjournment is not allowed, except by a judicial decision with legitimate and well-laid out reasons.

Aside from the amendment, the first Article of the instructions constituted a flagrant interference in the judge's work, which is a criminal offense, in addition to questioning the judge's conviction, treating him with inferiority, and interfering with judicial work, which is an overstepping of the high judicial council’s jurisdiction.

In the second Article of the instructions, the phrase "preventing case registration" was used. This practice is regarded as a grave violation and restriction of the right to access justice in a manner that eliminates this right, which is contrary to the provisions of the Basic Law, the values and constitutional principles enshrined in the Basic Law, and the international covenant on civil and political rights that Palestine is bound by, as well as a complete disregard for the principles and values of justice.

The instructions changed the judicial inspection department's competence, turning it into a foreman or supervisor that oversees the work of court registrars and judges, far exceeding its inherent authority.

We at MUSAWA-The Palestinian Center for the Independence of the Judiciary and the Legal Profession, demand that these instructions be immediately revoked, and that the esteemed judges and lawyers maintain and adhere to the laws in force, uphold their constitutional and legal powers, and set aside these instructions due to their dangerous infringement on the social contract and citizens' fundamental rights. It is also an outrageous interference in the judges' work and independence, not to mention a restriction of the litigant's rights that defies the lawyers' mission and duty.

The power abuse exemplified by these instructions requires legal accountability, so we urge the State Audit & Administrative Control Bureau (SAACB), the Anti-Corruption Commission, and all relevant and competent official bodies to carefully examine these instructions. We also request the Bar association to address the competent official bodies regarding the violations and risks entailed in these instructions.

21/02/2023

MUSAWA