POSITION PAPER ON THE DEPOSED PRIME MINISTER S DECISION TO ESTABLISH A HIGHER JUSTICE COUNCIL IN THE GAZA STRIP

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1 POSITION PAPER ON THE DEPOSED PRIME MINISTER S DECISION TO ESTABLISH A HIGHER JUSTICE COUNCIL IN THE GAZA STRIP AL-HAQ DEMANDS THAT THE DEPOSED GOVERNMENT RESPECT THE INTEGRITY OF THE PALESTINIAN JUDICIARY AND ABANDON DECISIONS THAT UNDERMINE THE INDEPENDENCE OF THE JUDICIARY. [Translation of original Arabic text published 20 October 2007] Following Hamas effective seizure of control over the agencies and institutions of the Palestinian National Authority (PNA) in the Gaza Strip in mid-june 2007, the Hamas members of the deposed Palestinian government, 1 in which Hamas held numerous senior positions, became the de facto authority in the Gaza Strip. This government made a number of decisions and took measures in order to enforce its control as well as manage day-to-day affairs. In this context, the government has issued dozens of decisions on various administrative, security and financial matters. A. In addition to preserving security and public order and operating public institutions, the deposed government s decisions addressed the criminal justice system as well as the Palestinian judicial system through the following acts: 1. On 11 September 2007, the deposed Prime Minister issued a decision to establish the Higher Justice Council to replace the Higher Judicial Council. Accordingly, the deposed Minister of Justice was tasked with the nomination of six members to sit on the new Council. Chaired by Advocate Abd-al-Ra ouf Umar al-halabi, the Higher Justice Council was officially established. 2. The six members on the Higher Justice Council who were chosen by the deposed Minister of Justice will nominate another three members to sit on the Council. According to the deposed Prime Minister s decision, all nine members will be vested with the following powers: a. Development of a list of the vacant judicial positions to be forwarded to the de facto Ministry of Justice in Gaza for announcement. b. Nomination of judges and proposal of promotions within the judiciary to the deposed Council of Ministers, following a recommendation from the Committee on Appointments. c. Decisions on the termination of judges service or the assignment of judges to non-judicial duties. d. Approval of applications for judicial leave and reporting leaves to the de facto Ministry of Justice. e. Receiving and adjudicating grievances from judges. 3. On 9 August 2007, Dr. Yousef al-mansi, the Minister of Justice in the deposed government, issued a decision to appoint a Deputy Attorney General as well as a number of prosecutors and assistant prosecutors in the Gaza Strip. In the 1 Hamas and Fateh formed a unity government in March 2007, with Hamas as the senior partner. It is this government that was deposed (both in the West Bank and Gaza Strip) by Palestinian National Authority President Mahmoud Abbas on 14 June 2007 following the seizure of control of the Gaza Strip by Hamas forces.

2 presence of Dr. Ahmad Bahar, Deputy Chairman of the Palestinian Legislative Council (PLC), Isma il Jaber, the new Deputy Attorney General, was sworn in before the deposed Minister of Justice. 4. On 14 August 2007, Dr. al-mansi made a decision to terminate the employment of Ahmed al-mughni, the Attorney General, allegedly because the procedures undertaken during his appointment were unlawful. al-mughni had been appointed as Attorney General on 18 September With reference to the appointment of the Attorney General, Article 107/1 2 under the Basic Law of 2003 (the Basic Law) was amended in Issue No. 71 of the Palestinian Official Gazette, and was published in the Gaza Strip on 13 August Accordingly, the phrase and upon approval of the Palestinian Legislative Council was added at the end of the article. 5. On 16 August 2007, the Executive Support Force (ESF) raided the Attorney General s offices in Gaza City and detained Ahmad al-mughni as well as prosecutors and Heads of the Attorney General s office. At gunpoint, the ESF took al-mughni to the security agencies compound (al-saraya) in the centre of Gaza City. Al-Mughni was required to pledge that he would not leave the Gaza Strip for the West Bank and that he would stop carrying out his duties as Attorney General. Furthermore, al-mughni was ordered not to make any press statements. B. The above decisions gravely violate the principles of legitimacy and the rule of law. They explicitly violate provisions under the Basic Law and the Law of the Judicial Authority No. 1 of The following legal concerns are of particular importance: 1. The establishment of the Higher Justice Council and its entrustment with the duties of the Higher Judicial Council, the latter of which is constituted in accordance with the Law of the Judicial Authority, is a gross violation of both this Law and the Basic Law. The formation of this Council represents the creation of a judicial body that is not regulated by the Law of the Judicial Authority or the Basic Law. In principle, the decision to establish the Higher Justice Council does not rely on any legislative grounds that legalise its operation. Nevertheless, the preamble to the decision in question makes reference to provisions of the Basic Law: Having reviewed the Basic Law; based on the powers bestowed upon me by law; and in pursuance of requirements of the public interest, the Council of Ministers has decided in its Twenty Eighth Session convening in Gaza City on September 11 th 2007 A.D. the following This preamble raises a number of concerns: a. The Basic Law does not include any provision on the so-called Higher Justice Council. b. Article 68 under the Basic Law meticulously prescribes powers bestowed upon the Prime Minister. Those powers are the following: 2 Amended Basic Law, Article 107/1: The Attorney General shall be appointed pursuant to a decision issued by the President of the National Authority, based upon a nomination submitted by the High Judicial Council. 2

