Palestinian Judges Launch Campaign Against Further Erosion of Their Independence

Palestinian Authority judges have been facing outside attempts to influence their decisions, salary cuts, a failure to implement their rulings and a bill that would blur the separation of powers

Judges protest in El Bireh, August 23, 2017.
Amira Hass

Protests at the Palestinian court complex in the West Bank town of El Bireh are not a new occurrence, but last Wednesday’s was a particularly unusual spectacle: The 40 or so demonstrators at the modest entrance to the Palestinian Supreme Court were judges, prosecutors and lawyers.

A few policemen stood idly along the sidelines. The protesters didn’t carry placards or chant slogans. The low number of journalists covering the event (five) was surprising, considering the rare sight of judges publicly demonstrating their concern over the erosion of the Palestinian judicial branch's independence. 

The Palestinian Authority’s legislative council has been paralyzed since 2007, the year Hamas took over control over Gaza's security agencies. As a result, the work of passing laws has been assumed by the executive branch of the PA in Ramallah and carried out either through presidential decrees or a legislative committee that is subordinate to the government.

The draft of a bill that would change the PA’s 2002 law on the powers of the judiciary was made public in June. It included two concerning provisions, some judges told Haaretz: One would give the Palestinian president the authority to appoint the head of the High Judicial Council, which oversees the courts and has the responsibility for protecting their independence. The second would allow the president to appoint the head of a separate committee that oversees judges. Alongside these was a provision for judges’ early retirement, which implies that judges whose rulings are not to the liking of the executive branch could find themselves out of a job.

The High Judicial Council has objected to the proposed law. So have the judges and prosecutors and the Palestinian bar association. A district court has ordered the executive branch to stop interfering with the judiciary.

It was then discovered that the salaries of about 30 judges, including senior members of the bench, had been cut. The judges assume that it was a result of their public opposition to the bill. The district court ruled that cutting the judges’ pay was illegal, but two months later their salaries still have not been restored.

“The wages are not the main issue,” one senior judge told Haaretz, “but rather the principle of it. The executive branch’s control over salaries is a means of controlling court decisions and therefore harming our independence.” He also said that the very attempt of the executive to draft a law that applies to the judiciary violates the principle of separation of authorities and the Palestinian basic law.

On June 20, the council announced that on instructions from Palestinian President Mahmoud Abbas, representatives of the executive branch and the judiciary met to discuss the draft law and decided to shelve it, reactivating a committee to improve the judiciary instead.

But two weeks ago, the Palestinian government announced that it still planned to amend the law, adding that a committee that included the head of the High Judicial Council had almost finished drafting a new version of the bill. The judges’ professional association, along with the prosecutors and the bar association, decided to step up their protests, including partial work stoppages.

Several judges said that the law currently on the books is excellent and that there is no need to amend it. “The executive branch is interested in turning us into their clerks. That’s the real significance of the proposed changes,” said one of them.

Speaking diplomatically, the judges said that the participation of the judicial council’s head in drafting the bill is problematic. They noted that if the whole council supports it, the dispute will no longer be between the judiciary and the executive but will shift to the judges themselves.

Ibrahim Barghouthi, the legal adviser to Musawa, a Palestinian nonprofit devoted to protecting the judiciary’s independence, told the Watan news website that the judiciary is not beyond the need for reform and rehabilitation of the public's confidence in it. A new law would not suffice, he said, as there is a need to improve the quality of judges and their performance and address the widespread corruption "in the large sense of the word." But he didn't shy away from criticizing the executive branch's interference. In the absence of a functioning legislature and the existence of alleged bias among some of the supreme court justices, Barghouthi said the situation is approaching that of an absolutist regime.

Some judges who spoke to Haaretz believe the driving force behind the bill is the Minister of Justice and the government. Others said it could not be pursued without the support of Abbas and his advisers. Indeed, several measures taken in 2016 attest to the president's inclination to curb the powers of the two other branches. 

Last year the judges of a constitutional court were finally nominated, 13 years after this court's law had been passed. Violating the law, they were not sworn in at the presence of the head of the legislative branch, but only the heads of the two other branches. Already in January 2006, the original law was radically modified: the court's power to oversee the president was revoked, and the parliament's participation at nominating the judges was cancelled. 

One of this court's first rulings, in November 2016, was that the president had the power to dismiss Parliament members, and indeed immediately after that, Abbas dismissed his arch rival in Fatah, Mohammed Dahlan, from his position at the defunct legislative council. It was also discovered last year that former Supreme Court Chief Justice Sami Sarsour was forced to sign an undated letter of resignation just before he had been sworn in. This letter was validated once he fell out of grace of a Fatah senior. The assumption is that the same has been required of other judicial appointees.

In many instances, judges’ ruling to release detainees or reinstate employees who were fired over their political views have not been enforced. The judges recounted the case of a man who was arrested for writing on Facebook that the Palestinian government didn’t care about the people. A Nablus judge ordered him released and he was set free but immediately rearrested. When a second order to release him was ignored, an appeals court ordered him let go, but it took another 24 days for him to be freed; meanwhile, the Nablus judge was transferred to a court located nearly a two-hour drive from her house in Jericho. Such occurrences, as well as the demotion of judges who rulings are not of the authorities’ liking, is not a rarity.

“When they don’t honor our rulings, what kind of impression does the public get? And if they don’t respect us, how will they respect an ordinary citizen?” one judge asked.