Legal Meeting on the Privatization of Judicial Services and the Delegation of the Chamber of Commerce to Settle the Financial Disputes between Traders
The two circulars related to those issues entail serious risks that require abolishing them
With an initiative from MUSAWA- The Palestinian Center for the Independence of the Judiciary and the Legal Profession, 34 legal and community figures, including 11 women, discussed the results and implications of the two circulars issued by the head of the High Judicial Council in Gaza, one of which provides for referring the executive suits filed with the executive department to the Chamber of Commerce, which was granted the power of settling the disputes between traders as subjects of executive proceedings, the circular also obligates the executive department to refer such cases to the Chamber of Commerce. The other circular provided for delegating a private company called “Mirsal Company” to deliver judicial services, particularly the delivery of judicial orders. The discussion took place during a workshop held at the hall of the Sharia Bar Association in Gaza on 25/4/2019, and it was attended by the Ministry of Justice’s representative, the head of the Sharia judiciary-inspecting department in Gaza, the judge of the Sharia High Judicial Court, a number of human rights and academic organizations’ representatives, civil society organizations and a number of lawyers and law teachers, who remarked that the most prominent risk of those two circulars is violating the rule of the regular judge that is provided in the constitution, the compulsive judicial execution of ruling and judicial decisions, and that it is granting special bodies judicial powers in contradiction with the law, violating the powers of the competent judge by the report on the notification methods according to the provisions and texts of the Civil and Commercial Law of Procedure. In addition, the participants pointed out that issuing the two circulars by an incompetent body exceeded the powers and authorities of the legislator and the competent judge, not to mention the additional fees such circulars impose on notifications, which cause a financial strain to the litigants and affects their right to access to justice without any legal grounds, and the violation of the process of law in choosing the body that shall be responsible for judicial services, given that choosing the competent company shall be based on a professional competition, by identifying the legislative basis and proceedings of the companies, and by setting binding proceedings in insurance of combating corruption and the legality of notifications, and to avoid its invalidity.
The audience of the meeting, which was directed by Adv. Islah Hasaneyyah, a member of MUSAWA’s Board of Directors, and it was launched by Adv. Rule Mousa, the Legal Monitoring Officer/Gaza, pointed out to the potential for activating the judicial settlement provided in the Civil and Commercial Law of Procedure, instead of waiving the judiciary’s powers in favor of a private company that is not granted the legal capacity by law. The audience also called for publishing the convention between Mirsal Company and the High Judicial Council to the public, attached with an identification of the legal capacity of its employees and the reasons for choosing this company in specific, asserting that the litigant shall not enjoy the right of choosing his/her judge, and that disputes before the executive judge and other courts can be settled without being referred to the Chamber of Commerce, as it could create a duplication and pluralism in the adjudicators, which negatively affects the principle of separation of powers and the principle of the independence of the judiciary, in addition to the risks of conceding the administrative circular a legislation tool, especially that the subjects of the two circulars are beyond the competence of the head of the High Judicial Council.
The participants expressed their surprise at the absence of any representatives of the High Judicial Council, Mirsal Company, or the Chamber of Commerce, to join the discussion, calling for organizing hearing sessions for the mentioned parties concerning the reasons and justifications of issuing the two circulars and the ways of confronting their negative implications.
It is expected that the participants will issue a position paper to be directed to the duty bearers and citizens, including the demands to cancel the circulars for their anticipated risks and negative implications.