The President and Members of the High Judicial Council / Gaza
Subject: Preventing MUSAWA's Team from Monitoring Court Sessions
MUSAWA- the Palestinian Center for the Independence of the Judiciary and the Legal Profession extends its warmest greetings to you, as it expresses its shock at preventing MUSAWA’s Legal Awareness & Training Coordinator in Gaza, Adv. Momen Hattab from performing his duties and delivering the MUSAWA’s mission of monitoring the courts’ performance to guarantee the implementation of the public hearings principle, and the efficiency of the case management that should guarantee the litigators’ right to equality before the law and the judiciary, their right to access to justice and to enjoy the guarantees of the fair trials, their right of defense, and the judges and advocates adherence to the professional code of conduct, in addition to their right of enjoying smooth proceedings and respecting the jury. By the orders of the judge ( ), Gaza’s magistrate judge, Adv. Hattab was prevented from entering the court hall, and the justification was “It is none of the CSOs business to monitor the work of judges and thus they don’t have the right to enter the court halls”, which precluded Hattab’s monitoring mission on 4/4/2019.
MUSAWA believes that the decision to prevent MUSAWA from exercising its powers and duties, pursuant to the decision to register it as a civil, independent, and professional body that monitors the performance of the justice system and the legislative process, entails a serious violation of its constitutional rights and a deviation from the nature of the judicial post, which is not a privilege granted to its occupier.
As MUSAWA asserts that it intends no personal offend against the judge responsible for the prevention decision, and as it reiterates that the court Is the only party that enjoys the power of resolving the conflict filed with the court, away from any intervention or influence, including the personal motives of the judge, as by law and logic, the court is the mandate holder in resolving the conflicts referred to it, proceeding from the provisions of the Basic Law and the related laws. However, preventing monitoring CSOs, the press, and citizens from attending the court sessions does not reconcile with the principles of the judicial post, and its characteristics of neutrality, integrity, and transparency in managing cases publicly, enabling the public to view and examine the litigation procedures and reassure them of its proper functioning, its adherence to the fair trial guarantees and the principle of equality before the law and the judiciary, and of its protection of the right of defense and the citizens’ rights and freedoms away from discrimination and by the constitutional principles, which shall be the judiciary’s top priority and mission.
In this context, we recall article 105 of the Basic Law, which literally provides for: “Court hearings shall be public unless a court decides to make theming camera due to considerations related to public order or public morals. In all cases, the sentence shall be pronounced in a public hearing”, and article 16 of the Judicial Authority Act which reiterated the same right and the text.
MUSAWA believes that such a right shall not be violated, restricted, or arranged, except for the cases mentioned in the Basic Law, which are related to public order or public morals, or in case of having objective reasons that would impede it, like having a full room. However, given the fact that the mentioned hearing, held at Gaza’s Magistrate’s Court on 4/4/2018m, lacked the mentioned exceptions, preventing MUSAWA from attending the hearing is unlawful.
The center asserts that the notion of public hearings is not only limited to open attendance, but also includes enabling the citizens to view and identify their proceedings, which is considered a control tool over the application of law by the justice system, and associated with reasoning the judicial rulings as an obligatory way to control the integrity, impartiality and professionalism of the judiciary. In addition, citizens have the right to comment on judicial rulings by bearing their controls in mind. Based on the foregoing, democratic countries allocate a special space for the media in the court halls, not to mention that the journalist has the right to decide -by his or her own- on which cases to cover, other than that he/she would be considered a dull follower.
MUSAWA indicates that the court’s decision to prevent, prohibit, or restrict the media coverage and the attendance of CSOs is not considered a judicial decision, and does not relate to the characteristics of administrating the proceedings, but rather, it is a human right, therefore it was included under the section of fundamental rights and freedoms as provided in the preamble and Part Two of the Basic Law, and protected by the binding international bill of rights joined by the State of Palestine. Thus, none of the claims or justifications cited by the magistrate’s judge can withstand the truth, as it contradicts with the constitutional provision and the nature of the prevention decision, which is described as an administrative decision that has nothing to do with the judge's judicial role that is limited to the power to enforce the law impartially and fairly, away from dominance. In addition, the claim that the jury’s decision was to organize the right of public prosecutions, not to exclude the right completely, contradicts with truth, logic, law, and reality, given that constitutional rights shall not be organized in a way that restricts, impedes or limits them. Furthermore, the principle of public prosecutions is not only limited to the physical presence of citizens, and it cannot be respected when preventing competent citizens like monitoring officers from attending the public hearings.
This clear infringement of CSOs rights and the Basic law, which contributes to deepening the citizens' lack of trust in the justice system, requires conducting an independent and neutral investigation into the mentioned decision, taking the needed legal action in that regard ensuring MUSAWA’s right to attend public hearings as an integral part of MUAWA’s mission and its positive contribution to promote the rule of law principle and to enable the citizens to access to justice and enjoy its fair trial guarantees without discrimination.