Ref: 140/2022

Date: 31 October 2022

Time: 09:00 GMT

The Palestinian President issued a decree to form a new council under the name of “the Higher Council of Judicial Authorities and Bodies” headed by himself, in a serious precedent, giving himself absolute authority, as all authorities in Palestine have become under his effective control.

PCHR expresses its shock at the issuance of this decree as it constitutes a serious blow to the last pillar of judicial independence, which is considered a safety valve for stability and civil peace as well as one of the most important pillars of democracy and safeguards of human rights. In light of this development, it is necessary to set judicial independence and the process of achieving it as a goal for all in order to promote the principles of the rule of law in Palestine.

PCHR affirms that the decree violates, in form and substance, the Palestinian Basic law, principle of legality and all constitutional norms, and is a grave breach of Palestine’s obligations, particularly under Article (14) of the International Covenant on Civil and Political Rights (ICCPR) and the 1985 UN Principles on the Independence of the Judiciary.

This decree crowns a long history of the executive authority’s interference into the judicial authority, which has been on the rise since the Palestinian political division in 2007.  

One of the most important steps exposing the executive authority’s intervention was the statement by the Head of the Higher Judicial Council, Chancellor Sami Sarsour, saying that he had to sign his resignation before taking the oath for his appointment and the resignation was later accepted by the Palestinian President in his first dispute with the executive authority. As a result, Chancellor Sarsour was overthrown in 2016 less than a year after his appointment in a precedent revealing the executive authority’s control over the judicial authority.

Later in 2019, a presidential decree was issued to dissolve the Higher Judicial Council and assign a transitional one under the pretext of judicial reforms, constituting a serious step under which a number of judges were dismissed.

Under the same pretext, the Palestinian President issued three laws by decree in 2021 relevant to the regulation and work of judicial authority to be later rescinded after receiving widescale criticism from the judiciary and human rights organizations.

According to the new decree, this council will have a supreme supervisory power over all the judicial authorities and bodies in Palestine, including the Higher Judicial Council, the Supreme Constitutional Court, Sharia Judiciary, and Judicial Authority of the Security Forces.

This decree violates the 2003 Palestinian Basic Law in many ways as it contradicts with the basic principle of separation of powers stipulated in Article (2) of the Basic Law.

The decree also violates another basic principle independence of the judicial authority stipulated in Articles (89) and (97) of the Basic Law as its issuance is not merely considered as an interference in the judicial authority’s work, but rather goes beyond to place the judicial authority under the direct control of the head of the executive authority through forming a council headed by the head of the executive authority to supervise all the judicial bodies and councils.

PCHR believes that the decree may aim to get around Article (100) of the Palestinian Basic Law, which obliges the legislative bodies to consult with the Higher Judicial Council before issuing any law relevant to the judicial authority, as it stipulates:

“A High Judicial Council shall be created. The law shall specify the way it is constituted, its responsibilities and its operating rules. The High Judicial Council shall be consulted about draft laws relating to the Judicial Authority, including the Public Prosecution.”

In disregard for the aforementioned article, the decree gives powers to the Council formed to draft laws relevant to the judiciary according to Article (4) of the decree; thus, the Palestinian President will not have to consult the Higher Judicial Council when issuing any legislation related to the judicial authority, because the head of the High Judicial Council, who is also on the top of the judicial authority, has become only a member of the new council.

Moreover, the adherence to judicial authority’s opinion in the draft laws is fundamental and was previously emphasized by the Supreme Court, in its constitutional capacity, in its response to a challenge submitted by the Palestinian Centre for Human Rights (PCHR) against the 2005 Judicial Authority Law, which was repealed by the court at the time because it was issued without consultation with the High Judicial Council.

On the other hand, the decree is a violation of the principle of legality, as it creates a judicial body higher than the Higher Judicial Council, without having a constitutional or legislative basis. Thus, it violates the principle of legality as the presidential decree is merely an administrative decision under which it is not possible to create a body supervising the judicial authority, as such power is exclusively vested by the Basic Law.

Under the decree mentioned above, the Palestinian President has become fully dominant over the three authorities of the State of Palestine, as he has been in control of the legislative authority since 2006 under the pretext of the absence of the Palestinian Legislative Council (PLC) and not being able to convene.

In this context, and although Article (43) of the Palestinian Basic Law which the President relies to when issuing laws by decree provides that the president exercises this right only in cases of necessity, but the reality on the ground reveals that what the Palestinian President has issued since 2006 is more than three times the legislations issued since the establishment of the Palestinian Authority in 1994.

Therefore, we have found that the President has not only seized the legislative authority, but also exercised it as an inherent power of his own, disregarding the constitutional requirement of having a case of necessity that cannot be delayed.

In the same context, the Palestinian President is also the Chairman of the Palestine Liberation Organization (PLO), and he effectively controls all PLO’s bodies, including the Palestinian National Council, which is considered, in accordance with several provisions issued by the Palestinians Constitutional Court, a supreme legislative body, and its decisions prevail over any other decision issued by the PA.

PCHR stresses that the decree issued is contrary to the principle of legality, the Palestinian Basic Law and Palestine’s international obligations, destroying any hopes for a Palestinian democracy, rule of law or the principle of separation of powers. Additionally, it lays the foundations, in form and matter, for a state of absolutism that will be never easy to evade and thereby adding a further burden to the Palestinian people beside the burden of the Israeli occupation.

Therefore, PCHR calls upon the Palestinian President to repeal this decree promptly in order to avoid having a dangerous precedent for the current reality and future of the rule of law and the independence of the judiciary.