West Bank & Gaza
Do Not Pay It Attention, Do Not Issue It
The Draft Decree-Law on the High Criminal Court has stirred reactions among many legal figures and competent Civil Society Organizations (hereinafter CSOs), as the Civic Coalition for Monitoring the Legislative Process called an ad hoc meeting to discuss the first draft, after the coalition was able to obtain a copy. The meeting concluded that the draft involves inconsistencies with the Constitution and prejudices the basic rights and freedoms of citizens. This is why it should not be approved or issued; it should be set aside. Nonetheless, the respected Council of Ministers went ahead in this direction and referred the draft on 13/12/2016 to Mr. President for issuance, following their weekly session no. 130/17, without giving CSOs the opportunity to express their thoughts on the matter or listening to their comments which would present enough reasons for why this decree should not be passed.
The Civic Coalition for Monitoring the Legislative Process along with relevant CSOs have reservations about issuing presidential decrees as the Legislative Council, which holds the inherent legislative jurisdiction to do so, continues to be absent. Given the resulting serious prejudice to the principle of separation of powers, the issuance of any legislation should be stopped as long as citizens are not able to exercise their right to elect their representatives, and the three branches of authority are not operating under the principle of the separation of powers. Article (43) should not be over-used in issuing presidential decrees, as long as the necessary conditions and standards are not clearly and indisputably established.
Here, it would be reasonable to refer to the Palestinian Basic Law and the binding international agreements Palestine has acceded to, particularly the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, in which the principles of fair trial guarantees, equality before the law and the judiciary and protection of basic human rights and freedoms are embedded. These are also stated in the second section of the Palestinian Basic Law. In this regard, we would like to refer to Articles 9, 10, 11, 14, 15 and 19.
When examined in an objective and professional manner, one can clearly notice that the aforementioned draft decree-law involves a number of violations and encroachments of human rights and the provisions of the Basic Law:
Article (71) of the Basic Law states in the fourth paragraph that each Minister shall exercise their power within their respective ministry to propose bills and legislation related to the ministry and to present them to the Council of Ministers, which in turn transmits the draft laws to the Legislative Council, pursuant to Article (70). This means that the Council of Ministers or the Minister shall not propose draft laws beyond the operational purview. Also, the Council of Ministers’ role is limited to proposing, not approving, the draft laws as it does not have the authority to approve or submit legislation to Mr. President for issuance.
Article (43) of the Basic Law states that “The President of the National Authority shall have the right, in cases of necessity that cannot be delayed, and when the Legislative Council is not in session, to issue decrees that have the power of law”. This indicates that the Council of Ministers does not have the authority to approve or recommend the issuance of decrees given that decrees are at the core of the authorities granted to the President and do not require any recommendations. Accordingly, the draft decree-law not only usurps the Legislative Council’s authorities but also those granted to the President.
Furthermore, the draft decree-law is not in line with the requirements of the operation of Article (43), particularly in the case of necessity that cannot be delayed which contradicts with the Council of Ministers’ long procedures of carrying-out three readings of the first draft. Needless to say, the subject of the draft is at the core of the Judicial Authority’s work, and it does not fall within the Council of Ministers’ executive competencies. In addition, it is one thing to propose a draft law, but another to discuss the draft law, approve it following a three-level reading and recommend its issuance, as this recommendation has no legal grounds in the first place. Furthermore, it is not in the power of the Council of Ministers to draft laws relating to the Judicial and Legislative powers.
Looking at it from a different angle, this draft decree deviates from key constitutional principles, most notably Article (100) of the Basic Law, which identifies the structure of the Judicial Authority and states that it shall be handled by the courts. By operation of this text, the Legislative Council passed the Judicial Authority Act and the Law on the Formation of Regular Courts, both of which are considered to be the constitutional ground that restricts the formation of courts and defines their levels. Any changes to the provisions of these two laws shall only be made through an amending law issued by the Legislative Authority, as it is a law that relates to the State’s structure.
Moreover, the draft decree derogates from the powers granted to the High Judicial Council based on the Judicial Authority Act, including the President of the Supreme Court’s competence relating to the operation of courts outside the scope of their regular competencies.
