Ref: 66/2007

Date: 22 July 2007

Time: 12:30 GMT

PCHR Calls for Saving the Civilian Judicial System in the Gaza Strip before Its Collapse

PCHR is extremely concerned over the deterioration in the Judicial Authority in the Gaza Strip as a result of pushing the judiciary in the power struggle between Fatah and Hamas. The Centre renews its calls to all concerned parties to refrain from dragging the judiciary into this struggle, to refrain from infringing upon the judiciary, and to take serious steps to ensure the immediate resumption of the functioning of the civilian judicial system. The Centre strongly rejects any action towards establishing alternative judicial bodies in the Gaza Strip.

The most recent developments pertaining to the status of the judiciary, the Executive Force spokesman, Islam Shehwan, announced to Maan News Agency on Saturday, 21 July 2007, the formation of a special committee to evaluate the status of civilian prisoners in Gaza Central Prison. On Sunday, 22 July 2007, PCHR’s lawyers met with the Committee Chair, Amin Wafi, who is a former Major in the Palestinian Military Court. Wafi informed the Center’s lawyers of the decision issued by the commander of the Executive Force on 7 July 2007 to establish the committee in order to assess the situation of each civilian detainee or prisoner, and to submit recommendations to the commander of the Executive Force. The decision was justified by the absence of the judiciary from fulfilling its duties, and by the general situation.

The formation of this committee is the latest in a series of developments over the past 5 weeks that have resulted in paralyzing the judiciary in the Gaza Strip. The main reason behind this state of paralysis is the politicization of the judiciary in the current power struggle between Fatah and Hamas. The Centre has warned repeatedly of the dangers of politicizing the judiciary (refer to PCHR’s press release dated 23 June 2007). The most notable developments pertaining to the judiciary after 15 June 2007 were:

–         Decision of the Director General of the Police force to suspend the work of the civilian police force in the Gaza Strip. The decision effectively stopped key functions of law-enforcement such as organizing traffic, pursuit of criminals, and administration of prisons and detention centers.

–         Suspension of the work of the Attorney-General, who is charged with public cases. Under the Amended Palestinian Basic Law, the Attorney-General is responsible for public prosecution in the name of the Arab, Palestinian People. He is the party responsible for investigating crimes, filing criminal cases, and prosecuting criminals.

–         Decision of the President of the Higher Judicial Council on 2 July 2007 directed to judges and workers in the directorates implementing judicial decisions to suspend the implementation of all judicial decisions requiring police enforcement due to “the general situation in the Gaza Strip and due to the lack of a police force to assist and safeguard the implementation of judicial decisions.” Thus, the President of the Council ordered the non-implementation of decisions of the Palestinian Civilian Judicial System.

–         Presidential Decree dated 7 July 2007 regarding the powers of the Military Courts during a state of emergency. The decree removed the powers of the Civilian Judicial System in favor of the Military Courts (refer to PCHR’s press release dated 10 July 2007).

–         Request of the President of the Higher Judicial Council on 15 July 2007 directed to judges and chief judges of civilian courts to implement the decision of the Emergency Cabinet dated 25 June 2007, exempting residents of the Gaza Strip of fees for services rendered by the Palestinian Authority. It is noted that this is an unjustified request in light of the fact that the Emergency Cabinet decision is illegal as it conflicts with the Basic Law by granting government a power it does not possess. It is noted that the decision in question stated in its first article that it “refers” to the decision of the President of the Palestinian Authority to suspend Article 88 of the Amended Basic Law, which states that imposing, canceling, amending, or exempting taxes is conducted only according to the law.

These developments have affected the work of the judiciary, resulting in its near paralysis over the past 5 weeks. The judiciary only reviews civilian cases, without any enforcement mechanism, due to the decision of the of the President of the Higher Judicial Council to suspend all decisions requiring police enforcement. All cases in which the Palestinian Authority, represented by the Attorney-General, is a party are completely suspended due to the stoppage of the work of the Attorney-General and his assistants. This includes criminal cases and cases before the High Court that have the Palestinian Authority as a party.

In light of these developments, PCHR:

–         Views the recent decisions of the Director General of the Police, the Attorney-General, and the Chief Justice as unjustified decisions that politicize the judiciary and contribute to its destruction instead of preserving its independence and authority.

–         Calls for preserving the independence of the judiciary and for refraining from politicizing the judicial system regardless of the ongoing power struggle. The Centre calls for establishing the rule of law that guarantees protection of civilians’ safety and interests. The Centre affirms that the alternative to the rule of law is the rule of the jungle.

–         Calls upon Hamas and the dismissed government in the Gaza Strip to preserve the judiciary and refrain from infringing upon it. Despite understanding the need for forming an consultative committee to evaluate the cases of prisoners, the Centre calls from refraining from establishing alternative judicial bodies.

–         Renews the call to the Attorney-General, charged with public prosecution, to fulfill his responsibilities and return to work in the Gaza Strip immediately regardless of the political situation. The Centre reminds that the Attorney-General’s post is not a political post, and must not be dragged into the ongoing power struggle.

–         Renews the call for returning the civilian police to work in the Gaza Strip as a law-enforcement body.

–         Condemns the request of the of the President of the Higher Judicial Council to judges and chief judges to abide by the tax exemption decision of the Emergency Government, which is an illegal decision; and stresses:

o       Imposing, canceling, amending, or exempting taxes is conducted only through a law according to Article 88 of the Amended Basic Law, and not by a governmental decision referring to a Presidential decree suspending an article of the Basic Law.

o       Judicial and legal fees serve to establish the seriousness of court cases, as well as contributing to state coffers. Thus, these fees reduce the number of irrelevant or weak cases.

–         Condemns the decision of the President of the Higher Judicial Council to suspend all judicial decisions requiring police enforcement; which in effect suspends the interests of thousands of civilians whose cases are adjucated by the judiciary.