MUSAWA Refutes the Recommendations of the Official Committee for Developing the Justice System
MUSAWA Refutes the Recommendations of the Official Committee for Developing the Justice System
MUSAWA has revised the final recommendations of the Official Committee for Developing the Justice System and was aware of the media campaign, which accompanied the work of the committee to promote and illustrate a positive image of these recommendations as a way to reform the justice system and treat the mistrust in the justice system, including the judiciary. MUSAWA emphasizes that the proposed diagnosis of the crises is true where there is consensus among all the parties, including the judiciary system itself, that the defect is a structural problem within the judiciary system itself. Such defect prevents the judiciary system from performing its role in achieving justice as well as from reforming itself on its own. The second reason for the crises is the absence of the legislative authority where there is no sign in the horizon that it will return back soon with the possibility of enabling people to elect their representatives to the Legislative Council and presidential elections. The third reason lies in the untrustworthy role of the executive authority and its blatant interference within the performance of the judiciary authority that embodied the subordination of the judiciary authority to the executive authority and neglected its independence. Therefore, to emphasize the credibility of the mentioned diagnosis of the crises, any serious reform process, requires forming a committee from outside the executive authority and the judiciary administration and the official justice system. Such committee could be identified through a community mechanism that takes conducting a national conference in which all the actors of legal and community work could be involved. Through this conference, a community committee that includes respectful and trusted figures that are known for their integrity and neutralism and enjoy the respect of the masses, will be selected by the participants of the conference. Participants in the proposed conference are supposed to identify the members of the proposed committee on personal merits background rather than partial or political or geographical background. A presidential decree should be issued to assign the selected committee emphasizing the political will to reform the judiciary system and the will to apply the recommendations of the committee. The evaluation process should be objective and target all the employees of the judiciary system, the public prosecution, and the constitutional court. The evaluation process should be top- down approach with no exceptions and based on professional standards in accordance with international standards. Also, the evaluation should be associated with the committee that is authorized to seek help from specialized qualified personnel who have experience in law, administration, and evaluation. The evaluation process should be accomplished within identified time frame that does not exceed nine months. Likewise, the committee should have the legitimacy to endorse any amendments within the laws and legislation that organize the work of the judiciary authority, the constitutional court, and the justice system in general.
Taking into consideration the previous principles and standards, we believe that the final recommendations of the Official Committee for Developing the Justice System, failed in proposing the solutions to overcome the crises. On the contrary, the committee kept the reasons of the crises as they are, without treating and more than that it opened the door to dedicated dominating the judiciary authority by the executive authority as:
- The committee excluded the constitutional court from its scope of work and recommendations, which legalizes forming such court, its law, and performance as well as granting it impunity, though this is one of the major fields in need for reforming.
- The recommendations excluded the Chief of the High Judiciary Council and the Attorney General from being evaluated. Such exclusion violates the principle that the head of the authority should bear responsibility for the deterioration of the institution and the reasons why people lost confidence in it.
- The recommendations violate the principles of evaluation that should be comprehensive and target all those working in the judiciary authority administration and the decision makers within it.
- For personal reasons, the recommendations illegally excluded the head of the High Judiciary Council though the retirement age is applicable to him. Such exclusion contradicts with the principle that justice should be comprehensive where the justification for such exclusion was that the head of the Judiciary Council would turn to be seventy years after one year assuming that such duration has no impact.
- The recommendations ignored adopting the age of sixty as age for retirement. The justifications drawn for that are in contradiction with the law where the committee states that applying the age of sixty as age for retirement (though this age is the most appropriate for occupying public positions and harmonizes with the principle of generalizing) would increase the number of magistrates who would be referred to retirement. Referring big number of judges to retirement, according to the justification of the committee, would affect issuing rules regarding the cases being discussed in the Court of Cassation. The recommendation ignored the fact that issuing the rules through the court is not the purpose in itself and it is not the tool to reinforce people’s confidence in the judiciary system. The desired result is the fair judging of the cases discussed in the courts. The recommendations ignored the legal situation that enables the possibility of judicial assigning and judicial promotion that is capable of filling any emerging gap. Moreover, the recommendations ignored the prolonged litigation before the Court of Cassation and the long duration of the delay of the hearing sessions according to the procedures law and the applied principles of trial process. Therefore, the recommendation to apply the age of 65 as age for retirement, favors the interests of the decision makers within the judicial system and transfers the objective of the reform into being a tool to get rid of the opponents. Similarly, the recommendation to form an evaluation committee, through a presidential order, means that such committee would remain under the domination of the executive authority firstly. Secondly, including the heads of the judiciary system and the executive authority, especially the head of the High Judiciary Council, Attorney General, and the minister of justice in the evaluation committee would affect negatively the performance of the committee. Including the previous mentioned members within the evaluation committee violates the principle that the evaluation committee should include members from outside both the justice system and the executive authority. The proposed structure of the evaluation committee would embody the domination of the judiciary authority by the executive authority as well as it excludes the head of the High Judiciary Council and the Attorney General from the evaluation process. Within such structure, the committee would not be capable of addressing the structural defect within the judiciary system and the public prosecution. In addition, it transfers those who should be evaluated, mainly the head of the High Judiciary Council and the Attorney General, into evaluators and transfers the judges and the members of the public prosecution into employees. Moreover, it enhances the discrimination policy that would push the evaluation process into being a massacre that targets the judges and the members of the public prosecution whose opinions and discretions oppose the policies and interests of their superiors.
