Al-Haq’s Comments on the Justice Sector Development Committee’s Report and Draft Law by Decree Amending the Judicial Authority Law

Thursday, 03 January 2019 14:13 By: Dr. Isam Abdeen
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Al-Haq’s Comments on the Justice Sector Development Committee’s Report and Draft Law by Decree Amending the Judicial Authority Law

Al-Haq follows with concern recent developments in the justice sector. A Draft Law by Decree Amending the Judicial Authority Law No. 1 of 2002 has been in circulation. A report issued by the Justice Sector Development Committee was also published on 28 November 2018 in conjunction with the circulated Draft Law by Decree. Both developments have a bearing on judicial independence and the justice sector.

A focus should be paid on the contents of the Justice Sector Development Committee's report (hereinafter the Committee's report), which was kept secret when it was presented to the President in September 2018 regardless of civil society organisations' demand to access and comment on it before its submission. Attention needs to be also paid on the contents of the recently circulated Draft Law by Decree Amending the Judicial Authority Law (hereinafter the Draft Law by Decree) and its interrelation with the Report, taking into account the current approach to discussing and approving laws by decrees without community discussions. Cases in point include the Law by Decree on Cybercrimes, Law by Decree on the High Criminal Court, Law by Decree Amending the Law on the Supreme Constitutional Court, and Law by Decree Amending the Law on Charitable Associations and Non-governmental Organisations. Of particular concern, the Draft Law by Decree Amending the Judicial Authority Law would follow in the footsteps of the aforementioned laws by decrees. It could be published in the Official Gazette and enter into force without qualifying comments or positions.

Al-Haq is of the view that the Committee's report and Draft Law by Decree vest the executive with overbroad and unconstitutional powers over the judiciary and administration of justice. Both involve a clear conflict of interests, a deviation from legislative requirements, and cause a further deterioration in the judiciary and justice system.

Al-Haq confirms that deficiencies in the judiciary and justice system are structural and manmade. These flaws are not intrinsic in the law itself. The Judicial Authority Law is one of the most advanced laws, which protect judicial independence. The continued deterioration of judicial practice is attributed to violations of the principle of the rule of law and separation of powers and the Judicial Authority Law. In addition to an absent will for reform, the executive and its agencies have encroached on the Judicial Authority and justice system. Successive boards of the High Judicial Council (HJC) (i.e. the judicial administrations) have collaborated with the executive to undermine independence of both the Judicial Authority and the judges. Bearing witness to this is the fact that, since the Palestinian Authority was established, all three HJC boards have been formed in contravention of the Judicial Authority Law. Successive presiding judges of the High Court and HJC chairs have been appointed in a manner that also violated the Judicial Authority Law. Contrary to the said Law, High Court judges have been referred to investigation for exercising their right to free expression and criticising the deteriorating situation of the judicial system. Also in violation of the Law, HJC chairs submitted resignations to the executive even before exercising their functions. Judicial appointments and transferences contradict the Law. Many decisions issued by the judiciary have not been implemented by the executive and its agencies, and the list goes on. This means that the real problem lies with disrespect of the Judicial Authority Law and principle of the rule of law, not with the Judicial Authority Law itself. Recommendations of the Justice Sector Development Committee and the Draft Law by Decree Amending the Judicial Authority Law give the executive broad influence over the judiciary and justice sector. These unlawfully distort the Judicial Authority Law and lead to further deterioration and disintegration of the judiciary and justice system.

Against this background, Al-Haq calls for a serious community dialogue to examine ways to halt the continued deterioration of the judiciary and justice apparatus, discuss reform mechanisms and requirements, and draw lessons from reform processes that have failed over the past years. Below are key comments on the interconnected and concurrent report of the Justice Sector Development Committee and Draft Law by Decree Amending the Judicial Authority Law. These comments are ensued by relevant conclusions.

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