MUSAWA Demands the Immediate Abolishment of the Decree-Laws Amending the Judicial Legislation and Without Any Delay

2021-01-12

West Bank and Gaza

West Bank / Gaza / Announcement / Core Program / position paper

In order to preserve civil peace and the Basic Law, let decree-laws amending judicial legislation be abolished immediately and without delay

 

Indeed, it is a dark day in the history of the Palestinian people; the day of the assassination of the principles of the constitutional and civil state; the day of violating the principle of separation of powers and the rule of law; the day of the abolition of the content, core and foundations of the independence of one authority from the three state authorities: by tampering with the independence of the judiciary and undermining the independence of its judges, by issuing a decree-law under darkness, in closed rooms and by the sole will of the executive authority, in a manner that lacks constitutional legitimacy, lacks popular legitimacy, and in manner of no legal legitimacy, a decree by law that transforms the judicial authority from the most important authority of the state authorities to a governmental department or service facility, issued days before the specified time of the issuance of a decree setting the date for general elections, to draw up an inclusive system in which the executive authority dominates the judiciary, and judges transformed into mere workers who lack the minimum independence in performing the duties of the judicial function with integrity and impartiality.

A decree-law precedes the will of the electorate, pre-empts the exercise of the elected legislative authority of its powers and authorities, strikes at the core of one of the most important components of the constitutional system, and overrides the consensus of the Palestinians' law practitioners in their community, civil and legal institutions, who declared their adherence to the Basic Law, and their rejection of any infringement or amendment of the law of The Judicial Authority, except by the Legislative Council elected as the genuine authority possessing the power of legislation and oversight.

We, in MUSAWA- The Palestinian Center for the Independence of the Judiciary and the Legal Profession, express our shock and rejection of decisions by laws in general, and decisions by laws affecting the package of judicial legislation, as legislation complementary to the constitution, "the Basic Law" and an integral part of its principles and provisions, which the executive authority is forbidden to encroach on or tamper with it. We see in it a coup against the foundations of the legal and constitutional system.

Although we believe that there is no point or value in researching the details of decisions that do not respect the Basic Law, constitutional values and principles, but for the purposes of exposing the flaws and risks inherent in the decree-law No. 40 of 2020 regarding amending the Judicial Authority Law and setting the facts before society in all its spectrums, describing the judiciary as a people's right which is not an advantage for its operator, nor a monopoly over its management, nor a private property of the executive authority. We refer to the most prominent of what it contains: -

The dominance of the head of the executive authority over the judiciary through:

  • He unilaterally appoints the president of the Supreme Court and a deputy and accepts their resignations, as he chooses whomever he wants to occupy these two positions from an unlimited number of judges who are attributed to him by the Judicial Council. This is in accordance with Article 8 of the Law by Decree, this order empties the placement from its content and makes the decision of the head of the executive authority the creator and sole owner of the appointment and dismissal decision (acceptance of resignation), in addition to obligating the Judicial Council to submit an annual report on the activities of the judicial authority to the head of the executive authority, in accordance with paragraph 4 of Article 18 Decree-law.

 

Expanding the reasons for terminating and dismissing judges for broad public reasons, and without providing guarantees for defense, which makes them subject to the will of the judicial administration of the head of the executive authority through:

  • When appointed, judges are subjected to a three-year probation period, and the Judicial Council is granted the authority to terminate their services during it for reasons related to the council’s vision alone for what has been termed as incompetence and personal or moral incompetence, according to what is stated in Paragraph 3/A of Article (5) of the Decree-Law, and to implement this retroactively so that it includes judges who were appointed before the issuance of the decree-law, and who had not occupied the judicial position for three years, and through the creation of a so-called trainee judge, who remains under this name for a year, renewable for another year (two years), whose degree and rights are determined under a system in accordance with paragraph (4) of Article (5), during which it is subject to procedures for terminating the work of judges, and through a temporary suspension of the work of a judge for a period of five years before transferring them to retirement (placement), followed by a provision of their retirement in accordance with paragraph 3 of Article 11 of the Decree-Law and by delegating the judge to carry out legal work by a decision of the Judicial Council or at the request of the Minister of Justice, without the need for the approval of the judge in accordance with the provisions of Article 9 of the decree-law, and through retirement of the judge if he/she completes the minimum for the period of retirement stipulated in the General Retirement Law, or to the placement if the judge has served 10 years, or to terminate the service if the judge has not completed the period of service necessary to transfer him/her to placement or retirement, without the need for procedures - or to guarantee a right of defense, depending on the judge’s job file, the so-called attachments are in accordance with paragraph 3 of Article 11 of the Law by Decree, and through the disciplinary council formed in accordance with Article 23 of the Law by Decree.

 

The domination of the Head of the Judicial Council and granting him broad powers and individual privileges through:

