MUSAWA Oversight Report on the Written Exam of the Judicial Recruitment Competition to Appoint Magistrate Judges
His Excellency the Head of the Judicial Competition, Judge. Mohammad Ihshayyesh,
Subject: MUSAWA’s Oversight Report on the Written Exam of the Judicial Recruitment Competition to Appoint Magistrate Judges
First, MUSAWA affirms its stated position, which advocates for abolishing the decree-laws No 16 and 17 of 2019, given that they do not constitute a proper tool to the reform of the justice system, including the Regular Judiciary. In preservation of this position, and by bearing in mind that the two decree-laws are still in force, and out of our duty to monitor the performance of the official Justice System, including judicial appointments, MUSAWA has responded to your memo -sent on 4/9/2019 No. 16/3281, and appended with your Excellency’s signature- by which you invited our watchdog organization to take part in monitoring the written exam of the Judicial Recruitment Competition to Appoint Magistrate Judges, as we assigned a team to monitor the mentioned exam held on 8/9/2019 at Omar Al-Aqqad Building in Birzeit University. MUSAWA’s team, consisting of three members, including Adv. Banan Tantour and Adv. Rawan Radi, members of Lawyers For the Rule Of Law Group (Friends of MUSAWA), was headed by the Legal Monitoring Officer at MUSAWA, Adv. Angham Mansur, who has interviewed your Excellency.
Depending on the conclusions of our monitoring mission and the interview with your Excellency, MUSAWA would like to state its observations as follows:
The Answers Provided by Your Excellency during the Interview and MUSAWA’s preservations in their regard:
- The competition's committee did not allow applicants, whose applications were declined, to file appeals.
- Your reiteration that the personal interview shall not come after the oral exam, but shall rather be a part of it.
- As pledged by the Council, the Placement Decisions will depend on the report of the Judicial Competition's Committee, rather than its recommendations submitted to the council.
- Your assertion that neither you nor the High Judicial Council will refer the winner names to the security bodies for a security check procedure, as this is one of the President Office’s jurisdictions.
- Your confirmation that lawyers and legal employees working in the judicial sector are authorized to take the written exam, excluding the prosecution members, who will only be subjected to oral exams, as their prosecution’s posts eliminate the requirement of the written exam.
- Your belief that receiving the judicial employees' applications does not contradict with article 19 of the Judicial Authority Act, which identifies the groups from which Magistrate Judges can be chosen, as they will receive special training including fellowships of judges.
- The fact that the prosecutors' mentality of defense deviates from the judges' mentality of condemnation does not imply a reason for excluding prosecutors from judicial posts, given that lawyers have the mentality of defense as well, and that the chosen prosecutors will receive special training including fellowships of judges.
- Your confirmation that the financial considerations are not the main reasons for allowing prosecution members to apply for judicial posts.
- Your assertion that in case of abolishing decree-laws No. 16 and 17, the following council will be responsible for dealing with the results of this competition, and your statement that the Constitutional Court has abolished decree-law No. 16, while leaving decree-law No. 17 in force, indicated that MUSAWA’s question in this regard is hypothetical and that the committee works by the current laws.
- With our deep respect, MUSAWA believes that your answers contradict with the statements of Adv. Abdul Kareem Hannoun, the member of the Transitional High Judicial Council, who asserted that the prosecutors shall be subjected to all levels of the competition, contradicts with article 19 of the Judicial Authority Act, and pre-empts the unannounced decision of the Constitutional Court concerning decree-laws No. 16 and 17 of 2019, implying that it would have been wiser to wait for the Constitutional Court’s decision before initiating the judicial competition proceedings, especially that your provisions on the essence of that decision do not have any legal grounds, given that the decisions is not yet issued or announced, and that your vision contradicts with the competition announcement, in which it was directly pointed out that the personal interview is the third stage of the competition, not a part of the oral exam. MUSAWA believes that declined applicant should have been granted the chance to plead and that the competent bodies should have considered and adjudicated those pleads objecting reasoned decisions, following the principles of equality and transparency. Finally, MUSAWA positively perceives the adoption of the reports submitted by your committee as a ground for judicial placements, based on the pledges you received.