Add to that the fact that the draft decree represents a clear violation of Articles (11) and (12) of the Basic Law, evident in the severity of restrictions on personal freedoms. Any departure from these two Articles should be extremely restricted and within the common international standards of detention and restriction of liberty, without prejudicing or breaching the presumption of innocence for all. Elaborating more on the matter, the draft decree contains restrictions and precautionary measures that outweigh sanctions in terms of severity. Examples include: one-year travel ban renewable for an open period of time; detention for a week by the Attorney General; or detention without a court order.
The draft decree-law is inherently contradictory in that it regulates dangerous crimes which require a different kind of handling compared to other crimes, meaning that the draft includes provisions related to offences that are categorized as misdemeanors. Needless to say that, when it comes to misdemeanors, the draft decree-law overrides the will of the legislator as prescribed in penal laws. Also, there is in fact no practical need for the issuance of this decree, for the felonies it addresses are decided-on by the Courts of First Instance as follows: Felonies with a punishment that does not exceed a ten-year sentence are referred to an individual judge, whereas felonies that exceed the 10-year punishment are decided-on by a court-of-first-instance commission consisting of three judges. Courts of First Instance can be found in every governorate, 8 Courts of First Instance specialized in felonies are available in eight governorates, consisting of a number of judges enough to be divided into more than one commission. However, the draft mentions that the proposed High Criminal Court shall be established in Ramallah temporarily, and in any other governorate if necessary. Taking a closer look at the penal code in force, one can observe that the entirety of felonies currently being considered will fall within the competence of the new High Criminal Court. This means that all cases from different governorates will be gathered and accumulated before the High Criminal Court. This will be a burden to the new court, which contradicts the declared purpose of the draft.
The proposed criminal court will consist of first instance judges, who might be the same judges who were already involved. What is the purpose of establishing such a court, then? Needless to say that the lack of a practical need for this court negates the case of necessity which cannot be delayed, mentioned above, upon which presidential decrees are issued.
In this regard, we would like to point out that the proposed draft decree-law is nothing new to the Palestinian legislation. A legislation carrying the number 7 was previously issued in the year of 2006 about the high criminal court. In the same year, however, the Legislative Council decided not to issue it. It could have been issued as a decree-law, knowing that its drafting was stronger than that of the proposed decree-law.
Given the involved imperfections, and serious violations of the constitutional principles and the Palestinian State’s obligations, discarding this draft would obviously be consistent with our reality and the law.
Committing to this requirement, we ask Mr. President not to issue the draft decree-law. The purpose of this paper is not that of making modifications but rather shedding light on the consequent risks which strongly indicate that there is no need for such a legislation. After reviewing the texts and provisions of the draft decree, the following facts are evident to us:
Article 1: definitions: the definition of pre-arrival screening lists. The draft decree-law confuses the concepts of travel-ban and pre-arrival screening. Travel-ban is a precautionary measure issues by a court order in accordance with the strict regulations enjoined in paragraph 2 of Article 11 of the Basic Law, which states that “1- …, 2- It is unlawful to arrest, search, imprison, restrict the freedom, or prevent the movement of any person, except by judicial order…” Travel-bans are issued by a competent judge against indictees who might escape justice. The person banned from travelling shall have the right to know the reasons for their ban as well as its timeframe. It is true that pre-arrival screening shall also be issue by a competent judge; however, it differs from travel-bans in that it either includes notifying the listing party of the arrival of the listed person only and allowing him to enter the country so as to ensure his appearance before the listing party, attaching a memorandum of apprehension and appearance to the listing. The listed person’s right to cross his name off the list shall be ensured in either case. Both, travel-ban and pre-arrival screening lists, do not fall in any way within the Attorney General’s scope of work or authority. Accordingly, granting such an authority to the Attorney General violates the Basic Law, encroaches the powers of the judiciary, and prejudices the constitutional rights of citizens.
Article 2: this Article is ill-drafted/ill-formulated, as it is not clear on which procedures the provisions prescribed by the Penal Procedure Law apply. Do they apply on the procedures of investigation, referral, presenting evidence, or proceedings?
Article 3: Unnecessary so that it would not be understood as if suggesting to move the High Criminal Court from the category of regular judiciary to a special tribunal which is not supported by the constitution, on the grounds that the Basic Law categorizes the judiciary into natural, regular, administrative or constitutional justice; Shari’a judiciary; and military justice. There is no mention of a special tribunal. Moreover, there is no need to state such an Article so that it would not be perceived as intending to appoint new judges and Public Prosecution members, especially that there are laws regulating specialized justice systems, such as the Law on Anti-Corruption, which do not provide such a text, and its judges and Public Prosecution members are subject to the provisions of the Judicial Authority Act.
