Reform of the Judiciary May Turn into a Massacre: MUSAWA's Statement on the Decree-law on Forming Transitional High Judicial Council

2019-07-18

West Bank and Gaza Strip

West Bank / Gaza / Announcement / Core Program 2016-2019 / position paper

Reform of the Judiciary May Turn into a Massacre: MUSAWA's Statement on the Decree-law on Forming Transitional High Judicial Council

 

After carefully reading the decree-laws No. 16 and 17 of 2019 issued by the President on 15/7/2019, and published in the new issue of the Palestinian Gazette issued on 16/7/2019, amending the Judicial Authority Act and forming a Superior transitional Council of Judiciary, we would like to state our view in their regard as following:

 

  1. We note that MUSAWA was the first official and civil organization that demanded to lower the retirement age of judicial positions to 60 years in its memo sent to all the civil and official justice bodies, and published to the public on 17/9/2017, which was considered an urgent intervention to stop the bleeding of the Judicial system, as the bleeding of the justice system, including the Constitutional Court, which was not referred to in the two decree-laws, is indeed caused by a crises of performance and hierarchy. MUSAWA’s suggestion of this reduction was conditional upon a real reform process that averts the singularity of the Executive Authority and prevents it from controlling the Judicial Authority, and upon a tool chosen by a committee or a body that chooses its members according to objective standards that takes the citizen’s trust as a base for it. The mentioned tool shall be agreed on during a conference or a community meeting that joins all the competent bodies that know the needs of building a credible, impartial, transparent, and independent justice system. The meeting shall ensure the participation of all factions of the society to embody the principle of effective multilateralism and shall result in choosing a committee endorsed by the president, whereas his endorsement is only an approving decision to give the committee e legal base, and not a founding resolution, i.e. he does not select the committee members but he approves the formed committee. The committee can use the assist of law and management experts and the tools related to professional and scientific assessment of all public employees serving at the justice system, especially at the Constitutional Court, Regular and Sharia Judiciary and the Public Prosecution, bound to proceedings and time periods provided in our memo on MUSAWA’s initiative for the unification, reform, and improvement of the justice system, which was handed to the official justice bodies and published to the public on 30/1/2019.

 

  1. We express our concern against the failure to respond to our initiative, although our special proposal on lowering the retirement age of judicial positions was considered, but it was provided in a different and threatening approach.

 

  1. Revising decree-law no. 17 of 2019, MUSAWA believes that article three devotes the singularity of the executive authority in choosing the head and members of the transitional High Judicial Council, which was done in the shadows without any real communal participation, and away from any meetings, dialogues or adopting a professional standard.

 

  1. MUSAWA believes that the third paragraph of article two lacks the scientific and professional standards, and paves the way for adopting personal standards that lack the mechanism, the thing that may cause a massacre instead of the intended reform, as the paragraph gave the president of the state the power to dismiss any judge, in case the Transitional High Judicial Council found that keeping that judge in his/her post will affect the authority of the judiciary. 

 

  1. According to subjective standards, the mentioned decree-law granted the Transitional High Judicial Council legislative powers that violate a number of judicial laws, as paragraph four of the second article provides for granting the transitional council the power to prepare for decree-laws amending the Judicial Authority Act, the Bill on the Composition of Regular Courts and any other related judicial laws.

 

  1. The first paragraph of the fourth article includes that the period of the mandate of the Transitional High Judicial Council is one year, extendable by an additional six months, which is a very long period that represents a chance for devoting the manifestations of dependency and vulnerability, and turning the judicial office to a service function that threatens the independence of the judge, and thus bring down the judicial authority both as an institution and as individual judges. 

 

 

  1. The philosophical principles of decree-law no. 17 of 2019 devote the full subservience of the judiciary to the executive authority, and is missing with the rule of “Irremovability of the magistrates and judges of the first instance, except in cases established by law”.

 

  1. The principle of performance appraisal was disoriented by all of the decree-law provisions, which could threaten the job and personal security of those who fill judicial posts, and paves the way for the executive authority to interfere in the performance and affairs of judges, which falls under the umbrella of the totalitarian regime.

 

MUSAWA reaffirms that the justice crisis affecting the whole justice system in Palestine –including the constitutional court is essentially a structural personnel crisis which was depended and became far more serious under the absence of the citizens’ right to choose their representatives in public authorities, and carrying on with avoiding the general elections, which contributed to preventing any updates of the systems of performance accounting, we reiterate that lowering the retirement age of judicial positions is not sufficient, and that the meant “reform” mentioned in decree-law no. 17 of 2019 entails a serious risk that may turn the reform into a judicial massacre that devotes domination, thus, we call upon abolishing the decree-law no. 17 of 2019, calling for a pluralistic community meeting to choose a committee or a body or a transitional council that adopts the professional assessment method according to the components of our aforementioned initiative, especially that this decree-law copies previous governmental initiatives that were adopted by the executive authority since 2005 to date without any results or any progress in the reform process that guarantees the principle of separation between authorities, respects the independence of the judiciary and considers it as one of the main three authorities.     

 

Issued on 18/7/2019

MUSAWA

 

 

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