Position Paper on the Privatization of Judicial Services and the Delegation of the Chamber of Commerce to Settle the Financial Disputes between Traders
With an initiative from MUSAWA- The Palestinian Center for the Independence of the Judiciary and the Legal Profession, and within the context of the monitoring role it plays over the performance of the justice system, the center held a legal meeting on 25/4/2019 at the sharia Bar Association in Gaza with the participation of 34 legal specialists, lawyers, law academics and interested community figures, including a representative of the Ministry of Justice, the Head of Sharia Judicial Inspection Department in Gaza, a Sharia Supreme court’s judge, and a number of representatives of rights institutions and civil society institutions. The participants discussed the two circulars issued by the deputy head of the High Judicial Council in Gaza, one of which provides for delegating a private company to provide judicial services (delivery of judicial orders), while the other circular provided for obligating the judicial executive departments to refer financial executive suits filed against traders to the Chamber of Commerce, which was granted the power of settling the disputes between traders, in addition to imposing new notification fees that exceeds the regular fees, thus placing an extra burden on the litigants in contradiction with provisions of the Basic Law, which provided that fees shall only be imposed by law, the circular also oversteps the judges’ powers in choosing the notification methods as provided by the Code of Civil & Financial Procedures, given that hiring a specific company to carry out this task, by an unpublished agreement contradicts with the due process provisions, as the deputy head of the High Judicial Council exceeded his legal competences by issuing legislation that does not fall under the umbrella of judicial competences.
The participants also discussed the compatibility between the two circulars and both the Basic Law and the Code of Civil & Financial Procedures, their compatibility with the guarantees of the litigants’ rights, and their implications, which include affecting the constitutionally guaranteed regular judge rule. Other topics were discussed by the participants including, the compulsive judicial implementation of judicial decision issued by competent judicial bodies, the risks of granting private parties judicial powers in violation of the law provisions, prevailing upon the powers of the competent judge regarding the notification method, exceeding the powers and authorities of the legislator, and issuing the two circulars by an administrative decision carrying a legislative content that exceeds each of the competences of their issuers, the powers and authorities of the legislator, and the powers and authorities of courts. The audience agreed that both the circulars unlawfully affect the litigants’ right to access to justice, and overstep the due legal process governing the selection of the body/company to be delegated to provide judicial services, and delegating the delivery of judicial orders to a specific company without legal grounds and without neither indicating the procedures nor announcing the obligations incumbent upon it, which should be done in a manner that ensures that the selection resulted from a professional competition is based on clarity in the procedures and the obligations that must be followed at the risk of accountability in order to avoid the suspicion of corruption;` all to guarantee the legality of the notifications, and to avoid its expiry. Finally, the audience agreed that the two circulars resorted to settlement methods and procedures in violation of the judicial settlement proceedings provided by the proceedings law, instead of activating its provisions, and that waiving the judiciary’s powers and authorities to a private company does not –by law- grant it any judicial status, power, or authority, which violates the principle of separation ofpowers and the independence of the judicial authority.
Based on the mentioned discussions, the participants called for abolishing the two-mentioned circulars and organizing a hearing session for their issuer, the representatives of the Chamber of commerce, and Mirsal company (The chosen company), to identify the reasons and justifications of issuing them by an administrative decision in violation of the law. Moreover, the participants called all the duty- bearers at both official the official and civil society institutions to adopt the content of this position paper and address it by taking the needed legal and social action that guarantees to abolish the two circulars and to control their implications.
Of With All Due Respect,
Issued on 20/5/2019
A copy for Adviser, Ziyad Thabet, the Head of the Department of Judicial Inspection