(By Legal and Technical Adviser Ibrahim Barghouthi)
It goes without saying that it is essential for any political regime, built on the principles of a State of law and the flexible separation of powers (i.e. Legislative, Executive and Judicial), to include a Judicial Authority that is professional and effective.
It is self-evident that building a Judicial Authority that is impartial, fair, competent, independent, effective and capable of enforcing the law equally requires that the judicial position be looked at as a social duty and a right to citizens rather than a personal advantage for those who occupy it.
The concept of an independent effective judiciary is complex. Its constituent elements can only be unveiled in reference to the constitutional values and principles of a State of law. These values may differ throughout history depending on the circumstances in which they emerged and took place; however, theoretically they can be limited to six principles that characterize modern democratic countries and are necessary conditions for building an effective independent judiciary:
First, a flexible separation of powers. It is a fundamental feature of modern democratic constitutional states as well as parliamentary regimes that are based on the will of the public, who hold authority and choose their representatives/MPs, Legislative Authority which makes the law on behalf of the public and Executive Authority which enforces the laws set by the MPs. The public observes the aforementioned actors and holds them accountable through its Judicial Authority, which implements the laws approved by the representatives. It is worth noting that the separation of powers is embodied when each of the three branches of government fulfills its duties and exercises its authority within lawful boundaries without overstepping the authority lines granted to other branches. The principle of separation of powers is also represented in prohibiting the accumulation of too much power in the hands of a single governmental body since this would go against constitutional rules and encourage the tyrannical use of power. By the concept of separation of powers, the ruler (Executive Authority) does not have absolute powers but rather commits to respecting the laws while collaborating with other authorities. A flexible separation of powers serves this end so that all governmental bodies work towards achieving a common goal, represented in protecting the general interest and maintaining the rights of individuals.
Second, judicial supervision to provide security and stability for the community. Legislative supervision has a political focus, and administrative executive supervision results in administrative bodies that are both adversary and ruler. When it comes to judicial supervision, however, it is the one that resolves conflicts among individuals or between them and the State, and it implements the law equally on everyone on the basis that it is prohibited to deprive citizens of seeking remedy from their natural judge, undermine their right to litigate, or obstruct the judicial function. The concept of judicial supervision is an expression of the principle of rule of law, which is the basic standard to reach democratic governance, under which no Executive Authority can take an action that contradicts with the rule of law, and all citizens shall take into consideration the rights of other citizens pursuant to the rule of law.
Third, Judicial Authority is a right of the State’s and a manifestation of its sovereignty. The other authorities are prohibited from interfering in its work, but this does not necessarily mean that the judiciary should be isolated from the community or excluded from the population’s oversight. This oversight role on the work of judges can be manifested through several means, including public trials and the pronunciation of sentences, justifications of court rulings, authorities granted to the Department of Judicial Inspection, anti- corruption commissions, and the oversight role of the Legislative Authority.
Fourth, the judicial function is considered the safety valve of the community and its political regime. It should be assigned only to those who are qualified. This requires that this person be honest and independent of any political party. Otherwise, we cannot speak of a competent judiciary that is capable of resolving social, economic and political conflicts, which might lead to a state of chaos, corruption and loss of justice, hence threatening the existence and development of any political entity or even State.
It is not plausible to speak of an independent effective judiciary if law-enforcers do not possess the aforementioned qualities, even if ideal legal texts are in place. It is fair to say that the most serious threat to a State of law and an independent judiciary is having laws violated by those who are supposed to enforce these laws, judges at the forefront.
Fifth, provide constitution protection for the independence of the judiciary and judges. This can be achieved by establishing clear laws and providing judges with everything they need to ensure that they are able to perform their duties away from any kind of fear, threat or interference. Judges should not work in an atmosphere where there are no personal safety guarantees or stability.
This should be accompanied by a deepened belief in the independence of the judiciary amongst the people, whereby it is of no less importance than food, air and water. Also, a popular lobby should be established to protect the judiciary from any kind of assault on its authority or any obstacle to the implementation of its sentences. It should be borne in mind that even though the occupiers of judicial functions are granted authority to issue decisions and court rulings which are presumed to be right, these are still the product of human thought which is subject to error. This is why modern adjudication systems should operate according to the two-level litigation process and encourage commenting on sentences and court rulings as a tool that contribute to an elevation in the performance of the judiciary, both in form and content, within certain boundaries and legal standards.
Sixth, as the other side of Judicial Authority, the legal profession should be independent and effective. Lawyers constitute the auxiliary personnel for judges. They work closely together with the judicial authority in order to meet the demands of true justice, stress the rule of law, guarantee the right to defense, maintain freedoms, ensure that the procedures and standards of fair trial guarantees are being secured and respected, and that everyone is treated equally before the law and the judiciary.
There is no need to give further details on the weak points that the judiciary has been suffering from since its emergence, starting from the selection criterion of judicial functions; overlooking -if not violating- certain qualities that judicial employees in both parts of the country should have (independence, competency and integrity); manifestations of the politicization of the judiciary; the rude interference in the judiciary’s internal affairs, which lead -and still does- to the judiciary’s subordination to the executive authority, hence enforcing the executive authority’s policies and serving its interests; and obeying the instructions of the security forces even if this means violating the law by the very persons who are engaged in its enforcement. This is an issue that the judiciary has been suffering from since the establishment of the National Authority, and it was deepened further after the dreadful division.
In order to unify the judiciary, a consensus should be reached first on the vision, approach and the purpose behind the unification. This should come along with the creation of means, mechanisms and tools that would guarantee the establishment of a single Judicial Authority in both parts of the country; one that is characterized by the aforementioned features.
The current political, executive and administrative situation indicates the lack of neutrality on the executive authority’s part, and the absence of the political will to build a judiciary that is unified, effective and honest. Decision-makers are holding on to a policy of acquisition and accumulation of power to the extent that the Executive Authority now considers the judiciary a services facility rather than a law-enforcing body. Not only this, but it also looks at the judiciary as an administrative unit which implements the security policy and serves the political interests of the Executive Authority as well as the personal interests of its figures, and is exclusively established in accordance with these interests.
This is the true reality of the Palestinian judiciary. The citizens’ trust in the judicial system has hit rock bottom, and the Executive Authority and security forces’ interference in the judiciary’s work has expanded.
All of this indicates the vitality of ensuring that the decision-making process related to the re-building and unification of the judiciary is not limited to the Executive Authority. This requires that an alternative approach be sought; an approach that is different from the one which lead to the judiciary’s current status.
Before speaking about viable alternatives, it must be pointed out that in the context of a non-democratic system where the citizens’ right to choose their representatives is violated, the Legislative Authority is absent, and the holding of elections is continuously postponed, it is impossible to speak of a decent, impartial, effective and competent judiciary that is capable of enforcing the law. There is a need for an honest political will to ensure that the general elections will be held as soon as possible, as well as a new Legislative Council and a new presidency.
Once this is achieved, the elected Legislative Council takes the responsibility to call for a national conference that bring together representatives of Civil Society Organizations, academics, and community groups. The Council also chooses a committee of independent persons who are well-known for their impartiality, integrity and professionalism. Based on the will and choice of the conferees, a presidential decree is issued to appoint the committee and assign it to assess the performance of everyone who occupies a position in the Public Prosecution from the bottom of the pyramid to its top. Those who possess the necessary requirements and qualifications stay in their positions while the rest are either transferred to a different governmental position or are retired and their financial rights are preserved. Furthermore, the committee shall in a maximum period of six months evaluate the performance of judicial employees from top to bottom. Those who possess the necessary requirements and qualifications stay in their positions while the rest are either transferred to a different governmental position or are retired while preserving their financial rights. Those who possess the necessary requirements and qualifications, at the core of which is independence, impartiality, integrity and competence) stay in their positions while the rest are either transferred to a different governmental position or are retired while preserving their financial rights. In addition, the committee shall make sure to put the right judge in the right judicial position, identify human needs, and choose judges to occupy the vacancies that will result from the aforementioned assessments.
It should be confirmed that the decision to establish the committee is in line with the standards mentioned above, and that any decision issued by this committee shall not be subject to appeal and it shall be put into force as of the date of its issuance. Moreover, the committee shall be granted authority to propose amendments to laws, as they see necessary. The Legislative Council is in charge of approving these amendments whereas the President is responsible of their duly issuance as quickly as possible. Once it has fulfilled all of its tasks, the committee shall be dissolved and the High Judicial Council formed in accordance with the relevant laws.
This is the way that would guarantee the re-building of the Judicial Authority and its unification in the highest quality and the shortest period of time possible. The same applies to the Public Prosecution.
Given the importance of the Supreme Constitutional Court, the aforementioned committee shall also be assigned to examine the Supreme Constitutional Court’s law and the extent of need for its establishment. The committee shall be given the capacity to issue an applicable decision regarding the matter. If the committee finds the Constitutional Court to be a requirement, it shall look at its law and propose amendments that ensure that the Court as well as its members are independent and capable of fulfilling their role. Accordingly, the committee shall be in charge of the Court’s re-establishment. The amendments shall be approved by the Legislative Council, and duly issued by the President as quickly as possible.
Furthermore, the committee shall consider the reality of the administrative judiciary and refer the necessary legislative amendments to a two-level judiciary in the Legislative Council for approval and then duly issuance by the President.
There is an urgent national need for the re-building and unification of the Judicial Authority, re-establishment of the Public Prosecution and reconsideration of the formation of the Constitutional Court and its law, and also the administrative judiciary. Assuming that, in this context, the division protracted and the general elections were not held in sight, it is possible for Civil Society Organizations, academic institutions and the national team for the unification of the judiciary to call for the national conference mentioned above and proceed with the re-building and unification processes pursuant to what has been said earlier. This may be achieved on the basis of a wide-spread national consensus document, constituting a form of community reconciliation. Given that the current national need requires an independent judiciary founded on the constitutional principles which were pointed-out at the beginning of this proposal, the said committee should be established away from political, partisan, territorial, regional or tribal divisions. The members of this committee should be independent from any political party and well-known for their honesty, impartiality and professionalism. These persons should be led by a sense of responsibility, manifested through the values and principles of good governance and the rule of law.