West Bank & Gaza Strip
Civil Society Organisations in the West Bank and Gaza Strip Call for Judiciary and Justice Sector Reforms
On 15 July 2019, Palestinian President Mahmoud Abbas issued two laws by decree amending the Law on the Judicial Authority and establishing a Transitional High Judicial Council (hereinafter ‘the Transnational Council’), which were published in the Official Gazette on the following day. Then, on 29 July 2019, the President issued presidential decrees promoting 33 judges, with a recommendation from the Transnational Council. In addition, on 31 July 2019, a presidential decree was issued creating the High Coordinating Council for the Justice Sector, headed by the President of the Transitional Council, and composed of the President’s legal advisor, the Minister of Justice, the Attorney General of the State of Palestine, the General Director of the Police, the Chairman of the Palestinian Bar Association, and the Director-General of the Independent Commission for Human Rights (ICHR).
These laws by decree, decisions, and presidential decrees come in light of the continuing crisis in the Palestinian political system and the absence of general elections, years since the end of the constitutional mandate of both the Palestinian President and the Palestinian Legislative Council (PLC), which was dissolved by an explanatory decision rendered by the Supreme Constitutional Court, in violation of the principles of the rule of law and the separation of powers. The laws by decree also come in light of the unprecedented monopoly in decision-making by the executive authority, in addition to the exclusion of the Gaza Strip as well as the Supreme Constitutional Court from proceedings affecting the judiciary and justice affairs, in violation of the right of Palestinian citizens to genuine justice and litigants’ rights before the judiciary.
The aforementioned laws by decree have given the Palestinian President the exclusive authority to form a Transitional High Judicial Council, and granted this Council broad powers over the judiciary and the Public Prosecution, in addition to the possibility to directly appoint and dismiss judges at all judicial levels, to refer them to early retirement, or to re-assign them to other positions. These laws by decree have reappointed and granted members of the former High Judicial Council the power to draft laws amending the laws on the judiciary. In addition, they have granted the Transitional Council a one-year term with the possibility for a six-month extension based on a recommendation by the Transitional Council itself and a presidential decision in this regard. Furthermore, the laws by decree have given the President the authority to pay an unspecified monthly sum to retired judges who were appointed to the Transitional Council as an addition to their pension. This also applies to the Chief Justice Chancellor of the Transitional Council. Moreover, these decrees have set the retirement age at 60 years, which applies to all judges but excludes the judges of the Transnational Council. At the same time, a number of judges over the age of 60 have been transferred to the High Court, to allow them to maintain their position even after the expiration of the Transnational Council’s mandate, which is in direct violation of the principle of generality and abstraction of legal texts, is contrary to the Basic Law and the principles of equality and non-discrimination.
The abovementioned laws by decree have resulted in the referral of a quarter of Palestinian judges to retirement, including judges known for their integrity and impartiality, and judges suspected of corruption but who have not been investigated, who must be held accountable should corruption be proven. This involves violations of the Palestinian Basic Law, constitutional principles and values, and the Law on the Judicial Authority, and are contrary to the principles of integrity and impartiality and requirements of good governance. They also give rise to a conflict of interests and stand in violation of court decisions in that the adoption of the two laws by decree failed to be carried out through prior consultation of the High Judicial Council, and were instead issued through recommendations by the Presidential Committee for the Development of the Justice Sector. These laws by decree further involve constitutionally prohibited discrimination between judges with regard to retirement age, which does not apply to judges of the Transnational Council. They further overlook the structural imbalance in the Palestinian judiciary as a result of the interference by the executive power and its apparatuses with the justice sector, and its synergies with successive High Judicial Council administrations, weakening their institutional composition and functioning and violating the independence of the judiciary and judges. Moreover, the executive authority’s monopoly in conducting the reform is in continuity to its previous attempts, which have failed, despite genuine justice being a right and duty of Palestinian society in the West Bank and Gaza Strip.
The presidential decrees and decisions have established the High Coordinating Council for the Justice Sector and promoted 33 judges. The Presidential Decree forming the Coordinating Council is in violation of the “exclusive” constitutional powers of the President, as set forth in Article 38 of the Basic Law, explicitly affirming that the President exercises his executive powers and duties as set out in the Basic Law, which does not include such powers. In addition, not declaring the bases and criteria followed in the decision to promote certain judges within the judiciary indicates that the laws by decree and presidential decisions seek to fill the void in the judiciary after the referral to retirement has been made and that the promotions were not a result of an objective, genuine, and professional assessment of judicial performance, eventually leading to judicial promotions.
The Chief Justice Chancellor of the Transnational Council shall not, constitutionally and legally, occupy the position of a judge, which may be appealed without a time limit and is considered void as it affects the Basic Law and the constitutional legislator’s will. Thereby, the Chief Justice Chancellor of the Transnational Council is prohibited from exercising any powers vested in the President of the High Court of Justice by the Judicial Authority Law and other laws, as the President of the High Court of Justice is a judge while the Chief Justice Chancellor of the Transnational Council is not. One example is the role of the president of the High Court in the disciplinary lawsuit that is raised against judges under the Judicial Authority Law. This means that any power exercised by the Chief Justice Chancellor of the Transnational Council as head of the High Court or as a judge, render such powers void, due to their violation of the Amended Basic Law. In addition, judges have a right to freedom of expression enshrined in the Basic Law and international treaties and standards, which must be respected.
Accordingly, the undersigned Palestinian civil society organizations in the West Bank and Gaza Strip call for:
Organizations endorsing this position paper:
TRANSLATED BY AL-HAQ