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Executive Summary: A Legal Treatise on the Laws by Decree Amending the Law on the Judicial Authority Law and on the Formation of a Transitional High Judicial Council
Dr. Isam Abdeen
29، Jul 2019

Executive Summary

On 15 July 2019, Palestinian President Mahmoud Abbas promulgated two laws by decree, the Law by Decree Amending the Law on the Judicial Authority, and the Law by Decree on the Formation of a Transitional High Judicial Council. Both were published in the Official Gazette the next day, on 16 July 2019. These laws by decree involve an encroachment on the Amended Palestinian Basic Law, as well as on constitutional principles and values, particularly the principles of the rule of law, the separation of powers, and judicial independence. As a result of their adoption, the laws by decree have forced a quarter of judges into retirement. In addition to judges of the Courts of Appeals and the Courts of First Instance, these include the 35 judges of the Palestinian Supreme Court, comprising the Court of Cassation and the High Court of Justice.

Through these laws by decree, the executive authority has encroached upon the judicial authority in what has become the widest interference in the judiciary in the history of the Palestinian Authority. Both enactments are haphazard and were not informed by regulatory impact assessments, which should have examined the potential consequences and implications on the political system, the judicial power, and the rights of litigants before the courts. Developed in closed meetings, they were enacted in light of ongoing conflicts and significant polarisation within the judiciary and beyond. Despite the fact that reform is a right of Palestinian society, the draft laws by decree were not presented for community consultation, reflecting the same long-standing approach and performance of the executive branch of Government.

As of now, the number of laws by decree issued by the President is equivalent to three times the number of laws passed by the Palestinian Legislative Council (PLC) during its first ten-year constitutional term (i.e. 30 years-worth of laws adopted by Parliament). The Gaza-based PLC issued as many laws as those enacted during the entire first parliamentary term of the PLC (i.e. ten years-worth of laws adopted by Parliament). Overall, the total number of laws by decree issued in the West Bank and laws passed in the Gaza Strip is equivalent to 40 years of legislation adopted by Parliament. The absence of the PLC has particularly impacted the legislative consolidation process between the West Bank and the Gaza Strip and has transformed the Palestinian legislative system on a multitude of levels, which will take years to harmonize and address.

The enactment of the Law by Decree Amending the Law on the Judicial Authority has resulted in the abrupt retirement of 52 judges in the West Bank and Gaza Strip, including all 35 judges of the High Court. In addition, more than ten judges are further expected to be forced into retirement in the coming year. Having created a major vacuum in the judicial authority, the law by decree does not provide any criteria or basis to bridge this significant gap. A list including the number and names of judges forced into retirement is annexed to this report.

The Law by Decree on the Formation of a Transitional High Judicial Council has led to the dissolution of the current High Judicial Council as well as all panels of the High Court and of the Courts of Appeals. The law by decree vests the Transitional High Judicial Council, which was established by the President alone, with overbroad powers over the judiciary. In addition to restructuring the judicial authority as a whole, these powers include the authority to dismiss, to force retirement on pension, and to transfer judges to other positions. In other words, the law by decree envisages the possibility of further undue interference with the judiciary.

On this basis, the Transitional High Judicial Council will be in charge of restructuring the next permanent High Judicial Council. It will also develop draft legislation to amend judicial laws. To this end, the President has given the Transitional High Judicial Council, which he has established, a term of one year to exercise these overbroad powers. This period is renewable for another six months based on a recommendation from the Transitional High Judicial Council itself and the President's approval in the form of a presidential decision. The Transitional High Judicial Council was formed through the selection of particular members, rather than on the basis of qualifications. The law by decree does not provide a basis or criteria clarifying the process through which all seven members of the Transitional High Judicial Council were selected.

The adoption of the Laws by Decree Amending the Law on the Judicial Authority and on the Formation of a Transitional High Judicial Council were informed by recommendations of the Justice Sector Development Committee, which the President established under a Presidential Decision, dated 6 September 2017. In its stated positions and papers on the judiciary, Al-Haq has highlighted that the Committee's recommendations are contrary to the Palestinian Basic Law and constitutional principles and values. The Committee has turned a blind eye to the dire situation of the judiciary and justice sector in the Gaza Strip. It also failed to address the role and functioning of the Supreme Constitutional Court (SCC), which had violated the Basic Law. The Presidential Decision on the formation of the SCC was also at odds with the Law on the Supreme Constitutional Court itself. was further affected by a conflict of interests. As a result, Al-Haq has concluded that the Committee's recommendations do not provide a valid basis for judicial reform.

The laws by decree recently promulgated by the President violate relevant court decisions, in that they never consulted the High Judicial Council before both laws by decree were adopted, as confirmed by the Chairman of the dissolved High Judicial Council. This is contrary to the provisions of the Basic Law, which requires draft laws governing any matter relating to the judicial authority, including the Public Prosecution, to be referred to the High Judicial Council for consultation before its adoption. As such, the laws by decree fail to comply with the judgement rendered in 2005 by the HighCourt, acting in its constitutional capacity, in which the Court rule in favour of the annulment of the Law on the Judicial Authority No. 15 of 2005, because at the time, and contrary to the Basic Law, the High Judicial Council had not been consulted before it was enacted and published. On Sunday, 27 November 2005, the High Court ruled that the law was unconstitutional and had no legal effect. The recently enacted laws by decree also disregard the decision rendered by the High Court of Justice on 16 September 2018, suspending the operations of the national Justice Sector Development Committee, as cited in both enactments, implying a persistent disrespect of court judgements and decisions.

