Ref: 95/2007
Date: 16 August 2007
Time: 12:00 GMT
Acting Justice Minister Unauthorized to Dismiss the Attorney-General
PCHR strongly condemns the decision issued by Dr. Yusef El-Mansi, the acting Justice Minister in the dismissed Palestinian Government, ordering the dismissal of the Attorney-General (AG) under the claim that the AG’s legal appointment procedures were not completed. PCHR affirms that the AG worked and continues to work according to the law; and that no Justice Minister has authority over the AG. The Minister’s decision is a serious infringement on the judicial system, and hinders its work.
The acting Minister issued his decision on 14 August 2007. It stated that the appointment procedures of the AG were not completed in accordance with the law since the PLC did not approve the appointment prior to the AG’s swearing in. The Minister relied on Article 1/107 of the Amended Basic Law for the Year 2003 published in Issue 71 of the Palestinian Legal Journal. The Article stipulates that if the Higher Judicial Council nominates the AG, the PLC must give its approval before the AG is sworn in. In light of this, the acting Minister informed the AG, Mr. Ahmad El-Moghani, that his “status as AG has not been established;” and that he should stop his work as an AG till the completion of legal procedures to establish this status upon him.
One day prior to the acting Minister’s decision, the Office of Legislation in the Ministry of Justice in Gaza issued issue 71 of the Palestinian Legal Journal, the official legal journal of the PNA. The issue contained a correction in the publication of Article 1/107 of the Amended Basic Law for the Year 2003, originally published in Unique Edition No. 2 dated 19 March 2003. The Article tests was “The AG is appointed by the President of the PNA based on a nomination by the Higher Judicial Council.” The alleged correction of the text is “The AG is appointed by the President of the PNA based on a nomination by the Higher Judicial Council and approval of the PLC.”
In light of this grave decision that is a serious infringement on the judicial system, PCHR clarifies that:
1. Article 1/107 of the Amended Basic Law of the Year 2003 issued in Unique Edition No. 2 dated 19 March 2003 of the Palestinian Legal Journal is correct; and that there is no mistake in the text. The AG is appointed by the President based on a nomination by the Higher Judicial Council without PLC approval. 2. The PLC approval of the appointment of the AG was discussed during deliberations on the Basic Law in 2002 (before the Amended Basic Law) that was passed on 29 May 2002. The PLC approval was removed from the Basic Law by President Arafat before the Basic Law was passed. If the PLC objected to this omission, it would have used its power to review the Law and pass it with a two-third majority to overrule the President’s omission. 3. The PLC also approved Article 65 of the Judicial Authority Law No. 15 of the Year 2005 that states, “the AG is appointed by the President of the PNA based on a nomination by the Minister of Justice and approval of the PLC.”
4. PCHR submitted a constitutional appeal (No. 4/205) against the Judicial Authority Law No. 15 of the Year 2005 to the Constitutional Court since this law violated the Amended Basic Law of the Year 2003. Article 65 of the Judicial Authority Law violated Article 107 of the Amended Basic Law.
5. The Constitutional Court responded to PCHR’s appeal by stating that the Judicial Authority Law No. 15 of the Year 2005 is unconstitutional. 6. The Constitutional Court’s decision in this matter was a precedent; and the acceptance of the appeal against the law in question due to its violation of Article 107 of the Amended Basic Law confirms that Article 107 is mistake-free.
7. One of the Constitutional Court’s justification for its decision in this matter was a letter dated 10 October 2005 from President Abbas to the PLC Speaker Rawhi Fattouh indicating that the Council must amend Article 107 of the Amended Basic Law; otherwise, Article 65 of the Judicial Authority Law would be a violation of the Amended Basic Law.
8. Based on the Constitutional Court’s decision, the effective Judicial Authority Law is Law No. 1 of the Year 2002, which states in Article 62 that, “The AG is appointed by the President of the PNA based on a nomination by the Higher Judicial Council.”
9. AG Ahmad El-Moghani was appointed on 18 September 2005 in line with legal requirements in the form of a Presidential Decree based on a nomination by the Higher Judicial Council. At the time, the PLC did not object to the appointment, and did not raise the point that there was a mistake in Article 1/107 of the Amended Basic Law published in the Palestinian Legal Journal.
10. PCHR warns against any attempt to drag the AG’s office and the judicial system in the quagmire of the current power struggle. Since the outbreak of the bloody clashes in Gaza, PCHR persisted in calling upon the AG and his assistants to resume work in the Gaza Strip in order to uphold the interests of the civilian population.
11. PCHR calls upon the acting Justice Minister to rescind his illegal decision and to stop interfering in the affairs of the AG’s office; and affirms that this decision is a serious infringement that obstructs justice in an unprecedented way.
“END”
