By Dr. Isam Abdeen- Ramallah/Al-Haq/
A Draft Law by Decree Amending the Judicial Authority Law No. 1 of 2002 has been in circulation, and a report issued by the Justice Sector Development Committee was also published on 28 November 2018 in response. Both developments have a bearing on judicial independence and the justice sector.
Al-Haq, an independent Palestinian human-rights organization, stated its concern in regards to the Draft Law by Decree, “the Committee’s report and Draft Law by Decree vest the executive with over-broad and unconstitutional powers over the judiciary and administration of justice. Both involve a clear conflict of interests, a deviation from legislative requirements, and cause a further deterioration in the judiciary and justice system.”
Al-Haq confirms that deficiencies in the judiciary and justice system are structural and manmade. These flaws are not intrinsic in the law itself. The Judicial Authority Law is one of the most advanced laws, which protect judicial independence. The continued deterioration of judicial practice is attributed to violations of the principle of the rule of law and separation of powers and the Judicial Authority Law. In addition to an absent will for reform, the executive and its agencies have encroached on the Judicial Authority and justice system. Successive boards of the High Judicial Council (HJC) (i.e. the judicial administrations) have collaborated with the executive to undermine independence of both the Judicial Authority and the judges. Bearing witness to this is the fact that, since the Palestinian Authority was established, all three HJC boards have been formed in contravention of the Judicial Authority Law. Successive presiding judges of the High Court and HJC chairs have been appointed in a manner that also violated the Judicial Authority Law. Contrary to the said Law, High Court judges have been referred to investigation for exercising their right to free expression and criticising the deteriorating situation of the judicial system. Also in violation of the Law, HJC chairs submitted resignations to the executive even before exercising their functions. Judicial appointments and transferences contradict the Law.
Many decisions issued by the judiciary have not been implemented by the executive and its agencies, and the list goes on. This means that the real problem lies with disrespect of the Judicial Authority Law and principle of the rule of law, not with the Judicial Authority Law itself. Recommendations of the Justice Sector Development Committee and the Draft Law by Decree Amending the Judicial Authority Law give the executive broad influence over the judiciary and justice sector. These unlawfully distort the Judicial Authority Law and lead to further deterioration and disintegration of the judiciary and justice system.
Against this background, Al-Haq calls for a serious community dialogue to examine ways to halt the continued deterioration of the judiciary and justice apparatus, discuss reform mechanisms and requirements, and draw lessons from reform processes that have failed over the past years.
For more detailed comments from the organization: Al-Haq’s Comments on the Law by Decree on Social Security and its Complementary Regulations and Instructions