The constitutional legislature demonstrates a clear and decisive will in relation to the lack of compliance with court judgements and decisions, as emphasised in Article 106 of the Amended Basic Law, which provides that "[j]udicial rulings shall be implemented. Refraining from or obstructing the implementation of a judicial ruling in any manner whatsoever shall be considered a crime carrying a penalty of imprisonment or dismissal from position if the accused individual is a public official or assigned to public service. The aggrieved party may file a case directly to the competent court and the National Authority shall guarantee a fair remedy for him." Can reform therefore take place through violations of the Basic Law and court decisions, in the absence of community oversight, in light of the continuing deterioration in the political system, and the monopoly of the executive power?

Together with all panels of the High Court and Courts of Appeals, the High Judicial Council was disbanded seven months after the SCC decided to dissolve the PLC by means of a "declaratory judgement" it rendered on Wednesday, 12 December 2018. As a result, with the dissolution of both the legislature and the judiciary, the principle of the separation of powers is no longer conceivable within the Palestinian political system, which is already suffering a continued deterioration.

Should the executive authority now target civil society through laws by decree, then there will be nothing left of the Palestinian political system with the exception of the executive authority itself, who would be in control of all public powers and community oversight. Should this occur, then reform would transform from an inherent right of Palestinian society into a power in the hands of the executive and the President.

Throughout the history of the Palestinian Authority, this is the first time the Law on the Judicial Authority, as referred to under the Basic Law, is targeted by a law by decree. Of all the laws approved by the PLC, the Law on the Judicial Authority is one of the most advanced, protecting and maintaining the independence of the judiciary and of judges. Al-Haq has repeatedly stressed that the structural dysfunction of the judicial authority has nothing to do with the law itself. Rather, it is the consequence of violations of the principles of the rule law, the separation of powers, and judicial independence, in addition to the continued lack of will, within the political system, to carry out reforms. This is due to the absence of elections and of a peaceful and democratic transition of power, as well as the failure to fulfil the right of citizens, particularly the youth, to freely choose their representatives in freely organised elections.

The Amended Palestinian Basic Law, which reflects the constitutional legislator's will, confirms not only that the amendments to the Law on the Judicial Authority are unconstitutional, but that they can also lead to further deterioration in the political system and in the exercise of judicial functions. In no way can these amendments affect the positions of current judges, who have been removed from judicial office as a result. Informed by relevant legal and constitutional references, this report clearly shows that retirement does not apply to those judges who were appointed before the recently adopted and published laws by decree on the judiciary. Instead, these laws by decree can only be enforced on those judges who will be appointed and forced into retirement following their adoption.

In the judiciary and other sectors, reform is an indivisible whole and should cover both the West Bank and the Gaza Strip. Individual rights and justice are also indivisible. It is morally, nationally, and constitutionally impermissible that any Palestinian is excluded and deprived of his or her natural right to full justice and engagement in the reform process. This applies to all Palestinians in the Gaza Strip, which has become uninhabitable according to United Nations reports, Palestinians in the West Bank, and Palestinians anywhere else. This will is reflected in Article 9 of the Palestinian Basic Law, which reaffirmed that "Palestinians shall be equal before the law and the judiciary, without discrimination." Whatever its form and geographical scope, discrimination undermines the will of the constitutional legislator and constitutional values.

As approved by the Palestinian legislature, the Law on the Judicial Authority No. 1 of 2002 has great potential for reforming the judiciary and the justice system once there is a will for reform. In addition to pillars of good governance, the provisions of both the Law on the Judicial Authority and of the Basic Law must be respected and observed. As a first step, effective institutional structure and performance need to be consolidated though a High Judicial Council that is established by the force of law, rather than by the will of the executive. In addition, the principle of the rule of law must be upheld, namely, through respect for the Basic Law and the Law on the Judicial Authority, which lay out the composition and jurisdiction of the High Judicial Council. There is also a need for an effective community role and coordinated collective action to achieve this goal.

There is an urgent need to carry out widespread community consultations, throughout all Palestinian Governorates, in order to restore the political system and achieve judicial reform. To this avail, all efforts must unite to bring an end to the continued state of deterioration in the judiciary and in the justice system as a whole. Serious and effective reforms must be launched. These must be capable of putting the force of the Basic Law and of the Law on the Judicial Authority to the test in the reform process, which must be based on respect for the principles of the rule of law, the separation of powers, and judicial independence, in addition to the requirements of good governance. In addition, it must be accompanied by a serious effort, and continued and coordinated collective action, to hold general, comprehensive, democratic, and transparent national elections, as soon as practicable. Elections must be held in a democratic process that ensures respect for public rights and freedoms. Finally, reform must entail an end to the continued deterioration in the entire Palestinian political system and to the unprecedented monopoly of public powers and in the decision-making process, while it requires a democratic transition, respect for human dignity, and the protection and maintenance of justice. This is a natural and constitutional right of the Palestinian people, who are the source of all public powers.

The full publication, issued by Al-Haq in Arabic, on 24 July 2019, is available here.

The publication will soon be available in English.