Article 4: the text is wide-ranging, and it is a repetition of Article (14) of the draft. Formulated as such, one gets the impression that it will be used to jeopardize human rights and fair trial guarantees, as it does not aim at shortening the postponement period of court hearings but rather it talks about the pace of adjudication!!
Article 5: this text should be placed under the Law on the Formation of Regular Courts.
Article 6: this text deviates from the rules of court sittings outside the sphere of its competencies, which is regulated under the Judicial Authority Act and the Law on the Formation of Regular Courts. Furthermore, the text is faulted with a serious mistake in the wording, for it indicates that the court sits outside its temporary place based on a request by the Attorney General, as if such a request is a binding decision. However, the location where the court sits does not in any way fall within the sphere of authority granted to the Public Prosecution, which is an adversary rather than an adjudicator. Originally, the Constitution states that one should adhere to the rules of court sittings outside the court’s sphere of its competencies. Accordingly, the court convenes following a judicial decision, under full judicial authority, and it falls within the competence of the president of the court or the competent judge to accept or reject the Public Prosecution’s request. The drafting of the text, however, jeopardizes and allows the Public Prosecution to encroach the powers of the judiciary.
Article 7: When it states that the bench shall consist of three judges whose rank is no less than a judge of First Instance, the text indicates that the bench might include Appeal and Supreme judges. This in fact contradicts the principle of two-level litigation and the hierarchy of the judicial structure, for it is implausible to imagine that the Court of Appeal, for instance, would decide on an appeal against a judgment pronounced by members of the court itself, or members of the Supreme Court which is of a higher level.
Article 8: it contrasts with the Penal Procedure Law. Before the Court of Appeal, the Public Prosecution is represented by a deputy prosecutor. However, the representative that appears before a lower-level court, such as the one in hand, should be a Chief Prosecutor.
Article 9: according to this text, the court is assigned to a wide range of competencies. In its first paragraph, the Article mentions that the court shall be competent to decide and adjudicate on homicides except for manslaughter. Acts that fall under the definition of killing vary vastly, including beating resulting in death, abortion resulting in death, burning resulting in death, and so on. In the second paragraph, it lists crimes of indecent assault as well. The third paragraph refers to crimes against internal and external State security, which is a broad concept that is very difficult to control, define or limit. It could mean that expressing one’s opinion on social media channels (Facebook) is a crime against the State security. Also, attempted murder is listed in the fifth paragraph despite the fact that the legislator of the substantive law does not criminalize attempts to commit misdemeanors in the first place, unless there are explicit provisions that suggest otherwise.
Article 10: it grants the Public Prosecution authority to take any precautionary measure, which is a broad and undefined concept that is subject to the interpretation of the person carrying out the investigation. This might be considered as a new creation that deviates from the binding legal rules of clearly demonstrating the nature of the measure taken and its type without any kind of generalization.
Article 11: Not only does it re-grant powers to the Attorney General beyond his constitutional jurisdiction, travel-ban and pre-arrival screening lists in particular, but it also pushes the Public Prosecution’s line of authority to the extent of enabling it of imposing travel-ban or listing orders for one year, renewable. It also overrides and eliminates the jurisdictional power. In addition, the text contains a substantive criminalization that has no place under the Law on the Formation of Courts or the draft at hand, but rather it falls within the jurisdiction of the original legislator; the Legislative Council or Parliament. This is evident in paragraph 5 of Article (11), which states that breaching a travel-ban order is in itself a crime punishable by two years’ imprisonment and a fine of up to five thousand Jordanian Dinars.
Article 12: the legislator grants the deputy prosecutor the power to detain an accused individual for a week, which washes the accused individual’s right to freedom, for the basic principle is that the accused individual is originally free and innocent. Also, it prevents the court from monitoring the detention during that period; it amends the Penal Procedure Law; and it wrests power from Magistrate and First Instance judges to decide-on detention extensions, granting this power only to the High Criminal Court. This contradicts and violates the Penal Procedure Law.
