To Prevent any Further Deviation and Loss of Direction
A position paper: standing up to deficiencies and eliminating the reasons for the breakdown of trust, followed or accompanied by a serious consideration of reform
The presidential decree, issued on 06/09/2017, to establish a national committee for the development of the justice sector and the review of the judicial legislation system, as stated in its first Article, reflects that the executive authority still insists on holding on to the same tools adopted several times over the past nine years, knowing that no substantial results were achieved and without seriously addressing the situation of the justice system, "namely the judiciary, the Public Prosecution, the Ministry of Justice and the Constitutional Court".
Those who keep an eye on the developments happening in the justice system can clearly observe that there is a tendency to keep using the same approach and the same tool, beginning from the initiation of dialogues, meetings and discussions among those who are responsible of the official pillars of justice, including the judiciary, the Public Prosecution and the Ministry of Justice; followed by the organization of similar meetings and discussions but with regional and international experts, including the Former Minister of Justice in Jordan Dr. Salah Al-Basheer, in addition to European experts who were assigned either to work within the High Judicial Council “a French expert” or to participate in a discussion, held in London with the support of the Quartet and the participation of experts from inside and outside Palestine, bringing together the same parties; followed by meetings and discussions of the same nature, initiated by international experts and supported by the UNDP. These meetings have not delivered as expected. The conflict over powers has remained the same, and the justice system has witnessed, and still does, a significantly accelerating deterioration. This has been confirmed in numbers and surveys, some of which were supervised and published by the High Judicial Council itself in addition to those issued by national and international institutions.
In order to prevent any further deviation and loss of direction and to actually solve the problem by standing up to deficiencies and eliminating the reasons for the breakdown of trust in the performance of the justice system, it is highly important to distinguish between two requirements: First, the reconstruction of the justice system and reviving the rule-of-law institutions; a requirement that can only be met within a context where citizens can exercise their right to select their representatives through periodic and impartial general elections, where any reasons for political division are eliminated, where the principle of the separation of powers is realized and respected, and where the three branches of State play an active role in building a State where the rule of law prevails. One cannot speak of a professional, active and impartial judicial authority that is capable of enforcing the rule of law on an equal under a totalitarian regime where citizens cannot exercise their right of selecting their governing representatives periodically and in light of a political, geographic and structural division. The proper tool to meet this requirement is purely political; essentially a widespread community discussion should be held in order to reach a national consensus regarding the tools and procedures for restoring legitimacy to the entire system of government, including the judicial authority.
On the other hand, overcoming the serious and continuous deterioration of the justice system and its performance “the judiciary, the Public Prosecution, the Minister of Justice and the Constitutional Court”, which represents the second urgent requirement, is within reach and it can be achieved in compatibility with the law and the constitutional principles as it is an urgent matter that cannot bear any delay. What has been said can be arrived-at when there is a clear political will to issue a decree-law that consists of one Article, stating: “A- In spite of what has been stated in any other legislation, those who turn sixty years old may not remain in the position of judge or be appointed as judge. B- Any interference in the work of the judiciary by any person or party is prohibited, and any interference in or influence on the work of judges is a crime carrying the penalty of imprisonment and dismissal from position if the crime were committed by a public official”.
This decree-law serves as the legal tool that makes it possible to stand up to the structural crisis at hand, which represents the main reason for the breakdown of trust in the performance of the justice system. On one hand, this tool conforms to the legislation that regulate public offices. On the other hand, it does not involve an amendment to the Judicial Authority Law itself. This tool, which is suitable for the urgent matter in question which cannot bear any delay, deals with general rules and addresses the justice system in its entirety, with specific focus on point “A”, in consistency with the legislation regulating public offices.
In the same context, a presidential decree should be issued to start organizing a widespread community dialogue that aims at reaching a national consensus regarding the proper mechanisms to restore the legal life to the political system, the requirements for re-developing and unifying the judicial authority in both parts of the country, and the necessary legal as well as administrative tools which would guarantee a reformed judicial authority with that plays a more active role while realizing the principle of the separation of powers and implementing the rules of good governance.
This proposition is supported by a number of relevant facts and experiences in the regional and international context, such as Lebanon, Jordan, Morocco, Germany and South Africa:
- The crisis of the justice system is a human structural crisis rather than a crisis of legislation; a structure that made use of legislative imperfections or lack of legislative clarity in the Judicial Authority Law in force; a structure that did not maintain the independence, professionalism and impartiality of the judicial authority. Not only this, but it also opened the way for the executive authority to interfere in the judiciary in terms of structure and function, reaching a relation of dependency “intermarriage” between the two authorities. A good example of this would be the resignations-in-advance of the heads of the High Judicial Council. The High Judicial Council adopted the same policy and administrative tools and procedures of the executive authority in dealing with judges, judicial personnel and community partners.
- It is impossible to separate the reform or development of the justice system from the requirements of political reform, and ending the division in all its forms and repercussions.
- It is incorrect and illegal to delay finding a solution for the decline of trust in the justice system and its performance by attributing this decline to the current division and absence of the Palestinian Legislative Council (PLC), which would deepen the crisis and increase the mentioned lack of trust.
- There is an urgent need to address the structural crisis in the justice system in order to stop the deteriorating situation and open the prospects for reform and development.
- It is useless to deliberately mix-up between the causes of the crisis and to continue to portray the crisis as a conflict of jurisdiction, a crisis of legislative or legal text, or a crisis of PLC absence. Sticking to a policy of managing a crisis rather than actually solving it is of no use, like the failure of the methods used over the last nine years.
Based on what has been said above, putting an end to the deterioration in the justice system comes first, followed or accompanied by seeking and restoring the legal legitimacy as well as implementing the principle of the separation of powers. All of this would be in reach if our proposition is adopted and put into practice.
To ensure that such a failure will not happen again and that we will not keep running in circles, we believe that our professional, independent and impartial proposition is the only solution for the said deterioration and the only way for reaching a community consensus towards reconstruction.
One last point that we should address -with all due respect- is the fact that the presidential decree explicitly states in its fourth Article that the committee at hand is assigned to give recommendations about the decree-laws to be amended (namely the Judicial Authority Law, as it is the legislation which regulates the decree-laws) only to the President using terms such as ‘development’ and ‘reform’; it targets the regular judiciary without including the Public Prosecution, the Supreme Constitutional Court and the Ministry of Justice; it uses job titles for memberships in the committee; and it gives the committee a period of six months to present its recommendations in relation to the amendments to the Judicial Authority Law and judicial legislation, indicating that this is the only task to which the committee is assigned according to the said presidential decree. Through this presidential decree -with all due respect-, account has been restored to the same tools and methods which had been adopted one time after the other.
It is true that we hope that the best would come out of any effort or initiative; however, we truly believe that the decline of trust in the justice system and its performance requires immediate and rapid action which cannot bear any delay. This action would be to adopt our proposal at hand and to put it into practice immediately, as well as to initiate a community dialogue which aims at reaching a national consensus on fundamental and effective solutions that will enable the development, reform and building of a comprehensive and competent justice system’ a justice system capable of fulfilling its tasks and exercising its powers and powers with utmost integrity, impartiality and competence under a legal system that respects and truly embodies the principle of separation of powers.
Issued on 17/09/2017
MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession