Violation of Shari'a Court Procedures

2017-01-23

Gaza

Gaza / Core Program 2016-2019


Head of Higher Shari’a Court Council/ Head of Supreme Shari’a Court,
His Eminence Sheikh Dr. Hassan Al-Joujou,


Subject: Violation of Shari’a Court Procedures


MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession received a complaint in writing, lodged by Majdi Mohammad Tawfiq Qwaider as a representative of his son Ahmad Qwaider, case number 1185/2016 pending before Judge Bilal Abu-Khater in Gaza’s Shari’a Court.


In his complaint, submitted to MUSAWA in writing on 16/11/2016, the complainant states that during his statement in the aforementioned case the judge did not record all of his statement, and he added statements which were not said by the complainant during the trial. After reading the trial’s official report, the complainant raised the issue with the judge, who in turn crossed-out some sentences from the official report outside the session. Not only this, the judge also overlooked the claim of fraud in the writ of summons, on which the case is founded.


The complainant also mentions that he lodged a complaint to the judicial police, which is competent to issue summons. The summons included the signature of the summoner, Ahmad Abdul A’al. The judicial police informed him that the paper in his possession does not bear the actual signature of the summoner, and that the signatures belong to fake names: Mohammad Rajab Al-Jayar and Mahmoud Khalil Al-Yaziji. Furthermore, the complainant submitted a complaint to the Ministry of Local Government to justify the stamp of Jaffa’s “Mukhtar”, Mahmoud Youssef Hashem Al-Nazli, on the summons. This complaint has not been responded-to yet.


The complainant added that the judge was surprised by his presence at the hearing, and he threatened him more than once that a final judgment would be rendered. According to Article (64) of the Shari’a Court Procedures Law No. 12 of 1965, a claim of fraud shall suspend any further pursuit of the action. This is in addition to Article (50) which clearly states that claims of fraud are viable only official papers, and Article (45) which defines an official paper as any document issued by a public employee in accordance with his sphere of competence. This definition is in line with Article (9) of the Law of Evidence in Civil and Commercial Matters No. 4 of 2001, which defines an official instrument as “a document made out by a public official or a person deemed as such and authorized to draw up official instruments in accordance with legal formalities”.


Furthermore, Article (73) of the Shari’a Court Procedures Law explains what the court’s duty is in cases of fraud, and it gives the court the authority to cancel it and proceed with the action or to order an investigation to be conducted regarding the fraud. Article (78) of the same law adds that it is in the court’s power to annul any instrument which is proved to be forged even if no lawsuit was filed regarding the forging.


We, MUSAWA, ask your Excellency to activate your monitoring role over Shari’a courts to ensure the impartiality of judges. We also ask for the examination of the contents of the complaint, while providing the complainant with fair trial guarantees by recording his statement as appropriate without any omissions or additions; the investigation of the claim of fraud in the official instrument and the referral of the file to the Public Prosecution so that they take the necessary legal action to put the proceedings on hold until a legal decision is taken concerning the claim of fraud; and the publishing of findings on the matter. MUSAWA hopes that this memo would be handled seriously and duly responded-to.

 

With all due respect,


Issued on 23/01/2017      

 MUSAWA

 

 
Copy to:
-    Ministry of Local Government
-    Supreme Shari’a Court
-    Public Prosecutor
-    Head of Judicial Police

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