MUSAWA’s Observations on the Written Exam:
- The number of examination applicants was 150, out of 185 accepted applicants, given that the total number of the submitted applications was 226. MUAWA’s team was not provided with any information whether any pleads were filed by one of the declined applicants or not, and whether those pleads were considered or adjudicated or not. Besides, MUSAWA’s team was not provided with any information concerning the reasons for the absenteeism of 35 applicants, nor the number of judges to be appointed.
- The exam period, as announced, is three hours, and it was supposed to start at 10 am, and to last till 1:00 pm. However, MUSAWA’s team noticed that 10 applicants were enabled to enter the exam rooms 32 minutes after the beginning of the exam.
- The exam was observed by eight members of the High Judicial Council, but their mission was not organized, as some of them were performing administrative tasks, and some of them were performing logistical tasks, whereas six of them were constantly observing the exam side to side with representatives of two CSOs, the Palestinian Bar Association, the Independent Commission for Human Rights and MUSAWA, whose members did not leave the exam halls till the end of the exam.
- The exam halls were inadequate, as the space between the examinees was very limited, which paves the way for cheating and exchanging papers.
- MUSAWA noticed that the internal observation committee did not have any woman, while some organizations confined themselves to one observing member.
- The exam papers were sealed by stapling the questions’ sheets on the examinees’ names, which makes it easy to check their names. In addition, the head and members of the exam committee did not sign on the answers sheets after sealing them, and when MUSAWA’s observing member inquired about the importance of signing the papers, the committee answered that the will be signed later on, without identifying when or where it would happen, although it is supposed to get the papers sealed firmly to leave no chance for checking the examinees’ names, and although the committee is supposed to sign the papers inside the exam halls once they are submitted by the examinees.
- MUSAWA’s Observing Team has recorded several cheating attempts that were dealt with by changing the cheaters’ seats, which caused chaos.
- MUSAWA’s Observing Team noticed that a Bar Association’s member accompanied an examinee to the bathroom, whereas in such cases, examinees shall be accompanied by one member of the Official Exam Committee.
Based on the Aforementioned, MUSAWA Recommends:
- To choose adequate exam halls and to distribute the examinees’ seats according to the exams’ normative standards.
- Women shall participate in all committees of judicial recruitment competitions.
- To respect the time specified for the beginning and ending the exam.
- To respect the controls of sealing the exam papers and signing them as a requirement for ensuring the judicial competition’s integrity and transparency.
- To take serious actions concerning the cheating attempts, since judicial posts do not tolerate such behaviors.
- To respect the committee’s decisions as an establishing placing decision, and to cancel the third stage of the competition “The personal interview”, as its goal can be achieved through the oral exam, which shall be exclusively held by the Committee of the Judicial Competition.
- To reaffirm the non-realization of security check procedures, and to make sure that security bodies do not interfere in the competition’s procedures or results, given that the competitions’ conditions, as provided in article 16 of the Judicial Authority Act, are sufficient. Noting that it is important to consider article 19 of the Judicial Authority Act identifying the groups, from which Magistrate Judges can be chosen.
- To subject the prosecutors to all procedures of the judicial competition, and not to exclude them from the written exam according to the principles of equality, the privacy of judicial post, and article 19 of the Judicial Authority Act, which provides for the permissibility of appointing former prosecutors, not current ones.
- Not suspending the competition procedures until after the issuance of the Constitutional Court’s decision violates the applicants’ rights, in case of abolishing decree-laws No. 16 and 17 of 2019, or amending them in contradiction with the Competition's Observing Committee and its procedures.
- To enable the declined applicants to appeal and to adjudicate their appeals by reasoned decisions.
- To announce the written exam's results and to enable the CBOs and the Palestinian Bar Association to take part in observing the oral exam.
With All Due Respect,
Issued on 10/9/2019
The Head of MUSAWA’s Observing Team
Adv. Angham Mansour