Judicial Independence will not be achieved Through Laws by Decree by the Head of the Executive Authority

 

Ref: 5/2021

Date: 13 January 2021

Time: 08:00 GMT

 

The Palestinian President issued law by decree no. (40/2020) to amend the Palestinian Judicial Authority Law No.1/2002 on 30 December 2020.  This law is part of a series of measures and decisions taken by the Palestinian President allegedly for judicial reform, including the dissolution of the High Judicial Council based on a law by decree issued on 15 July 2019 and designation of a the Transnational Council in addition to making amendments to the Judicial Authority Law and dismissal of several judges.

 

The Palestinian Centre for Human Rights (PCHR) emphasizes that judicial reform starts by guaranteeing its independence from the executive authority. PCHR also stresses that the Palestinian President’s interference into the Judicial authority’s affairs under the pretext of reform jeopardizes its independence and undermines public confidence in it, especially within the current complex political climate, where everyone aspires for the internal division to end and towards holding the long overdue presidential and legislative elections. This position was clearly declared by the Palestinian human rights organizations in a position paper issued in August 2020[1], especially that the current deterioration of the judiciary was primarily caused by the executive authority’s overreach and meddling into the judicial authority for many years.

 

This law, which includes 33 articles amending most of the provisions codified in the original law, has peculiar timing as it comes at time where a Presidential decree setting a date for presidential and legislative elections is expected.  This raises many questions about the real aim of rushing such laws at this particular time rather than leaving legislative and judicial reforms to the bodies to be elected by the Palestinian people. It is also noteworthy that the 2002 Judicial Authority Law is considered by most legal experts as one of the best laws in the region; therefore, it contravenes the requirements set forth by Article 43 of the Palestinian Basic Law, which restricts the president’s issuance of laws by decree to “ cases of necessity that cannot be delayed.”

 

PCHR reminds here of the Supreme Court ruling to overturn the 2005 Judicial Authority Law No. 15, which revoked the 2002 Judicial Authority Law. The 2005 law was rejected by the Judicial Authority, who reiterated that the existing law was adequate and did not need alteration or change. At the time, PCHR succeeded in overthrowing the 2005 Law for its contradiction with Article 100 of the Palestinian Basic Law of 2002, which stipulates that “The High Judicial Council shall be consulted about draft laws relating to the Judicial Authority.” This precedent proves that PCHR’s position on the lack of necessity to change the Judicial Authority Law is shared with the Judicial Authority itself. This poses a question on the ability of the Executive Authority, which itself need radical reform through Presidential elections, to reform the Judicial Authority under the presiding Palestinian division and political bickering.

 

Additionally, PCHR emphasizes that the exclusion of civil society organizations, including the Palestinian Bar Association and human rights organizations, in discussions on this important and highly-sensitive law before its endorsement is unacceptable, especially that current institutions lack legitimacy as due elections have not been held for more than a decade.

 

PCHR stresses here its position on the President’s use of law by decree powers and the need to limit them to issues of extreme necessity, especially that this amendment was in conjunction with several other laws pertaining to the Judicial Authority, i.e. Law by Decree No. 39 on the formation of regular courts and law by decree no. 41 on the formation of administrative courts. PCHR demands the Palestinian President leave the issue of reforming the Palestinian Judiciary to elected authorities expected to take hold in future elections.

 

Hereby, PCHR calls upon judges and all legal stakeholders to work jointly to challenge any attempts to manipulate with the independency and prominence of the Palestinian judiciary.

 

 

[1] Position Paper by Human Rights Organizations’ on the Independence of the Palestinian Judicial System https://www.pchrgaza.org/en/position-paper-by-human-rights-organisations-on-the-independence-of-the-palestinian-judicial-system/