On Tuesday, 25 September 2007, Mr.
Ismail Hanniyeh, the Prime Minister of the deposed Palestinian Government, issued a decision establishing a 'Supreme Council of Justice'.
The new body is to be mandated to manage the judiciary sector in the Gaza Strip and to nominate candidate judges, hiring them, and making decisions regarding their promotion and/or termination of services.
Al Mezan Center views with much concern this decision.
It asserts its inconsistency with the Amended Palestinian Basic Law, of 2005 (PBL), and the Judiciary Authority Law for the following reasons: First: according to the Palestinian Basic Law, the president of the Palestinian National Authority (PNA) is the only person who is authorized to issue decisions that have the force of law; as stipulated in article 43 of the PBL.
Second: this decision equals ousting of the existing 'Supreme Judicial Council' and its members in the Gaza Strip; a matter which no power in the Palestinian political regime is authorized to do.
The Palestinian law stipulates that the judiciary is independent and is subject only to the authority of the law.
Third: the decision under question is contrary to article 100 of the PBL, which states that'[A] Supreme Judicial Council shall be formed.
The law shall specify the method of its formation, jurisdiction, and operating rules.
The Council shall be consulted about draft laws which regulate any affairs of the Judiciary branch, to include Public Prosecution'.
Additionally, this decision is in breach of article 37 of the Judiciary Authority Law, which determines the composition of the Supreme Judicial Council as follows: The president of the High Court as president of the Council; The oldest judge serving as vice-president of the High Court as vice-president of the Council; Two senior judges of the High Court, to be selected by the Court's Council as members; Presidents of the Courts of Appeal of Jerusalem, Gaza, and Ramallah as members; The Attorney General as member; The Undersecretary of the Justice Ministry as member.
None of the members who have been appointed in the new Supreme Council of Justice according to Mr.
Haniyeh's decision is eligible for their office.
This formation therefore suffers a major structural deficiency and is baseless from a legal point of view.
Fourth: this decision is one of many decisions that lack any legal foundation by the de facto authority in Gaza, despite its assurances that it would respect the PBL.
Those decisions included the appointment of an Assistant Attorney General and new prosecution deputies.
The deposed government has also prevented the Attorney General from performing his functions after detaining him and subjecting him to degrading treatment.
This decision comes in the context of a series of steps which undermine the Palestinian judiciary, and will have fatal implications on it.
Al Mezan Center for Human Rights views this decision as lacking any legitimate basis.
It has been issued by bodies that lack the authority to make it.
It is also in breach the PBL and the other relevant laws and rules.
Al Mezan asserts that the respect the rule of law and the principle of the separation of powers necessitates full enforcement of the PBL and all the other laws.
Al Mezan therefore calls for immediate revocation of the decision under question, and for halting all the measures and procedures emanating from it.
Al Mezan also calls for ensuring the respect of the judiciary and enabling it to perform its functions and re-activating its institutions in accordance with the law.
Al Mezan reiterates its calls for keeping the judiciary out of the current political disparity.
The Center reaffirms the urgent need for allowing the Attorney General to assume his functions, and the Police, which is the sole body entrusted with law enforcement under the law, to return to their work without delay.
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