Annual Report - Palestinian Center for Human Rights

Undermining the Independence of the Judiciary and Attempts to
Dominate the Judicial Authority
Two separate issues - illegal detention and disregard of judicial decisions – have
culminated to form one type of infringement against the judiciary, with 2005
witnessing important and serious developments regarding the independence of the
judiciary and the rule of law. The most important of these was the failure of the
committee formed by the President on 14 March 2005 to develop the judicial system.
In addition, the executive authority, complicit with the PLC, continued to subvert the
independence of the judiciary by passing a new Judicial Authority law that reduced
the jurisdiction of the Higher Council of the Judiciary.
Three years ago, and as part of general reforms, the PNA passed Judicial Authority
Law #1 of 2002. 46 At the time, the law was considered a qualitative step towards
establishing a division of authority and the independence of the judiciary from the
interference of the executive authority. President Arafat issued Presidential Decree #8
on 14 May 2003, stipulating the establishment of the Higher Council of the Judiciary.
PCHR welcomed this step and considered it a positive development towards
restructuring the judicial system on professional grounds, as well as ensuring the
independence of the judiciary and the rule of law. However, on the practical front,
there was no notable improvement in the performance of the judicial system. The old
problems persisted: continued interference of the executive authority in judicial
matters; lack of monitoring of the various prisons and detention centers; continuation
of illegal detention; lack of implementation of judicial orders and decisions; and lack
of a forensic laboratory and pathology unit that are necessary to ensure a fair civil
court system. In addition, the past 3 years witnessed conflicts over jurisdiction
between the Ministry of Justice and the Higher Council of the Judiciary. These
conflicts provided an opportunity for the executive authority and the PLC to infringe
upon the independence of the judiciary.
President Mahmoud Abbas issued a Presidential Decree on 14 March 2005,
stipulating the formation of a committee to develop the judiciary and justice, and to
devise mechanisms for reform of the judicial system. The committee consisted of: the
President of the Higher Council of the Judiciary, the Minister of Planning, the
Minister of Justice, the Minister of Finance, the Minister of the Interior, the Head of
the Legal Committee in the PLC, the Head of the Bar Association, the Head of
General Personnel Council, a representative of the Independent Commission for
Citizen’s Rights, and Dr. K’meil Mansour in the capacity of secretary-general of the
committee.
The committee worked on preparation of a new judicial authority law to ensure the
independence of the judiciary and stop interference in the judiciary by the executive
authority. However, the committee was surprised, as was the Higher Council of the
Judiciary, with the approval by the President of Law #15 of 2005 on the Judicial
Authority. The law was signed on 11 October 2005, without referring to the Higher
Council of the Judiciary. This was considered an infringement by the executive
authority and the PLC on the authority of the Higher Council of the Judiciary. This
46
The late President Arafat signed the law on 14 May 2002. It was published in the Palestinian Legal
Journal on 18 May 2002.
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