- The recommendations tackled the current status of the judiciary authority and granted it legitimacy and power before commencing the evaluation process and applying its recommendations. Such fact is well seen in the vertical grouping of the recommendations and precaution of the evaluation findings and its decisions regarding the needed amendments where applying amendments should be within the scope of the evaluation committee.
- The recommendations were limited to propose amendments within the judiciary authority, which violates the tasks associated with the evaluation committee. The committee should be dedicated to propose comprehensive amendments for the justice system in general but not limit its mission to the regular judiciary and public prosecution.
- The recommendations ignored the current structural defect within the justice system including judiciary, public prosecution, and constitutional court. The proposed amendments within the recommendations do not harmonize with the current status of the judiciary system. Two- degrees regular judiciary represents an appropriate proposition within the current structure of the High Court that is supposed to discuss the appeals against the rules of the systematic courts (first instant courts) despite the fact that the committee is familiar with the tendencies and judiciary policies of the High Court, which represent one of the reasons behind the mistrust in the judiciary system.
- The recommendation related to the judiciary monitoring (as proposed) denies the right to defend and oversteps the authority of the Judiciary Disciplinary Board. The recommendation unifies the authority of assigning judges and associates it with the President and only relies on the nomination by the High Judiciary Council as well as it denies the approval of assigning by the Palestinian Legislative Council. Such tendency would lead to lose the independence of the judiciary monitoring department and hence, the performance of this department would be controlled by the interests of the references and that would lead to damage the independence of the judiciary system on one hand, and to get rid of the judges whose opinions and discretion do not accord with the tendencies and policies of both the High Judiciary Council and the Executive Authority on the other.
- Adopting the recommendations without subjecting them to community discussion violates the commitments of the committee itself to present the findings to the Civil Society Organizations and specialized legal organizations to be discussed before being submitted to his Excellency, the president.
- The false claim that the recommendations were based on the opinions and recommendations of the civil society and it should clarify that they are based on the opinions of some civil society organizations and official parties involved in the mentioned committee.
- The delay in officially declaring the findings of the committee till now though the work was accomplished on September 5th, 2018 and discovering that some members tried to amend the recommendations in a manner that accords with their personal interests. Moreover, it was not mentioned that the recommendations are to be referred from his Excellency, the president to the government as the government is the authorized power to propose drafted Decree- Law, to amend the law of the judiciary authority. The applied procedures state clearly that the government must propose to the president drafted Decree- Law taking into consideration that the government might rephrase the recommendations in accordance with its vision.
- The recommendations included a positive point related to the salaries of the judges and their retirement salaries as well as adopting the system of degrees. Additionally, it included granting the systematic judiciary the power to reimburse alongside with canceling and increasing the number of appealing courts. However, this does not achieve the desired reform.
- The recommendations excluded the head of the judiciary council and the Attorney General from the process of judiciary monitoring without proposing any legal mechanism to evaluate their performance, nor did the recommendations propose mechanisms for accountability and the authorized powers to examine the findings of the accountability process.
- The recommendations excluded the decisions issued by judiciary monitoring department from the mandate of the judiciary and limited adopting these decisions by the president, which embodies dominating the judiciary authority by the executive authority and consequently, harms the independence of the judiciary authority.
- The recommendations related to widen the membership of the High Judiciary Council were limited as they gave the right to decide in this regard to the main members of the Council without giving the public figures the possibility to affect such decisions. One person does not have the adequate power to affect. Also, the recommendations dedicated the power to assign this person to the president through the nomination of the High Judiciary Council.
In the light of the previous furnished gaps and risks, we call upon the committee, in case it has the time and the will to revise the recommendations in a manner that addresses the gaps and risks and responds to the national need of serious reform of the judiciary system. We call upon his Excellency, the president to reject the recommendations as proposed and take into consideration our remarks and critique.
The Palestinian Center for the Independence of the Judiciary and the Legal Profession- MUSAWA
September, 8th 2018