  • Granting him the authority to delegate any judge to any statutory or special court, or to carry out inspection tasks for a period of three months, and to recommend its extension to the Council for several years, to delegate any judge to any statutory court of the highest rank for a year, and to recommend its extension to the Council for another year, according to the aforementioned In Article 10 of the Law by Decree, the granting of the placement authority based on the recommendation of a committee formed by a decision of the Council to transfer any judge to retirement, transfer to provisional retirement or terminate his services; grant him the power to appoint a judge to terminate the service of any judge if the estimate of his competence is less than good for two consecutive years, according to what was mentioned in the second and third paragraphs of Article 11 of the Law by Decree, and by not subjecting him to the mandatory retirement age to enable him to occupy his position as long as he has reached his age, while keeping the statutory retirement age for other judges seventy years, in accordance with paragraph 4 of Article 14 of the Law by Decree and through his distinction in the pension salary that reaches 70% of the basic salary with bonuses, while other judges are entitled to a percentage of not less than 50% of their basic salaries with bonuses in accordance with what is stated in Paragraph 3 of Article 14 of the Law by Decree, and through granting him the power to propose the amendment of the dates of the annual judicial vacation, and granting him the power to grant judges in special cases their annual leave outside the period of the judicial vacation during which judges are obligated to take their annual leave, in accordance with the provisions of Paragraph A of Article 15 of the Law by Decree, and by granting him the right to administrative supervision over all judges, His right to direct a warning to any judge in accordance with Article 22 of the Law by Decree, and through the Secretary-General's recommendation to the Council and the direct court administration subordination to him like all other departments of the judicial authority affiliated to him and responsible for him in accordance with Article 29 of the Law by Decree, and through Granting him the authority of the competent minister in all that is not stipulated in the decree by law and is subject to the provisions of the Civil Service Law or any other law.

 

Canceling the legal formation of the Disciplinary Board: -

Despite the diversity of reasons and titles for cases of dismissal of judges mentioned in the decree by law, and despite the fact that the Judicial Authority Law, prior to the issuance of this decision by the law amending it, required the formation of a Judges Disciplinary Board by the force of law and with the qualities and job titles. However, this decision of a law granted the Council the power to form a disciplinary council without being restricted to job titles, as well as granting the council the authority to repeatedly form the disciplinary board to be according to its vested interest and the measure of its desires, in a way that represents a muzzling of judges' mouths and a threat to their security and keeping them under the influence of termination of services or job isolation in accordance with Article 23 of the Law by Decree.

 

Absence of criteria for occupying the judicial position: -

  • According to what is stated in the second paragraph of Article 5 of the Law by Decree, the Council has the power to lay down a regulation that defines how vacant judicial positions should be vacant according to what it deems appropriate regarding the applicant’s competence to occupy them and his good character, away from stating any professional or objective criteria away from the procedures and conditions for forming the Judicial Contest Committee. The decision by the law also released the Council’s authority to appoint in the judicial position from workers in the legal field in state institutions (departments of the executive authority), and also removed law professors from the categories from which judges may be appointed. It also granted the Council the power to assess the extent of expertise and competence needed for the purposes of promoting judges, in accordance with paragraph A of Article 6 of the Law by Decree.

 

Confidentiality of Judicial Council decisions:

According to what is stated in the Fifth paragraph of Article 18 of the Law by Decree, council meetings are confidential and loose, which may also make its decisions confidential and this contradicts the principle of transparency, the right to access information, and the immunization of any administrative decision from judicial oversight.

 

The inspection department may include justices of the peace:

  • According to the first paragraph of Article 19, justices of the peace may occupy the membership of the Judicial Inspection Department, which inspects the work of all judges, including those of the Supreme Court.

Exclusion of requests to stop the implementation of the decisions contested by the judges: -

  • According to Paragraph (A) of Article (21) of the Law by Decree, requests to suspend the implementation of administrative decisions contested by judges were exempted.

 

Expanding the error for disciplinary accountability of the judge: -

  • According to Paragraph 1/A of Article 26, any act that violates decency constitutes a mistake that requires the judge to be disciplined.

 

The dominance of the executive authority over the formation of the Judicial Council: -

  • According to Article 16 of the Law by Decree, the Supreme Judicial Council consists of eleven members, of whom more than one-third are chosen by the executive authority, the ones chosen are the President of the Supreme Court, his deputy, the Attorney General, and the Undersecretary of the Ministry of Justice. According to the second paragraph of Article 18 of the decree by law, the council’s meeting can take place in the presence of eight of its members, and in this case, the executive authority will have owned half of the council, noting that the head of the court of first instance who was added to the formation is chosen by the council and not by Its judges which negatively affects its independence and effectiveness within the council, makes its membership in it formal, and makes it vulnerable to controlling its decisions and voting.

 

Cancellation of the Judges Club Association and replacing it with a socio-cultural club:-

  • According to what was stated in the first paragraph of Article 30 of the decree by law, a social and cultural club shall be established for both working and retired judges, which means an implicit cancellation of the Judges Club Association, its mission and its role in protecting the judges' rights, mission and independence, and transforming the club into a social meeting place for joys and sorrows.

 

This is the tip of the iceberg, as the sins included in the decree-lawmay require tens of pages to detail, which foretells the main purpose of it, which is to transform the judiciary in the best cases into a department of the executive authority, if not transferring it to a service facility, there is no power or authority for its operators where they are not nothing more than employees who are governed by their stay in their jobs, many determinants that waft loyalty to the judicial administration and its president, who is appointed by the head of the executive authority, which eliminates the judiciary as an authority, invalidates its independence as an institution and the independence of its judges as individuals, and puts the rights of litigants at risk. This requires immediate abolishing and stopping of the tampering and usurpation of the powers and authorities of the Legislative Council that expresses the will of the people and which is chosen by them. The essence of this decree-law is similar to the essence of the decree-law No. 41 of 2020 regarding administrative courts, which must also be repealed. The decree-law No. 39 of 2020 regarding the formation of regular courts should be abolished because it was issued by an entity not competent to issue it in violation of the Basic Law and violated the principle of separation of powers and an aggressor on the powers of the legislative authority and exceeded the requirements and conditions for the implementation of Article 43 of the Basic Law issued a few months before the elections. The public needed to renew the legitimacy of the regime and the legitimacy of its powers, as the pandemics and crises that our people suffer from nearly destabilizes its stability, security, and the rights of its citizens.                                                               

    

 Issued on: 12/1/2021                                                                                                           MUSAWA

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