The Latest Presidential Decree Appointing the Palestinian Attorney General is Unconstitutional
Ref.: 143 2002
Recently, there have been many internal and external calls demanding genuine measures aimed at reforming the Palestinian Authority and its institutions. At the forefront of these necessary reforms is the strengthening of the foundations of a legitimate democracy. The latest steps towards reform have been very disappointing and have not achieved any significant progress. The latest presidential decree, appointing the new Palestinian Attorney General, is a serious setback to the efforts of establishing an independent Palestinian judiciary. The decree comes after a series of unconstitutional steps that blatantly disregard the calls for the reform of Palestinian Authority institutions. Furthermore, the decree completely contradicts the Basic Law and the Law of Judicial Authority.
On Thursday 26th December, the Palestinian President issued a decree appointing Khalid al-Qidra as the new Attorney-General. This is the second time al-Qidra has been made Attorney-General. He was first appointed when the Palestinian Authority was established in 1994 and he remained in the position until his dismissal in 1996. No reasons were given for this dismissal. From November 1999, he has been Attorney-General for the State Security Courts’ Prosecution Office. The latest presidential decree acts to merge the State Security Prosecution Office with the general Civilian Prosecution Office.
In principle, some might consider the merging of the two offices as one more step towards reform. However, what is actually recommended and required is the total abolishment of the State Security Prosecution Office and their courts (which were set up in February 1995). The appointment of al-Qidra as Attorney-General of the State Security Courts, in November 1999, by the Palestinian Authority, was subject to widespread criticism. PCHR have always asserted that the Courts are a serious setback to the authority of the Civil Prosecution Office, usurping its power and duties and providing a real obstacle to achieving the rule of law.
This latest presidential decree, appointing the new Attorney-General, is unlawful and contradicts the Basic Law, which was passed on 7th July 2002, and the law of Judicial Authority, which was passed on the 14th May 2002. This means that it severely questions the independence of the Palestinian Civilian Judicial Authority, which in terms undermines the separation of powers within the Palestinian Authority.
In the light of this new development, PCHR asserts that;
1) The decree to appoint the new Attorney-General is unconstitutional as al-Qidra was not nominated by the High Judicial Council. The Council also stated that the decree breaches article 98 of the Basic law and article 63 of the Judicial Authority Law. Accordingly the appointment is unlawful and goes against the letter and the spirit of both laws.
2) The High Judicial Council itself may go against the Judicial Authority Law of 2002 (please refer to the PCHR press release of 7 July 2002)
3) The State Security Courts still exist and function although they breach both the Basic Law and the Judicial Authority Law
PCHR, in the light of this, calls upon the Palestinian Authority to be bound by the spirit and letter of the laws that it itself passed. Its steps should reflect a real intention to implement reforms which guarantee the separation of powers and the rule of law. Moves towards reform should not be purely cosmetic. Instead, they should maintain the fundamental aim of preventing the executive authority from impinging on the judicial and legislative authorities.
PCHR also calls upon the Legislative Council to monitor and follow, promptly and effectively, the manner in which the laws are passed and implemented. We call upon the Palestinian Authority to do the following;
1) to revise the presidential decree of the 28th June 2002 and to form a new High Judicial Council according to the spirit and letter of the Judicial Authority Law.
2) to revise the new presidential decree and appoint an Attorney-general upon the recommendation of the High Judicial Council, after it has been reformed, according to the spirit and letter of the basic law and the Judicial Authority Law.
3) to abolish the State Security Courts and to transfer their powers to the State Civilian Judiciary.
4) to abolish the Sate Security Courts’ Prosecution Office and not to merge it with the Civilian Prosecution Office.
A Presidential Decree against law (7 July 2002 )