Upon an invitation by the Palestinian Bar Association (PBA) a meeting was held on Monday, 18 January 2021 in the premises of the PBA in Ramallah between representatives of non-governmental organisations, community-based organisations, coalitions and networks, the Judges Club Association and political parties, to discuss recent developments on the judiciary, especially after President Mahmoud Abbas had passed three decrees by law which have devastating impact on the independence of the judiciary and the rule of law in Palestine. 

On 30 December 2020 President Abbas issued three decrees by law which hold numbers 39/2020, 40/2020 and 41/2020 respectively. While the three decrees relate to the judiciary in general, the first one deals specifically with the formation of the regular courts, the second amends the Judicial Authority Law number 1 of 2002 (the Law) and the third relates to administrative courts. 

The promulgation of these decrees came in disregard of the constitutional principles of the rule of law, separation of powers and independence of the judiciary that prohibit any authority from interfering in the judiciary or judicial affairs. While such promulgation is per se unconstitutional, much of the substance of each of the three decrees entrenches the control of the executive over the judiciary in violation of the mentioned basic principles.

Decree by Law 40/2020 which amends the Judiciary Authority Law No. 1 of 2002 grants the executive authority broad powers to exercise control over the Judiciary in many ways.  This is evident in providing the President powers to control over the head of the High Judicial Council (HJC) and providing Council with authorities to control judges. For example, the decree authorizes the President to appoint and approve the resignation of the chair of the High Court of Justice who acts, at the same time, as the head of the HJC. 

This decree endows the head of the HJC with powers, which empower him to inter alia the second judges to any regular or special court, suspend their service for a period that does not exceed 5 years, or refer them to retirement upon a recommendation by a committee that is formed by the Council, if certain conditions are met. Under the decree, seconded judges receive 50% of their basic salaries in addition to cost-of-living increase and dependency allowance. Seconded judges are delt with as retired judges. 

Under the same decree the head of the HJC is not subject to provisions related to retirement age which is defined as 70 years by the Judicial Authority Law. He/she receives a monthly retirement salary that includes 15% of his/her salary for every service year as well as other allowances provided for by the effective retirement law given that the total is not less than 50% or above 70% of his/her last salary. 

In their opening remarks, the Chairman and board members of the PBA provided a brief overview of the conditions of the Palestinian judiciary and the possible repercussions of the above-mentioned decrees and expressed concern over the passing of the decrees especially that they have been passed in the absence of the Palestinian Legislative Council (PLC), the competent body to pass laws and in a confidential manner without the involvement of civil society and the Bar Association. The decrees were passed and published in the Official Gazette in spite of the fact that the Bar Association had been in constant contact with those who drafted them but never been informed or consulted with in this regard. 

The PBA and participating organisations have always maintained the position that the Judicial Authority Law that is in force is a great law and that if an amendment is needed, it should be done by the PLC.  Maintaining the approach it had repeatedly expressed in earlier statements, the PBA stressed the need for consultation with all partners. This is based on the premise that judicial reform is a community right and that judicial reform should be grounded in respect for the Judicial Authority Law. A normal High Judicial Council should be established in accordance with the Basic Law and Judicial Authority Law and should serve as the protective shield of judicial independence.  

 Non-governmental organisations and political party representatives expressed their support for the PBA in its efforts to reverse the ongoing breakdown in the judicial authority and defend judicial independence, rule of law, rights and freedoms, and the will and dignity of the people, the source of powers. Representatives also confirmed their participation in the ongoing efforts to achieve the goals stated in the statement of PBA. Participants warned against the continuing trespass by the executive over the judiciary and stressed that positions in the judiciary must not be tailored to fit certain persons for unprofessional consideration. They further cautioned against conflict of interest in appointments within the judiciary, especially that decree number 40 appears to be tailored to fit the qualifications of certain persons. This is evident in the fact that the decree excludes the position of HJC Chairman/the President of High Court from retirement age that is provided for by the Judicial Authority Law. It is also evident in the fact that the decree gives the Chairman of the HJC broad authorities which empower him to exercise control over judicial affairs such as judicial inspection and disciplinary measures of judges. Participants warned against using the decree as a tool to intimidate judges by keeping them under the threat of dismissal should they try to be impartial and independent in the conduct of their duties and judgments.      

Attendees expressed concern over many other provisions in the decree that aim at strengthening the grip of the executive authority over the judiciary. These include provisions that undermine the genuine role that should be played by a high judicial council that is formed in accordance with law and functions independently of the executive, as well as other provisions that cancel the role of the Judges Club Association and deprive lawyers who classify as persons with disability of their right to hold the position of judge.  

In light of the above participants call for:

1.Repealing the Law by Decree No. 39 of 2020 on the Formation of Regular Courts, Law by Decree No. 40 of 2020 on the Amendment of the Judicial Authority Law, and Law by Decree No. 41 of 2020 on the Formation of Administrative Courts. These enactments impinge on the provisions of the Basic Law, rule of law, separation of powers, judicial independence, and norms of transparency and community engagement. 

2.Adopting and supporting the PBA’s position in boycotting the HJC established under the Law by Decree No. 40 of 2020 and establishing HJC in accordance with the Basic Law and Judicial Authority Law. 

3.Rescinding previous decisions on the dismissal of judges, respecting judges’ independence, and ensuring their constitutional and legal rights as enshrined in the Basic Law and Judicial Authority Law. 

4.Supporting the peaceful protest that is called for by the PBA in its statement published on 17 January 2021. 

5.Developing effective action and advocacy plan and establishing a follow-up committee which includes representatives of the PBA, Judges Club Association, CSOs and coalitions.