Public Court Hearing is a Constitutional Right and infringing it Requires Accountability
MUSAWA- the Palestinian Center for the Independence of the Judiciary and the Legal Profession expresses its shock at preventing the media from covering the proceedings of a trial before the Supreme Court of Justice and broadcasting it to the public, as this prevention reflects a prejudice to the constitutional rights of citizens, and a deviation from the nature of the judicial function, which is supposed to be a right of the public, not a privilege or a power owned by its employees. MUSAWA notes that, by this position, the center does not mean any personal affront to the judges who took the prevention decision, in addition, we affirm that the court is the only body entitled to the authority to adjudicate the disputes without any interference or influence of any origin or kind, including the judge’s personal motives, given that the court is the only body entitled to the authority to adjudicate the disputes in accordance with the Basic Law and the related laws. However, MUSAWA believes that the act of preventing the media or citizens from attending the court sessions of cases that fall under the umbrella of public opinion cases, is not compatible with the duties of the judicial function, and the standards of integrity and transparency in conducting the proceedings publicly enabling the public to attend and identify the litigation proceedings, and ensure their proper functioning, their commitment to the fair trial guarantees, their compliance with the principle of equality before the law, and to assess their level of ensuring the right of defense provided by the constitutional principles and the other civilian rights and freedoms that must be the judiciary’s top priority, according to the provisions of article (105) of the Basic Law which states “Court hearings shall be public, unless a court decides to make them in camera due to considerations related to public order or public morals. In all cases, the sentence shall be pronounced in a public hearing”, in addition to article (15) of the Judicial Authority Act, which provided for the same provisions.
MUSAWA believes that public court hearing is a right that must not be infringed, restricted, or organized, except for cases mentioned in the Basic Law, which are related to public order and public morals, or for other natural causes that could impede it such as having a full court hall, but in the case of the hearing held by the plenum of the Supreme Court of Justice yesterday, none of the two mentioned exceptions were available, given the fact that yesterday’s case is considered a public opinion case, considering that the post of General Attorney concerns the whole spectrum of society as it has a direct impact on its safety and stability, the reason for describing it as a sovereign post, thus, preventing the media from covering the hearing’s proceedings had no relevance to the reasons that authorize the court to turn the hearing to a closed trial, or to practice its regulatory power, furthermore, no conditions that impede enabling the media to perform its duty existed in yesterday’s hearings.
The center asserts that the notion of public hearings is not only limited to open attendance, but also includes enabling the citizens to view and identify their proceedings, which is considered a control tool over the application of law by the justice system, and associated with reasoning the judicial rulings as an obligatory way to control the integrity, impartiality and professionalism of the judiciary, in addition, citizens have the right to comment on judicial rulings by bearing its controls in mind, particularly given the absence of the supervisory authority represented by the cabinet or the legislative council. Based on the foregoing, democratic countries allocate a special space for the media in the court halls, not to mention that the journalist has the right to decide -by his own- on which cases to cover, other than that he/she would be considered a dull follower.
MUSAWA indicates that the court’s decision to prevent, prohibit, or restrict the media coverage is not considered a judicial decision, and does not relate to the characteristics of administrating the proceedings, but rather, it is a human right, therefore it was included under the section of fundamental rights and freedoms as provided in the preamble and part two of the Basic Law, and protected by the binding international bill of rights joined by the State of Palestine, thus, none of the claims or justifications cited by the Tribunal, the judicial administration, and a number of judges on social media, can withstand the truth. One of these justifications is the president of the Supreme Court’s, who, according to news circulated by journalists who were prevented from covering the hearing, claimed that he consented to enable them to cover the hearing, but the decision is the jurisdiction of the chairman of the jury, which contradicts with the constitutional provision and the nature of the prevention decision, which is described as an administrative decision that has nothing to do with the judge's judicial role. Not to mention portraying the judge as a dominated and oppressive character, rather than the one with the power to enforce the law impartially and fairly. In addition, the claim that the jury’s decision was to organize the media right to cover such hearings, not to exclude the right completely, contradicts with truth, logic, law, and reality, given that constitutional rights shall not be organized in a way that restricts, impedes or limits them. Moreover, the claim that the prevention was limited to the media “coverage”, not the media attendance, and thus that the right was not infringed, is a false claim, as the physical presence of journalists, who were not enabled to perform their job properly, is not beneficial, not to mention that applying this right in its cosmetic understanding on some journalists, while some others were prevented from being in the court’s building, is a grave infringement of Human Rights and the imperative of justice. Thereby, MUSAWA points out that describing some means of media as “yellow journalism” without legal basis, is a violation against the freedom of the press, as it dominates, excludes and directs journalists to perform their duty in a manner contrary to the journalism’s norms of professionalism and objectivity, and as it represents an accountable infringement that requires compensating journalists and means of media.
This clear infringement of human rights and the Basic law, which deepened the citizens' lack of trust in the justice system, requires conducting an independent and neutral investigation into the mentioned decision, taking the needed legal action in that regard, accounting the individuals who contributed to violating citizens’ rights, and compensating the individuals and bodies affected by these decisions and actions duly.
Issued on 26/2/2019