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| PCHR Palestinian Centre for Human Rights PRESS RELEASE |
Ref: 152/2005
Date: 27 November 2005
Time: 11:00 GMT
In a Judicial Precedent, the Palestinian High Constitutional Court Decides that the Judiciary Law of 2005 Is Unconstitutional
On Sunday, 27 November 2005, the Palestinian High Constitutional Court decided, in response to challenge #4/2005 submitted by PCHR to abolish the Judiciary Law (Law 15) of 2005, that this law is unconstitutional. In its decision, the Court stated: “In the name of the Arab Palestinian People, the Court has decided that the Judiciary Law (Law 15) of 2005 published in the Palestinian official gazette on 9 November 2005, issue 60, is unconstitutional and it will be as if it was not enacted. This decision was taken and declared publicly at the Court’s session on Sunday, 27 November 2005.”
PCHR submitted a challenge on Monday, 14 November 2005, against the Judiciary Law, which was ratified by the President of the Palestinian National Authority on 10 November 2005 and was published in the official gazette, issue 60. The challenge was made, as a number of aspects of the new Judiciary Law contradicted the Basic Law, which practically serves as the PNA’s constitution. On Saturday, 19 November 2005, the High Constitutional Court in Gaza decided to postpone the consideration of the challenge submitted by PCHR to Saturday, 26 November 2005. According to the court ruling, the postponement was decided in order to inform the representative of the Attorney General, representing the PNA, and the Speaker of the Palestinian Legislative Council (PLC), against whom the challenge is submitted, of the timing of the court’s session and to provide them with a copy of the challenge.
At the Court’s session on Saturday, 26 November 2005, the Attorney General office objected to the challenge in form and subject, but the Court rejected this objection, deciding to proceed with the consideration of the challenge. Furthermore, it denied that the Higher Judiciary Council was not consulted with regard to this law.
The Attorney General office admitted that article 65 of challenged Judiciary Law violates article 107 of the Amended Basic Law, claiming that the Palestinian Legislative Council would amend article 107 of the Amended Basic Law to conform to article 65 of the challenged law.
In their pleading, PCHR lawyers refuted all issues incorporated in the Attorney General office’s response to their challenge and submitted documents proving that article 65 of the challenged law violates article 107 of the Amended Basic Law, and that articles 36 and 103 of the challenged law constitute a constitutional breach of the Amended Basic Law.
The High Constitutional Court held sessions in its constitutional capacity to consider PCHR’s challenge. It was headed by Judge Sa’ada al-Dajani, accompanied by 4 judges: Yahia Abu Shahla; Fawzi Abu Watfa; Ameen Wafi; and Mazen Sisalem. The challenge was submitted against the Attorney General, representing the PNA, and the Speaker of the PLC. The former was represented by Mr. Muneer al-‘Aqabi, Assistant Attorney General, while the latter was absent.
PCHR welcomes the decision taken by the High Constitutional Court considering the Judiciary Law of 2005 unconstitutional. PCHR believes that this decision, which constitutes a precedent in the Palestinian judiciary, is a triumph for the principle of the independence of the judiciary, as it puts a stop to efforts made to undermine the Palestinian judiciary. It further reinforces the separation of authorities.
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In the Name of Allah, Most Gracious, Most Merciful
The High Court in Gaza, in its capacity as a High Constitutional Court
Constitutional Challenge #4/2005
Before Judges: Sa’ada al-Dajani (Head)
Yahia Abu Shahla (Member)
Fawzi Abu Watfa (Member)
Ameen Wafi (Member)
Mazen Sisalem (Member)
Secretary: Marwan al-Namara
Challenging Party: Palestinian Centre for Human Rights, represented by Lawyers: Raji Sourani; Iyad ‘Alami; Ibrahim Sourani; Ashraf Nasrallah; and Ahlam al-Aqraa’
Challenged Party: 1. President of the Palestinian National Authority, represented by the Attorney General; and
2. The Palestinian Legislative Council, represented by Speaker Rawi Fattouh.
Subject of the Challenge: The Judiciary Law (Law 15) of 2005
Date of Submission: 16 November 2005
Date of the Session: Sunday, 27 November 2005
Attendants: Iyad ‘Alami; Ibrahim Sourani; Ashraf Nasrallah; and Ahlam al-Aqraa’ (representing the challenging parties); and Mr. Nabil al-‘Aqabi, Assistant Attorney General.
In the name of the Arab Palestinian People
“The Court has decided that the Judiciary Law (Law 15) of 2005 published in the Palestinian official gazette on 9 November 2005, issue 60, is unconstitutional and it will be as if it was not enacted. This decision was taken and declared publicly at the Court’s session on Sunday, 27 November 2005.”
Head: Sa’ada al-Dajani
Member: Yahia Abu Shahla
Member: Fawzi Abu Watfa
Member: Ameen Wafi
Member: Mazen Sisalem
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Palestinian Centre for Human Rights
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