MUSAWA Demands Mr. President Not to Adapt the Recommendations of the Presidential Committee for Developing the Justice System and the Draft Decree Law Amending the Judicial Authority Law

2018-12-03

West Bank and Gaza Strip

West Bank / Gaza / Core Program 2016-2019 / position paper

MUSAWA Demands Mr. President Not to Adapt the Recommendations of the Presidential Committee for Developing the Justice System and the Draft Decree Law Amending the Judicial Authority Law

 

After viewing the draft decree-law amending the judicial authority law, which is a carbon copy of the original one that some official bodies attempted to renounce, and after reviewing the results report of the work and recommendations of the National, aka presidential, Committee for Developing and Reforming The Justice System published by the Independent Commission for Human Rights- ICHR two days after issuing the before mentioned draft decree-law, and depending on what was mentioned and agreed on by civil society institutions and many legal and social personnel that provides for the fact that the justice crises in Palestine is mainly a systemic-performance crisis, that the crises of legal provisions is only a subsidiary one, and that there are key lessons learned from official expertise in the justice crises, such as the one related to the executive authority, which is the creator of the crisis as it was unable and untrusted with reforming and rebuilding the justice system, and the one related to the consecutive judicial administrations, which lost the public’s trust as barely 36% of the community viewed them as reliable bodies, and failed to reform itself by itself, also by taking into consideration the community consensus that the right way to reform is by adopting the performance’ assessment mechanism as an effective tool for addressing the crises and overcome its risks, MUSAWA- the Palestinian Center for the Independence of the Judiciary and the Legal Profession believes that this draft decree-law is a result of the presidential committee’s previous report announced by one of the committee members on the media, which MUSAWA refuted at the time in addition to refuting the ideology behind it. MUSAWA also asserts that further disputes among the official representatives of the justice system are mainly caused by their disagreement over power.

The recommendations provided in the report and the provisions provided in the draft decree-law are all characterized by:

 

  1. The immunization of the judiciary and the public prosecution’s current status, legalization of its structure, recognition of its performance’s integrity, and the limitation of crises to a flaw in the judicial authority’s law and the legislation governing the justice system. 
  2. The report and draft decree-law both ignored even discussing the status of the constitutional court, although their developers were aware of the seriousness of this court in terms of formation, legislation, and performance.
  3. The decree-law deepened the division and dealt with its outcomes as matters of fact as it limited the concept of the state to the northern governorates, missed a historic opportunity to unite the justice system in the West Bank and Gaza Strip, what would have played a role in ending the division, but unfortunately, all of its provisions did not take into consideration the impact of the judicial division on Palestine as a state and national project. 
  4. Both the report and the draft decree-law endorsed the totalitarian regime and the dependency of the judicial authority on the executive authority.    
  5. Both the report and the draft decree-law undermined the state of law and the powers separation’ principles and considered the judiciary an executive department. 
  6. Both the report and the draft decree-law missed an opportunity to have a judicial authority that can stop the judicial bleeding, as both of them do not provide for forming a committee to assess the performance of everyone working in the judicial profession and the public prosecution, and devoted discrimination in public employment as it excluded the head of the High Judicial Council and the attorney general from the inspection/evaluation process. 
  7. Both the report and the draft decree-law match in several provisions and are practically verbatim, in addition, the draft decree-law immunized the presidential decision to immunize the judge before the law, in a clear and explicit violation of the provision of article 30 of the Basic Law. 
  8. The draft decree-law took into consideration the recommendation to reduce the retirement age to 65, then the committee justified the concern that reducing the retirement age to 60 may create a judicial gap in the number of judges, what paved the way for the opposition alienation’s policy, as the draft decree-law authorized keeping those who turn 60 in their posts for 5 years if needed, without pointing out any subjective standards as it gave the power to take such decision to the High Judicial Council and the President. 
  9. The report and later on the draft decree-law violated the concept of the legal basis and its conditions, which has to be general and abstract, as they include exceptions that exclusively grant the head of the High Judicial Council and the attorney general some concessions, legalize the post of the head of the High Judicial Council as if he was appointed by the decree and according to those recommendations.  
  10. The report and later on draft the decree-law failed in addressing the structure of the High Judicial Council, as they both were satisfied with increasing its number of members and thus appointed the head of the district court and a legal personnel appointed by a presidential decree that depends on a recommendation from the High Judicial Council, what precludes its impact and suspects its independence.
  11.  The draft decree-law exceeded the report by granting the president the power to appoint and fire. However, the contexts of both the report and the draft decree-law embody the dependency of the judiciary on the President, whose power to appoint was endorsed by the report and the draft decree-law.   
  12. The draft decree-law responded to the report regarding granting the judges salary and risk raises, but it limited the power of issuing the statute governing the judges salaries and raises to the government what opens a wide door for it to interfere in the work and performance of the judicial authority, in addition to promoting the discrimination approach among the judges and the head of the High Judicial Council, who was treated like a minister in terms of his retirement salary and keeping his post until he turns 70.
  13. The draft decre- law introduced according to the chief inspector’s post but limited his/her powers, as his/her decisions will be nothing more than recommendations referred to the High Judicial Council, excluding the head of the High Judicial Council and the attorney general from the inspection/evaluation process.
  14. The draft decree-law gave the High Judicial Council broad authorities that enable it to interfere in the work and independence of judges, as it has the power to form the disciplinary council periodically, in dispute with the principles governing the independence of the judicial authority that mandates this power to a legal decision rather than an administrative one. 

 

In the light of the previous furnished gaps and risks, MUSAWA- the Palestinian Center for the Independence of the Judiciary and the Legal Profession calls upon the President to reject the recommendations as proposed and to call for a community dialogue to choose an alternative approach to reform and unite of the judiciary system.

 

Issued on 3/12/2018

 

MUSAWA

 

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