A Statement issued by the National Coalition for Judicial Reform and Protection and the Independent Commission for Human Rights- ICHR regarding amending the Judicial Authority Law
We at the National Coalition for Judicial Reform and Protection (the Coalition), and the Independent Commission for Human Rights ICHR were surprised to learn of the recent issuance of three decrees concerning the organization and restructuring of the judiciary (i.e. Law No. 40 of 2020 amending the Judicial Authority Law No. 1 of 2002, Decree Law No. 39 of 2020 regarding the formation of regular courts, and Decree Law No. 41 of 2020 regarding Administrative Courts). All of which were published on Monday, 11/01/2020, in the special edition of the Palestinian Gazette “Waqi” Addition No. 22, coming into effect as of the date of publication in the official gazette.
However, such served to deny civil society and other relevant stakeholders (i.e. the Bar Association) the opportunity to discuss these decrees before their official publication in the Gazette and coming into effect. As historically been the case with the issuance of decree laws in the continued absence of the Legislative Council.
We, at the Coalition and ICHR, consider these decrees as undermining of effort to reform the judiciary, subordinating it to the executive authority. We reiterate our position of rejecting the violations made to the Judicial Authority Law No. 1 of 2002 through the issuance of new legislations/decrees (or any other changes) impacting the organization of the judiciary’s affairs. Letters were explicitly sent to this affect by the Coalition to the President and Head of the Transitional Higher Judicial Council, through which we called for not amending the Judicial Authority Law or issuing new laws to regulate the affairs of the judiciary. The last of these calls was on December 31, 2020, where we at the Coalition addressed the President (in a letter), reminding him of our rejection of the Judicial Authority Law’s amendment.
The decree law amending the Judicial Authority Law and the new laws regarding the formation of statutory and administrative courts contained legislative texts that fundamentally affect the independence of individual judges. They also stripped judges of the most important guarantees of their independence, especially its undermining of the principle of immunity from dismissal, which the 2003 amended Basic Law and its amendments provided for. These decree laws also fundamentally affected Judicial Authority Law No. 1 of 2002, and the ability of judges to carry out their constitutional responsibilities in protecting human rights and safeguarding their freedoms. The judiciary is last resort of individuals in challenging public authorities, and thus their independence is crucial. Independence is safeguarded when guarantees are put in place that protect them from dismissal without legitimate legal justifications and in accordance with clear procedural and objective guarantees; guarantees the decree law amending the Judicial Authority Law has undermined. Rather the decree law has allowed for the dismissal of judges and their referral to retirement or furlough, under procedures that do not provide sufficient guarantees against the abuse of power by the judicial councils.
Additionally, these decree laws included provisions that carry additional financial burdens to the national budget paid from taxpayers' money; a needless expense in light of difficult current economic conditions. It also establishes an administrative judiciary that is not independent and subordinate to the executive authority, in a manner that threatens the rights and freedoms of individuals. This is evident in the monopoly of the President of the State, as evident in the appointment of the Head and Deputy Head of the High Administrative Court and its judges. This, in addition to the President’s monopoly of the appointment of the Deputy Head of the High Administrative Court and its judges. Such is reminiscent of the manner in which the High Constitutional Court was established four years ago, which dually raised serious concerns over its independence.
We are concerned, at the Coalition, that the issuance of these decree laws at this particular time (with discussions around imminent general elections being held for the first time in fifteen years) will constitute a real obstruction to the Palestinian national dialogue. Additionally, this can disturb the positive atmosphere around this context..
Based on the aforementioned (and in respect to the principles of the rule of law and separation of powers, upon which the Palestinian constitutional system is based, in accordance with the provisions of the Basic Law, in confirmation of the inherent competence of the Legislative Council in approving laws that regulate the state’s authorities, including the Judicial Authority, and in preparation for general elections) we demand for the following:
- The immediate cancellation of the three decree laws and halt to all their effects, and that any amendment to the Judicial Authority Law and/or the issuance of any new laws concerned with organizing the affairs of the judiciary is within the competence of the elected Legislative Council and in accordance with the procedures established in the Basic Law.
- The formation of a permanent High Judicial Council, in accordance with the provisions of the Judicial Authority Law No. 1 of 2002 in effect, provided that it does not include any member from the Transitional High Judicial Council (with the exception of the provisions of the Judicial Authority Law of 2002 stipulating their membership in the Council based on their functional job capacity).
- We call on the political factions, forces and the Bar Association to take a clear and explicit stance that rejects these decree laws and to provide the needed supporting conditions in holding general elections.
We at the Coalition, while stressing the need to implement these demands; express our disappointment over the position of the Head of the Transitional High Judicial Council regarding the decree law amending the Judicial Authority Law and other decree laws.