3 1. Formation, modification of the Council of Ministers, remove or accept resignation of any member of it, or fill the vacant position. 2. Call the Council of Ministers for weekly meeting, when necessary, or upon a request from the President of the National Authority, as well as putting its agenda. 3. Presiding over the sessions of the Council of Ministers. 4. Manage whatever related to the affairs of the Council of Ministers. 5. Oversee the work of Ministers and public institutions, which belong to the government. 6. Issue necessary decisions within his jurisdiction in accordance with law 7. Signing regulations approved by the Council of Ministers. 8. The Prime Minister shall appoint one of his ministers as a deputy for him, in order to assume his duties in his absence. 3 c. Article 69 under the Basic Law sets out the powers of the Council of Ministers, including the following: Prepare the administrative apparatus, develop its structures, and provide it with all necessary means, as well as supervising and following it up. 4 Follow up the implementation of laws, and ensure compliance with their provisions, as well as take necessary actions in this regard. 5 Supervise the performance of different Ministries and all other components of the administrative apparatus, for their duties and functions, and coordinating between them. 6 Establishment or cancellation of agencies, institutions, commissions, and similar administrative units, which belong to the executive apparatus of the government, provided that each shall be regulated by law 7 Within the framework of the Basic Law, the role of the Prime Minister and Council of Ministers is principally restricted to exercising executive powers that safeguard the smooth running and sustainability of public administration and public institutions. As is made clear in the Basic Law, the Council of Ministers is obliged to follow-up on the enforcement of laws and ensure respect for their provisions. This implies that the Council of Ministers and the Prime Minister should respect the Basic Law and the Law of the Judicial Authority. Undoubtedly, the deposed Prime Minister shows a palpable disrespect for the Basic Law in his decision to establish the Higher Justice Council, as this decision flagrantly violates the legal powers and responsibilities assigned to him. d. Article 98 of the Basic Law provides: Judges shall be independent and shall not be subject to any authority other than the authority of the law while exercising their duties. No other authority may interfere in the 3 Amended Basic Law, Article 68 4 Amended Basic Law, Article 69(4) 5 Amended Basic Law, Article 69(5) 6 Amended Basic Law, Article 69(6) 7 Amended Basic Law, Article 69(9)(a) 3

