2019-08-19

Gaza

Gaza

The Judicial Competition for Appointing Sharia Judges in Gaza Might Get Labelled As Unconstitutional

On 19/6/2019, the High Judicial Council in Gaza announced conducting a judicial competition for appointing Sharia Judges following article 11 of the Sharia Judiciary Act No. 3 of 2011 applicable in the Gaza strip, and on 5/8/2019, the Council announced the winners’ names list, which did not include any woman.

In its capacity as an independent watchdog organization, MUSAWA- The Palestinian Center for the Independence of the Judiciary and the Legal Profession, has identified the competition’s legal grounds, proceedings, and results, and has concluded that they represent an encroachment on constitutional rights, most notable aspects were:

1. Discriminating against women and depriving them of their right to hold a post of Sharia Judge in an explicit contradiction with article 9 of the Basic Law, which prohibits all forms of discrimination and distinction between citizens, as it provides for “Palestinians shall be equal before the law and the judiciary, without distinction based upon race, sex, color, religion, political views or disability”, in blatant contradiction to the provisions of the 4th paragraph of article No. 26 of the same law, which provides for “Palestinians shall have the right to participate in political life, both individually and in groups. They shall have the following rights in particular: To hold public office and positions, in accordance with the principle of equal opportunities”, and in explicit incompatibility with the provisions of the International Bill of Rights, including the International Covenant on Civil and Political Rights, and on Economic, Social and Cultural Rights, and the Universal Declaration of Human Rights.

2. Article 11 of the competition’s announcement deprived the Law Faculties’ graduates, who are licensed to practice the legal profession, of their right to compete for the announced post, which is misleading, as the Sharia and Law faculties certify students who enjoy all the requirements of joining the Sharia Legal Profession.

3. Article 11 also deprived the Persons with Disabilities, who meet the requirements of the judicial post, of their right to participate in the competition, on the grounds of lack of medical clearances, which represent a deviation from the provisions of the Basic Law and the international conventions and covenants, and labels the competition and its results with the stigma of discrimination based on disability, as it contradicts with article 9 of the Basic Law, which is aforementioned.

On a related matter, MUSAWA has received a complaint from the Sharia Adv. Sobhi Albyouki, who meets all the requirements for holding the post of a Sharia Judge, including those requirements provided in article 11 of the announcement, saying that he was excluded from the list of winners upon the recommendation of a Sharia Judge, who works with the president of the Sharia High Judicial Council, Dr. Hasan Al-Juju, against the backdrop of his disagreement with the complainant. MUSAWA demands the commission of the competition, and the Sharia High Judicial Council to address this complaint and to take the needed legal actions in its regard while preserving the independence, professionalism, and impartiality of the commissions of judicial competitions.  

With All Due Respect,

Issued on 19/8/2019

MUSAWA