MUSAWA’s Vision on the Reform of the Justice System
“The Judiciary, Constitutional Court, and Public Prosecution”
MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession observed on a daily basis, with great interest, the official discussion on the reform of the justice system and the formation of a committee consisting of the heads of the official justice system: the Minister of Justice, the Head of the High Judicial Council, the Attorney General, and the Legal Advisor to the President, under the auspices of the Prime Minister, to initiate the reform process, discard the Draft Decree-Law Amending the Judicial Authority Law proposed by His Excellency the Minister of Justice, and adopt the Judicial Authority Law No. 15 of 2005 as the basis for the legislation governing the judicial authority and the Public Prosecution, without regard to the Constitutional Court. The aforementioned law is subject to discussion and dialogue, and is considered as a basic document to be added to the bills and studies submitted or to be submitted by the High Judicial Council, the Ministry of Justice and the Public Prosecution.
In order not to use reform as an excuse for making the totalitarian regime official, MUSAWA stresses the following:
1- The political and structural conditions of the regime with all its powers do not allow for radical reform and comprehensive reconstruction of the justice system, given the deliberate political decision not to hold general elections that restore the legality and legitimacy of the political system with its three authorities.
2- All official attempts to reform the justice system, especially the judiciary and the Public Prosecution, through official committees, and the failed dialogues between its officials and the Ministry of Justice and the legal adviser to Mr. President, despite their multiplicity and the fact that they took a great deal of time, and that they were conducted inside and outside the country, and despite the use of regional and international experts.
3- The judiciary, the Public Prosecution and the Constitutional Court are a right that belongs to the citizens and not a personal advantage for their operators. The establishment of a judicial authority as one of the pillars of the rule of law can only succeed through community participation.
4- The Judicial Authority Law No. 1 of 2002, as well as the Law No. 15 of 2005 and the Constitutional Court Law No. 3 of 2006, are all issued by the Legislative Council. They are unanimously agreed upon by the official authorities and the community, and a decree was issued by the President. In that sense, these laws complement the Constitution and regulate one of the State’s three authorities (i.e. the judicial authority), which makes it prohibited for the executive authority to amend or make any changes to them alone.
5- The crisis of the judiciary, the Public Prosecution or the Constitutional Court has never been a crisis of legislation, but rather an institutional matter. It is not a crisis of justice, but rather a crisis of those who are responsible for it.
6- The reform or institutional reconstruction of the justice system is a very sensitive issue considering its connection to one of the components of the rule of law.
7- In light of the official approach seeking a mechanism for reform, and in light of the official view that the Judicial Authority Law No. 1 for 2002 does not provide for it -with our conviction that it contained principles through which the reform of the justice system can be achieved, in addition to the joint cooperation between officials and the community- At this stage, where the executive authority has a deep conviction that the basis of reform is legislative rather than structural, and its declared approach to adopt the Judicial Authority Law No. 15 of 2005 as a basis for amending the Judicial Authority Law and reforming the justice system, we are cautious not to oppose the adoption of Law No. 15 of 2005 as a legal cover and a legislative document issued by the Legislative Council that was approved by the official as well as civil community at the time, especially since it was issued by the Legislative Council with the contribution of committees specialized in judicial affairs, organizations, and social actors, without prejudice or alteration to it in any manner whatsoever, pursuant to a constitutional principle prohibiting any amendment, alteration, addition, deletion or modification of the laws governing the legislative authority or the judicial authority except by the Legislative Council and in accordance with the usual legislative procedures. We recall that the law was canceled by a decision of the Supreme Court in its constitutional capacity in Gaza, which we opposed expressing its illegality whether in terms of the composition of the court or the justification the court provided at the time, especially that the cancellation by the court at the time represented a rejection of a formally and socially agreed reform.
8- Any amendment or prejudice to the Judicial Authority Law No. 15 of 2005 would undermine the judicial authority, not reform it, and allow the executive authority to tamper with it again at any time it wishes, based on the approval of its amendment, according to the minutes of the meeting of the Prime Minister with the Minister of Justice, the Legal Advisor to Mr. President, the Head of the High Judicial Council, and the Public Prosecution on 19/06/2017.
9- While we affirm that the laws governing the judiciary and the Constitutional Court cannot be amended by the executive authority alone. We believe that the institutional reform of the judiciary, the Public Prosecution and the Constitutional Court has become an urgent matter that cannot be delayed, procrastinated or bargained.
10- In order to ensure the proper application of the provisions of Law No. 15 of 2005 as a single integrated unit, and again without prejudice to it, there must be actual consensus and active participation by both officials and the community on the selection of persons responsible for/ members of the transitional High Judicial Council, as stipulated in the said law.
11- The establishment of the Constitutional Court shall not be excluded from the reform process, given its gravity and the futility of reforming the judiciary and the Public Prosecution without reforming the establishment of the Constitutional Court, thus providing for its independence, professionalism, impartiality and integrity.
12- We call on the government to immediately stop submitting explanatory requests to the Constitutional Court which violate its law and the followed procedures to circumvent the Basic Law and the laws in force. We call on the Constitutional Court to stop responding to such requests in such a way as to violate the most basic concepts of constitutional justice.
We hope that all official and non-governmental bodies, including the Bar Association, the Independent Commission for Human Rights, the Civic Coalition for Monitoring the Legislative Process, the Human Rights Council, the Palestinian NGOs Network (PNGO), civil society organizations, parliamentary blocs, trade unions and law faculty instructors will support and adopt this vision, confirming their right to take part in the selection of the Head and members of the transitional High Judicial Council, and the members of the Constitutional Court, if it is decided to keep its composition - despite our opposition to it. We stress our opposition to making any amendment whatsoever to the Supreme Constitutional Court Law No. 3 of 2006 and the Judicial Authority Law No. 15 of 2005, which provides the operators of the judicial function with rights and guarantees in line with the provisions of Law No. 1 of 2002, especially since Law No. 15 of 2005 has been prepared with the participation of the community as well as specialized professionals, and it was approved by the Legislative Council and issued by the President.