Two out of three new presidential decrees issued by Palestinian President Mahmoud Abbas regarding the Palestinian Authority’s court system expand the executive branch’s involvement in the judiciary. They also make the judges dependent, as a matter of law, upon Palestinian politicians and indirectly – upon security agencies.
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The Palestinian Bar Association demands that the decrees be rescinded and has taken a series of steps over the past two weeks to protest – including demonstrations and refusing to appear in court. Already before the new presidential decrees were issued, Abbas and the Palestinian security forces have had a long tradition of intervening in the appointment of judges and interfering with the judges’ rulings – or ignoring them.
The new presidential decrees, which have the force of law due to the absence of a functioning Palestinian parliament, were officially published on January 11 – just four days before Abbas ordered the holding of elections for the Palestinian Legislative Council, the parliament. The close timing has buttressed suspicions among Palestinian jurists and human rights organizations that an intentional underhanded maneuver was at play, and that officials in the ruling Fatah party of the Palestinian Authority are not serious about the elections or their democratic character.
If there had been a real intention in the near future to resume the operations of the Legislative Council – which has been paralyzed since 2007 and was dissolved two years ago – there would have been no need to rush the matter through the use of presidential decrees, critics argue. In addition, according to Palestinian Basic Law – which serves as a constitution of sorts – presidential decrees are only to be issued in matters of emergency, which is not the case here.
Eliminate judges' independence
One of the three presidential decrees amends and replaces a 2002 law on the Palestinian Authority’s judicial system. This legislation, which was passed after professional consultations between legal experts and members of parliament, was considered among the best of its kind in the Arab world.
The basic principle is that the president of the Palestinian Authority (the State of Palestine, as it is referred to) has the power to select the presiding judges (court presidents) at the high instances of the court system, as well as those judges’ deputies, from a list of candidates. That contradicts the 2002 law, which provides that the appointment of court presidents and deputy presidents is to be based on seniority, and that the Palestinian president simply approves their appointments.
It is the High Judicial Council that appoints judges at all levels and that is responsible for the court system and its operations from an administrative and budgetary standpoint. The High Judicial Council is administered by the president of the Supreme Court and his deputy, by senior judges at various court levels, by the deputy justice minister and the chief prosecutor.
Because the president of the Supreme court is appointed by the Palestinian president, he willy-nilly is dependent on him, and so is the High Judicial Council that he presides. Not accidentally, the High Judicial Council has now received brand new powers to remove judges at the end of their first three years on the bench. The official explanation for this is the need to provide careful oversight of the professionalism and quality of the judges, but as a practical matter, under the new arrangement, legal experts and human rights groups say the threat of being fired will force the judges to do the bidding of the judicial council, which in turn has to satisfy the Palestinian Authority president.
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The presidential decree also authorizes the judicial council to transfer judges to out-of-court position, such as legal adviser to a government entity, for example. It endows the council with the authority to establish a three-judge panel that can force their colleagues to retire after more than 15 years on the bench. That’s even before they reach the new retirement age, which the presidential decree set at 70. From now on, it will also have the power to force judges to take retirement five years early, and receive 50 percent of their salaries.
The conclusion from those changes is that the council’s new powers not only eliminate the judges’ job security and career prospects. They also send a signal that it behooves the judges not to demonstrate independence in their rulings, particularly in cases involving the security services and various official decisions.
That is not a minor concern. Last year, 40 judges were dismissed – including judges who had quite a number of years left until retirement. At least when it comes to some of them, their professionalism was not in question. They were judges whose rulings did not meet the expectations of the authorities, or who criticized the involvement of the executive branch and Abbas in their work and that of the courts, and were also members of the professional association of the judges ("The Judges' Club").
Eliminate the High Court
The second presidential decree establishes administrative courts, a new kind of court with the authority to hear petitions against government entities and other official institutions. One senior judge who was fired last year told Haaretz that in practice, it eliminates the High Court of Justice, which has had the authority to hear petitions against government institutions and policies.
According to the new decree, the Palestinian Authority president appoints the administrative court president and deputy president as well as the judges on the appellate level. The PA president also has the authority to appoint legal advisers to government ministries as administrative court judges. Independent lawyers are concerned that such judges would be biased in favor of government institutions – to the detriment of the individuals challenging government actions.
Suspicions over the motives of Abbas and his associates are so great that human rights organizations are concerned that the new court will be exploited to scuttle the holding of elections. “According to the decree, the administrative court has the authority to hear petitions against the General Elections Committee. If the executive branch wishes to halt [the elections], it can secretly stand behind an anonymous person who will find some kind of excuse to petition against it,” a member of one of the organizations told Haaretz.
Other criticism relates to concerns over the financial burden that the new courts present. At a demonstration on Tuesday at the court complex in Ramallah, speakers argued for spending money on courthouses in more remote locations rather than creating a new type of court.
At that protest, the speakers directed blame at Issa Abu Sharar – the Supreme Court president and head of the High Judicial Council. The presidential order set the retirement age for judges at 70 – but made an exception for Abu Sharar, who is 85.
In the past, Abu Sharar actually opposed the involvement of the executive branch in the judiciary, and people are finding it hard to explain his shift in position. At Tuesday’s demonstration, lawyers chanted: “Leave, leave,” in reference to Abu Sharar.
The first directive that Abu Sharar issued following the new presidential decrees bars judges from publicly expressing their opinions. Lawyers say that Abu Sharar – who was a military judge when the West Bank was under Jordanian rule – frequently complains about what he considers the poor quality of Palestinian judges, and that his opinion on the matter has been conveyed to President Abbas.
Some lawyers, legal experts and human rights organizations agree that his criticism is not unfounded, but they say the required reforms cannot be based on such meddling by the executive branch.
Critics say the decrees were issued without any consultation with civil society groups and without any public debate – in contrast with the parliamentary legislative process, which always involves various sectors of society beside the elected representatives. So far, Abbas’ associates have not provided explanations or made statements to allay the concerns. There has also been no explanation from Abbas’ legal adviser, Ali Mahana, who is thought to have drafted the decrees. He is a former justice minister and former president of the Supreme Court and head of the High Judicial Council.
A political game
To complicate matters even further, the protest by the Bar Association – eight of whose nine elected representatives are identified with Abbas’ Fatah party – is also motivated by the rivalries between Fatah senior leaders (including top members of the security agencies) who support different camps within the bar association.
Some observers mention Tawfik Tirawi, the former head of the Palestinian general intelligence service, as having great influence over the bar association. Tirawi is a rival of the two senior officials closest to Abbas: Hussein al-Sheikh, the civil affairs minister, and Majed Faraj, the current head of the intelligence service.
Nonpartisan lawyers who oppose the far-fetched changes to the judiciary are concerned that by joining the protest, they would in practice be taking a stand in an internal Fatah power struggle. But they have nevertheless joined the call to revoke the Presidential decrees.
In a joint statement, the Palestinian National Coalition for Judicial Reform and the Independent Commission for Human Rights, said, “These decrees undermine the effort to reform the judiciary, and subordinate it to the executive authority… [They] contain legislative texts that fundamentally affect the independence of individual judges. They also strip judges of the most important guarantees of their independence, especially by undermining the principle of immunity from arbitrary dismissal."