The Rule of Law vs. The Law of the Jungle: Independence of Palestinian Judiciary in Jeopardy
Deep concerns have arisen over the independence of the Palestinian judiciary after waves of interferences with its work and structure, initiated by the executive authority in the Palestinian Authority (PA), aimed at exercising further control over the judicial system. The Palestinian Center for Human Rights (PCHR) condemns all attempts to undermine the independence of the judicial authority.
The role and position of the judiciary ought to be treated with caution and vigilance, due to its critical importance and role in independently guarding public security and stability of society. In support of the independence and unique role of the judiciary, PCHR believes that the judiciary is now more than ever in need of support from civil society to counter attempts to interfere by the executive authority.
The overthrowing of Chief Justice, Chancellor Sami Sarsour, is an indicator of the critical threat posed to the judiciary, and a clear indication that separation of powers no longer exists in PA. This incident has revealed the full control of the executive authority over the higher echelons of the judicial authority. Therefore, the Palestinian President dominates not only the executive and legislative powers, while issuing ordinances under the pretext of the absence of the Palestinian Legislative Council (PLC), but he also controls the judiciary.
One month before being overthrown, Chancellor Sarsour received verbal criticism from a prominent Fatah leader, Tawfiq al-Tairawi, regarding his performance. A few weeks later it was announced that the Palestinian President had approved the resignation of Mr. Sarsour as Chief Justice.
In a shocking testimony to The Independent Commission for Human Rights (ICHR), Mr. Sarsour revealed that he signed his resignation before taking the oath for his appointment on 20 January 2016.
PCHR believes that Mr. Sarsour’s confession and his resignation prior to assuming his duty in a senior position within the judicial authority raises significant concerns. This incident raises legitimate questions regarding other interferences that have taken or are to take place due to actions by influential persons in the executive authority, with the aim to seize control over the judiciary.
“We used to talk about the impact of the internal Palestinian split on the judicial authority and raise doubts about its independence… now it is no longer mere doubts and it cannot be tolerated after the scandal of the Chief Justice’s resignation … We stress again the judiciary is a red line and that scandal should not go without accountability… We further underscore that if the judiciary is paralyzed, we should support it to rise again”, says Raji Sourani, Director of PCHR.
The manner in which the Chief Justice was deposed raises critical concerns with PCHR, as it may pave the way for more control over the judicial authority by deterring all those in the judiciary who reject the executive authority’s interference.
In the same context, the Palestinian President’s decision on 03 April 2016 to form the first Palestinian Constitutional Court raises concerns about the aim of forming such court at a time in which there is an internal split and disputes within the Fatah movement.
PCHR considers the formation of the court to be part of a systematic policy to restrict the role of the judiciary and seize control not only over enacting of the laws and but also on their interpretation. PCHR asserts that national reconciliation is a prerequisite for the formation of a constitutional court that protects the rule of law.
The interference in the judicial structure by the executive authority has a significant negative impact on the credibility of the judicial system and its role in settling disputes and achieving stability for all parties of conflicts.
This was obvious after an advisory opinion issued by the Palestinian Constitutional Court on 06 November 2016, which gave the President the right to lift the immunity of PLC members. The debate raised over that decision reflects how fragile the judicial system’s credibility has become in the eyes of the Palestinian community, bearing in mind the above-mentioned incident.
PCHR believes that PLC members should adhere to the law and their immunity should not hinder the combatting of corruption, and serving justice in general. However, the PLC Executive Regulations confine the power to lift the immunity of PLC members to the PLC itself, as stated in its articles 95 and 96.
There is a state of limbo concerning lifting the immunity of PLC members as the PLC deliberately acted obstructively in the wake of the Palestinian internal division. However, PCHR believes that giving the President the exclusive right to lift immunity through use of the court in order to bridge that gap is raising significant concerns.
PCHR believes that the court should have maintained the exclusive mandate to lift immunity or stipulate conditions for its approval instead of giving the President more absolute powers. This decision raises concerns over the pressure exerted by the executive authority over the court.
Moreover, the decision issued by the High Court in Ramallah, on 03 October 2016, to cancel the local council elections in the Gaza Strip and having elections in the West Bank only, elevated concerns over the independence of the judiciary even further.
Regardless the background of that decision and PCHR’s reservation over it, what is more significant is the negative image of judicial system in the public eyes, reflected in the public reactions on the decision.
The judicial representatives should ask themselves to what extent the Palestinian judiciary is still the home of truth that promotes safety and stability, or whether it turned into a place of skepticism and concerns. They should contemplate the effects of the executive authority’s interferences on their credibility.
Indeed, discussing judicial decisions requires profound vigilance and respect; however, this respect should be preceded by the presence of an independent judicial body. In light of the resignation of the Chief Justice, the independence of the judicial authority no longer exists.
The Higher Judicial Council and all judicial bodies should work now more than ever to restore society respect and trust.
In related context, there are 17 judicial decisions that have been obstructed in violation of the Palestinian law, especially article 106 of the Palestinian Basic Law of 2003 (PBL). This article asserts that the judicial decisions should be adhered without delay, while it also stated that obstructing the implementation of these decisions is punishable by dismissal from the public office.
The lack of respect for and implementation of judicial decisions is reflected in PA policy since its establishment. PCHR and other human rights organizations have documented many such cases annually. This situation reflects the increased interference of the executive authority with the judiciary, bearing in mind that no one has been held accountable for obstructing the implementation of judicial decisions.
Public trust in the judiciary is not only a matter of ethics and justice; it is also an important prerequisite for maintaining national security and stability. Thus, interference with the judiciary’s work is detrimental to the executive authority itself as it directly threatens security, public order, and the stability of the community.
Undoubtedly, conflict settlement via an independent and impartial judiciary is the only way to avoid any turmoil and to promote stability in society. These facts impose legal and moral responsibility on the Palestinian President to refrain from interfering with the performance and structure of the judicial authority, and rather to protect it.
PCHR stresses that the executive authority’s policy to seize control of the Palestinian judiciary in order to legitimize the executive’s misdeeds will undermine the legitimacy of the judiciary itself and will eventually lead to the total collapse of all PA institutions.
Ending the Palestinian split and restoring trust in the judicial authority is the only way for those aiming for an independent and democratic state.
PCHR highlights the PA’s obligations under article 14 of the International Covenant on Civil and Political Rights, which stipulates ensuring the independence of the judiciary. Moreover, PCHR calls upon all political parties to fulfill their obligations to restore trust in the judicial authority.
PCHR calls upon all political parties and the Palestinian President to form a national judicial committee, encompassing retired judges and law experts along with political powers, parliamentary blocs, and civil society. This committee should be mandated to investigate the scandal of the Chief Justice’s resignation, and to ensure the absence of similar breaches in the judiciary, including the Public Prosecution Office. This committee should pave the way for a transitional period to unify the judicial system and eventually end the internal division as whole.
PCHR demands the Higher Judicial Council as being responsible for the independence and performance of the judiciary, and to reject the executive authority interference in the judiciary’s work and structure, and to expose such deeds to the public.