2017-02-20

Gaza

Gaza

Head of Higher Shari’a Court Council/ Head of Supreme Shari’a Court,
His Eminence Sheikh Dr. Hassan Al-Joujou,

Subject: Violation of Shari’a Court Procedures

MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession received a complaint in writing, lodged by a citizen: Ahmad Saeed Ahmad Dawabah, in relation to Shari’a case no. 83/2016, pending before His Eminence Judge: ____ in ____ ‘s   Court of First Instance.

In his complaint, the complainant claimed that on 23/11/2016, during the hearing of the aforementioned case, in which he was an adversary and he had no defense, the judge asked him to shut-up in an arrogant manner saying, “if you do not shut your mouth, I will frame you with a charge that you will not know how to get out of”. Not only that, the judge also ordered that the complainant be imprisoned for seven days in Al-Shujaiya’s police station, hence preventing him from attending the next court hearings.

The complainant added that he was exercising his natural right to request that his case be transferred to another court; however, his request was denied. The complainant added that the judge prevented him from retaining arbitrators and pronounced the judgment of divorce in absentia, in the hearing which he was not able to attend because the judge kicked him out. Furthermore, a decision was issued not to allow the complainant to copy the case file after the judgment was pronounced for the purpose of appealing the judgment unless the complainant appears and signs the hearing’s official reports, despite the fact that the complainant objected to signing the reports due to differences in what they say happened during the hearing and what actually happened, and they differ from the previous official reports, as can be observed in the attachment. 

His Eminence Sheikh Dr. Hassan Al-Joujou,

Pursuant to Article (121) of the Shari’a Court Procedures Law No. 12 of 1956, judges may be challenged. The reasons and procedures for challenging a judge are defined in Article (130), which states that the court’s President assigns a judge to hear what the challenger and the challenged judge have to say and then reports to the President, who in turn shall set a date for a hearing to decide on the matter. Also, Article (137) states that a lawsuit shall be put on hold until the challenge proceedings are finished.

According to Article (34) of the same law, an official report shall be written for each hearing, and signed by the judge and the writer of the report. This ensures that the report is handled with a sense of responsibility and seriousness, as it is an official document as prescribed in Article (45) of the aforementioned law, which defines an official paper as any document issued by a public employee in accordance with his sphere of competence. 

It is noted in this complaint that the hearing was held on 20/09/2016. The complainant claims that on 13/02/2017, as evident in the attachment, he signed the report under duress so that he would be able to copy the case file and lodge an appeal. 

Paragraph (a) of Article (5) of the Judicial Inspection Bylaws, issued by the Higher Shari’a Court Council, states that the work of enforcement judges and judges in courts of appeal and courts of first instance. Paragraph (b) states that enforcement judges and judges working in courts of appeal and courts of first instance shall be assessed in terms of their commitment to law-enforcement, fulfillment of litigation-and-evidence related proceedings, and the truthfulness of the results reached. Paragraph (c) states that complaints which are lodged against judges should be checked and investigated, if necessary by the law. Moreover, paragraph (e) of Article (6) of the same law addresses the personal behavior of the judge and the way to deal with others.

Accordingly, MUSAWA asks your Eminence to activate your oversight role on Shari’a Courts, while ensuring that the judges are impartial. The Department of Judicial Inspection should activate its role in order to guarantee a fair remedy for all citizens. Furthermore, we demand that your Excellency cancel any measure taken by the complained-of judge, examine the contents of the complaint, guarantee the complainant a fair trial by making sure that his statement is duly recorded in the court’s official report and that he has access to a defense attorney, reconsider the challenge request in accordance with due process. We ask that the case is discontinued until this complaint is looked into and an appropriate legal action is taken and announced. MUSAWA hopes that this memo would be handled seriously and duly responded-to.

With all due respect,

Issued on 20/02/2017          

MUSAWA

 
Copy to:
-    Head of Shari’a Judicial Inspection Department.
-    Assistant Secretary General of the Council of Ministers.
-    Legislative Council.

Attachments:
-    Copy of the complaint.
-    Copy of the challenge request.
-    Copy of the official reports.
-    Copy of the judge’s decision to prevent the copying.