Ref: 127/2007
Date: 24 September 2007
Time: 11:00 GMT
Establishing the Higher Justice Council is Illegal and Usurps the Authority of the Higher Judicial Council
PCHR strongly condemns the decision of the dismissed government in Gaza to establish a Higher Justice Council and naming its members. The Centre affirms the illegal nature of this Council that usurps the authority of the Higher Judicial Council that is legally functional. The dismissed government does not have the power to form such a council. The Centre views this step as a dangerous procedure added to the chain of steps taken by this government to undermine the judiciary.
The dismissed government issued a decision dated 4 September 2007 stipulating the formation of a Higher Justice Council and tasking the Minister of Justice to appoint its members. On 11 September 2007, the government accepted the nomination of 6 council members headed by the lawyer Abd El-Ra’ouf Omar El-Halabi. According to the first article of the decision, the 6 members are to nominate 3 other members to be approved by the Justice Minister. The second article determines the functions of this Higher Justice Council as:
– Determine vacant judicial posts and informing the Ministry of Justice to announce filling them.
– Nominating judges and their promotions to the government after obtaining the recommendations of the appointments committee.
– Deciding on terminating the employment of a judge or assigning a judge to a task outside the judicial sphere.
– Accepting vacation requests of judges and informing the Ministry of Justice about them.
– Receiving judges’ complaints and studying them.
All these tasks are under the jurisdiction of the Higher Judicial Council that is governed by the Judicial Authority Law No. 1 for the year 2002, which is effective in the Palestinian National Authority. It is noted that the above tasks are taken with some amendment from the tasks set in article 38 of the Judicial Authority Law No. 15 for the Year 2005. It is noted that on 27 November 2005 the High Court, in its capacity as the constitutional court, rule that Law No. 15 for the Year 2005 is unconstitutional. The ruling came in response to an appeal submitted by PCHR.
This decision by the dismissed government comes in the context of a series of illegal decisions that undermine the judiciary. These decisions included:
1- Decision by Minister of Justice, Dr. Yusef El-Mansi, on 14 August 2007 to suspend the Attorney-General claiming that his appointment was not conducted legally. The Centre condemned this decision and affirmed that the AG was and remains functioning legally; and that the Minister of Justice does not have the authority to infringe upon the AG’s authority or person. The Centre stressed that the decision is a serious infringement on the judicial system and obstructs justice (refer to PCHR’s press released dated 16 August 2007 for more details).
2- Attack on the AG and his impunity and the impunity of his assistants on 16 August 2007 when the Executive Force raided the AG’s office, assaulted him, and detained him with his assistants. The Centre condemned this attack and called for prosecuting the perpetrators. The Centre renewed the call to the dismissed government and its Minister of Justice to rescind the illegal decision to suspend the AG, and to take serious steps to preserve the integrity and impunity of the AG and his assistants.
3- Appointment of an Assistant AG and assistant prosecutors on 29 August 2007 to fulfill the functions of the AG and his assistants.
In light of the 2 decisions forming the Higher Justice Council and naming its members, PCHR:
– The dismissed government or any government does not have the authority to issue such a decision, which is similar to a legal decree that is out of the authority of government as set in the Basic Law.
– The decision is a flagrant interference in the work of the Judicial Authority, and is a violation of the Amended Basic Law for the Year 2003 that established the independence of the Judiciary. Article 97 of the Basic Law stated, “No authority can interfere with the judiciary or matters of justice.” The government’s decision is also a violation of the Judicial Authority Law No. 1 for the Year 2002, which stated in its first article, “the Judicial Authority is independent, and it is forbidden to interfere in the judiciary or matters of justice.”
– The decision is a usurpation of the authority of the authority of the Higher Judicial Council that is functioning legally and is governed by the Judicial Authority Law.
– There is no such thing as a Higher Justice Council in the Basic Law or Judicial Authority Law; thus it is an unconstitutional and illegal body.
– The decision creates an alternative judicial body and causes a split in the judicial authority. This will create a state of judicial chaos that will paralyze the civilian judiciary and undermine people’s interests.
– The dismissed government should rescind all its decisions affecting the judicial system.
– President Abbas must work to return the civilian police force and the AG to work in the Gaza Strip. The absence of these 2 institutions is a key motivator for the dismissed government to create alternative judicial bodies. PCHR warned against this development 3 months ago.
Palestinian National Authority
The Cabinet
Decision No. 01/28/11/m.o/a.h for the Year 2007
On
Establishing the Higher Justice Council
After review of the Basic Law and based on the legally ordained authority,
Upon the nomination of the Minister of Justice,
For public interest
The Cabinet decided in its 28th session held in Gaza City on 4 September 2007:
Article 1:
1- Establish the Higher Justice Council
2- Assign the Minister of Justice to nominate the members of the Council to The Cabinet.
Article 2:
All relevant parties must implement this decision, each according to its specialty, effective the date of issuance; and it is published in the official newspaper.
Issued in Gaza City on 4 September 2007, 22 Shaban 1428 Hijri
Ismail Haniya
Prime Minister
Palestinian National Authority
The Cabinet
Decision No. 03/29/11/m.o/a.h for the Year 2007
On
Approving the nomination of members of the Higher Justice Council
After review of the Basic Law and based on the legally ordained authority,
Upon the nomination of the Minister of Justice,
For public interest
The Cabinet decided in its 28th session held in Gaza City on 11 September 2007:
Article 1
Approve the nominations of the Minister of Justice for membership on the Higher Justice Council consisting of:
1- Abd El-Ra’ouf Omar El-Halabi, lawyer, member and president
2- Omar Ahmad Ateyya El-Borsh, under-secretary of the Ministry of Justice, member
3- Ismail Abd El-Qadir Jaber, assistant attorney-general, member
4- Mohammad Saleh Abu Emara, law school at Al-Azhar University, member
5- Ahmad Theyab Shuweideh, sharia school at the Islamic University, member
6- Abdallah Ismail Abu Jarbou’, PhD in public law, member
Three additional members will be nominated by these 6 members. The Minister of Justice will approve these nominations.
Article 2
The Higher Justice Council functions are:
– Determine vacant judicial posts and informing the Ministry of Justice to announce filling them.
– Nominating judges and their promotions to the government after obtaining the recommendations of the appointments committee.
– Deciding on terminating the employment of a judge or assigning a judge to a task outside the judicial sphere.
– Accepting vacation requests of judges and informing the Ministry of Justice about them.
– Receiving judges’ complaints and studying them.
Article 3
The Council’s term is till fulfilling the tasks assigned to it at a maximum of 6 months from the date of establishment.
Article 4
All relevant parties must implement this decision, each according to its specialty, effective the date of issuance; and it is published in the official newspaper.
Issued in Gaza City on 11 September 2007, 29 Shaban 1428 Hijri
Ismail Haniya
Prime Minister