4 judiciary or in justice affairs. Furthermore, Article 45 prescribes that: The President of the National Authority shall appoint the Prime Minister, and task him to form his government. The President shall have the right to remove him, and to accept his resignation, as well as ask him to invite the Council of Ministers to convene. Both the Prime Minister and the cabinet members of the deposed government must make reference to the provisions of the Basic Law. They are bound to respect its provisions not only in the exercise of their de facto powers, but also in reference to the exercise of powers granted to other authorities. It is unjustifiable that the deposed Prime Minister makes reference to the Basic Law so as to legitimise his decision to establish the Higher Justice Council, while at the same time denying the powers bestowed by the same Law upon the Head of the Executive Authority regarding his deposition, as well as the powers and capacities provided to the Judicial or Legislative Authorities. Enforcement of provisions under the Basic Law may not be selective. Whilst denying articles that regulate duties and powers of other authorities, the deposed Prime Minister has resorted only to those provisions which serve his ends. Despite the fact that a legislative basis is unavailable, the deposed Prime Minister s decision to establish the Higher Justice Council that would exercise jurisdiction instead of the Higher Judicial Council (which is established in accordance with the Law of the Judicial Authority No. 1 of 2002) is an explicit annulment of Article 100 of the latter Law. Neither the Council of Ministers nor the Prime Minister possess such a power, given that the power to enact, repeal or amend legislation is a function of the Legislative Authority. As an exception, the Head of the Executive Branch may exercise this function in urgent circumstances in which time is of the essence and when the PLC is not in session. To endow the powers of the Higher Judicial Council to this new judicial body is a further gross breach of the former s functions as well as of the pillars of judicial independence, which are safeguarded by Article 98 of the Basic Law. Furthermore, involvement of the Executive in the internal management and operation of the judiciary compromises judicial independence and impartiality. All powers to be exercised by the Higher Justice Council, including appointments, promotions, grievances and the termination of employment of judges, are null and void. Thus, any administrative decisions made by the Council are also marred by the grave defect of lack of jurisdiction. In pursuance of the Basic Law and the Law of the Judicial Authority, the Higher Judicial Council is the sole body authorised with jurisdiction over such determinations. C. Certain decisions made by the Minister of Justice in the deposed government, notably the suspension of the Attorney General and the appointment of a new Deputy Attorney General and a number of prosecutors and assistant prosecutors in the Gaza Strip, are illegitimate as they grossly contravene provisions of the Basic Law and the Law of the Judicial Authority. The following are the primary considerations of relevance to these illegitimate acts: 4

5 1. The President of the PNA is legally authorised to appoint the Attorney General. More importantly, the President is similarly authorised to dismiss the Attorney General. No one else is entitled do so. Article 64 under the Law of the Judicial Authority provides: 1. Members of the Public Prosecution shall take an oath, before assuming their duties for the first time, as follows: I swear by God, the Almighty, to respect the Constitution and the law and to perform my duties honestly and in good faith. 2. The Attorney General shall take the oath before the President of the Palestinian National Authority and in the presence of the Minister of Justice. 3. The other members of the Public Prosecution shall take oath before the Minister of Justice and in the presence of the Attorney General. 8 Since the Law explicitly prescribes that the Attorney General be present when members of the Attorney General s office are sworn into office, doing so in the absence of the Attorney General is a deviation from the formal legal procedures for the appointment of members of the Attorney General s office. Hence, the Attorney General or any other interested party may challenge such a procedure. In light of the fact that the current government in the Gaza Strip became legally incapacitated on the day the unity government of which it was part was deposed, all decisions regarding appointments in the Attorney General s office are null and void. Therefore, administrative decisions taken by members of this government are invalid for want of jurisdiction. From a legal perspective, these decisions are being made by legally incompetent persons. 2. Unlawful decisions to form the Higher Justice Council and suspend the Attorney General prejudice the integrity of the Palestinian judiciary, splitting it into two distinct systems. As a matter of fact, the deposed government s practices will revert the Palestinian judicial system back to a dual judicial systems, with one system in force in the West Bank and another in force in the Gaza Strip, thereby negating all the advances made over the past decade to consolidate the Palestinian judicial apparatus into a unified system. 3. Safeguarding the Palestinian judiciary s strength, legitimacy and independence, as well as avoiding involvement of the judiciary in political and partisan conflicts must remain an essential goal not only on the part of civil society organisations but also on part of all Palestinian political forces. An unbiased, impartial and independent judiciary is an essential pillar that safeguards stability and security in all aspects of daily life. If these guarantees are subverted, society will be deprived of a vital lynchpin of internal stability and future development. Against the above backdrop, preserving the integrity and impartiality of the Palestinian judiciary requires that the de facto authority in the Gaza Strip revoke all measures and decisions which adversely impact judicial independence and sovereignty, or render the judiciary as ineffective as it has been in previous decades. 8 Law of the Judicial Authority No (1), 2002, Article 64. 5

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