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Ref: 155/2005

Date: 05 December 2005

Time: 13:00 GMT

In a Highly Questionable Statement, Four NGOs Challenge the Palestinian Judiciary

PCHR Condemns the Call by Four Palestinian NGOs to Disregard a Palestinian High Court Decision

Four Palestinian non-governmental organizations published a statement on their opinion of the Palestinian High Court’s decision of 27 November 2005, regarding the unconstitutionality of the Judicial Authority Law.  The statement called for a disregarding of the High Court’s decision, which came in response to an appeal filed by PCHR on 14 November 2005.

The Palestinian Bar Association; the Palestinian Center for the Independence of the Legal Profession and Judiciary, “Mosawah”; the Coalition for Fairness and Accountability, “Aman”; and Miftah published a statement in al-Quds daily on 3 December 2005 that considered the High Court’s decision “illegitimate”.  They contended that the body which issued the decision is not entitled to look into constitutional appeals.  The statement declared that the convening of the High Court as a constitutional court violates the law because constitutional appeals come under the jurisdiction of the High Court in full session of 21 judges.

The statement signatories publicly called for a disregarding of the High Court’s decision and for decision to be completely ignored.  “We think that the decision stipulating the unconstitutionality of the Judicial Authority Law does not include the characteristics of a binding legal decision.  The decision lacks reasoning, which requires disregarding it and ignoring it.”

PCHR strongly condemns the inaccuracies in this statement.  Furthermore, PCHR is highly critical of the public call by these organizations to disregard a court’s decision issued by the highest Palestinian judicial body, the Palestinian High Court, in its constitutional capacity.  In addition, PCHR denounces the provocative language of the statement that contained unjustified incitement against the Palestinian judiciary.  These negative remarks come despite Palestinian civil society’s recognition, on more than one occasion, of the independence and fairness of the judicial system.

Palestinian civil society has been working for years to promote the principle of “independence of the judiciary.”  It has been calling for respect and implementation of the decisions of the judiciary.  Thus, it is totally unacceptable for Palestinian NGOs to call for the disregarding and ignoring of judicial decisions, and to incite against the implementation of them.  All of this has been carried out on the basis of refutable arguments.

The Palestinian High Court convened in order to consider the appeal submitted by PCHR against the Judicial Authority Law #15 of 2005.  The appeal established that the law is unconstitutional and violates the Palestinian Basic Law.  It is within the jurisdiction of the High Court to consider the appeal.  Furthermore, convening the court in a regular session, without the full panel of judges, does not contain any violation of the law.  The High Court has multiple tasks and convenes in regular sessions to consider cases, including the constitutionality of laws and matters pertaining to judges, in accordance with Article 46 of the Judicial Authority Law in effect.

In its 27 November 2005 session, the High Court replied to the question regarding its jurisdiction to consider a constitutional appeal.  The Court stated that according to Article 104 of the amended Basic Law of 2003 and Article 37 of the Formation of Regular Courts Law #5 of 2001, Palestinian law has temporarily allocated all the tasks of a constitutional court to the Palestinian High Court, pending the promulgation of a law that establishes a constitutional court.  Thus, the High Court is temporarily entitled to look into constitutional appeals and review the constitutionality of laws until the formation of a constitutional court.

In light of the fact that there is no constitutional court of law yet, the law that regulates all legal action in all Palestinian courts, including the High Court, is the Foundation of Civilian and Commercial Courts Law #2 of 2001.  It is the general law that must be applied in the absence of a specific provision.  The stipulations of this law allow for filing a case in person after the fulfillment of the conditions of legal status, interest, and damage.  These conditions were proven by PCHR lawyers in their arguments; thus, ending all doubt regarding the jurisdiction of the High Court in considering the appeal.

PCHR confirms the fairness and independence of the Palestinian judiciary and stresses the unconstitutionality of the new Judicial Authority Law.  This was established by the Palestinian High Court, in its constitutional capacity.  PCHR draws attention to the letter issued by the President of the Palestinian Authority, Mahmoud Abbas, to the Palestinian Legislative Council (PLC) calling upon its members to amend the Palestinian Basic Law to conform to the Judicial Authority Law.  This is an implicit admission that the latter contradicts with the Palestinian Basic Law, and is thus unconstitutional.

PCHR is shocked by the call by four Palestinian NGOs to the PLC to speed up the process of amending the Basic Law and the passing of the constitutional court law.  In this regard, PCHR points to two main issues: 1) the legislative chaos plaguing the PLC; and 2) the closing date of legislative elections on 25 January 2006.  Both of these points contradict the call for speeding up the passing of new laws.  The situation calls for caution and care, rather than speed for the sake of enacting new laws.  It is noted that the PLC during the period 11 March 2004 to 9 March 2005 passed 23 laws, 14 of which were approved in a span of 60 days only.

In the same context, PCHR condemns the attitude of the PLC, represented by its legal committee, towards the decision of the Palestinian High Court in its constitutional capacity.  The PLC considers the decision illegal.  The PLC should be very concerned about the constitutionality of its legislation and conformance to the Basic Law, the de facto constitution of the Palestinian Authority. Furthermore, the PLC has been calling since its election for respect for judicial decisions.  It is an entity that should adhere to the constitution in a comprehensive manner, and to refrain from intervening in the work of the judiciary.  It also remains a fact that the law in question is unconstitutional.  Thus, it is illogical to amend the constitution to conform to the Judicial Authority Law.  Reason requires drafting the Judicial Authority Law to be in conformance with the constitution in the first place, regardless of its impact on the interests of one party or another.

PCHR points to the danger inherent in the call issued by the four NGOs and their incitement against the Palestinian judiciary.  Withdrawing support for the judiciary and its fair decisions is declaring support for lawlessness.  It seems that those who issued the call to disregard the court’s decision are ignorant of the grave consequences of their statement.  Palestinian civil society has been warning against these consequences for a long time.  PCHR calls upon the Palestinian Bar Association; the Palestinian Center for the Independence of the Legal Profession and Judiciary, “Mosawah”; the Coalition for Fairness and Accountability, “Aman”; and Miftah to review their legal assessment of the decision, and to drop the unacceptable incitement against the Palestinian judiciary, represented by the highest judicial body, the High Court, in its capacity as a higher constitutional court.  PCHR calls upon the PLC to cease its flagrant and unacceptable interference in the work of the Palestinian judiciary.  This interference is a grave violation of the constitution and the principles of rule of law and independence of the judiciary.  PCHR calls upon all parties to turn to issues that represent an interest to Palestinian citizens first and foremost.  We can either accept the rule of law or a state of lawlessness.

-End-

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