Article 15: the third paragraph mentions a new term suggesting that it is inadmissible to reconsider a judgment on the trial of an indictee, as if they had been present, in the case they did not appear in a court session for any reason whatsoever except for unforeseen circumstances accepted by the court, reaching the extent of depriving the indictee of his right to defend himself.
Article 16: it includes a substantive text that should be under the Penal Code. It states that penalties are reduced by one-third, which deviates from the prescribed general rules.
Article 17: this text would lead to an extremely dangerous phenomenon. It allows the Attorney General to request the transfer a case from a bench to another one consisting of judges of the same level. This is inconsistent with the rules of governance, for adversaries do not choose their judges. Furthermore, this represents an interference in the work of judges and influences their independence based on a broad concept like the aforementioned public disorder. Moreover, the text went too far in giving the Attorney General the right to transfer a case from a bench to another one consisting of judges from the same court throughout all stages of the proceedings, including investigation. This implies that “judges are hand-picked”, which is an extremely dangerous matter that threatens the State’s legal foundations.
Article 18: contrary to the Penal Procedure Law, the third paragraph prevents the release of an indictee under any circumstances, even if the verdict was appealed.
Article 21: this text challenges the two-level litigation principle in making the Court of Appeal a court of law rather than a trial court. It states that appeals are considered in terms of whether or not the court’s judgment is in line with the law rather than the dispute itself, except in the case of death penalties and life imprisonment with hard labour. The gravity of this text is no less than that of Article (17), for it undermines the judicial system in its entirety and deprives litigants of a complete litigation level.
Article 23: it departs from the judicial principle laid down by the Court of Cassation which states that when a case is being decided-on by a competent court, and a new law is then passed stating that the subject of this case shall be transferred to a different court/jurisdiction, this law shall not prejudice the jurisdiction of the original court, as long as it is in the process of deciding on the case.
It is of paramount importance to examine the contents of the explanatory memorandum attached to the draft decree at hand. What is eye-catching is the section that talks about reasons/justifications supporting the draft decree. There, it is listed that we have no criminal courts, which is not true. The Court of First Instance is the court that is specialized in felonies, and there are eight of them distributed over all governorates. This is in addition to saying that there are no judges competent to decide-on specialized criminal cases, which is an extremely negative assessment that prejudices the Palestinian judiciary as a whole. We are amazed and bewildered by such a statement, as it gives rise to conflicts and doubts around judges who have examined and decided on hundreds, if not thousands, of various kinds of felonies. Another listed justification/reason that grabs one’s attention suggests that it is important to address organized crime that goes beyond State boarders, which exceeds the capabilities of the State of Palestine. The draft decree does not specify these crimes, and we find it strange that it lists the so-called internal State security crime under this category. When it comes to the desired goals, the memorandum mentions that the overall objective of the decree is to consolidate the principle of the rule of law and judicial independence. Would not anyone with a legal mind and vision see a contradiction in this!
Moreover, it is mentioned that the specific objective of the draft decree-law is protecting the rights of the individual. What a protection. Another specific objective that is pointed-out is preparing judges to become highly skilled and qualified to deal with such cases. Is not preparing and rehabilitating judges possible without having to establish such a court!
Regarding the section that deals with the decree’s influence on other legislation, not only is it inconsistent with the reality but also with the law. The Basic Law, the Judicial Authority Act and the Law on the Formation of Regular Courts all address the structure of the Judicial Authority. Any changes to this structure shall only be made through a new law amending the Judicial Authority Act and another one amending the Law on the Formation of Courts, both of which are considered as complementary to the Constitution and it is prohibited to amend them by a presidential decree, let alone amending them through a special decree that aims at establishing a special court that is constitutionally banned.
Under the same section, it is also mentioned that this draft decree does not conflict with the existing sanction laws and the laws governing the judiciary. Not only does it differ from reality but in itself it also indicates that there is no need for such a draft decree. This is not to mention that the memorandum does not take account of the related financial cost or economic impact in case the decree-law is passed, God forbid.
We could have added pages and pages about formal and linguistic deficiencies and defects in the drafting and use of grammar, not to mention the inadequacy of the provisions set down in all of the Articles. What has been pointed-out in this paper serves as a basis for our demand of Mr. President not to issue the draft decree-law or pay it attention, and to set it aside.