The Coalition for Integrity and Accountability-AMAN considers the “Government Administrative Committee Law” No.4 of 2016, in Gaza, issued by the Change and Reform Bloc in the legislative Council on June 21, 2016, to be blatantly inconsistent with provisions of the amended Basic Law of 2003 and the Civil Service Law No. 4 for 1998. It also conflicts with the Shati’ Agreement signed on April 23, 2014, especially in regard to putting an end to the internal political division and the formation of a national reconciliation government, not to mention that it is considered equivalent to establishing a new government in Gaza.
Reasons justifying the adoption of the new law were clarified during a hearing session held by AMAN for the legislative council in Gaza in the presence of Dr. Nafiz Al-Madhoun, Secretary General of the Council. Dr. Al-Madhoun began his statement by saying that the motives and legislative policies for developing this law were based on the fact that prevailing laws were drafted under a sound and uniform socio-political situation, which became difficult to apply under the current circumstances due to the internal political division. This basically drove the legislation council in Gaza to develop laws that can accommodate needs on the ground.
Al-Madhoun added that the National Reconciliation Government did not submit its ministerial program to the legislative council to gain its confidence. This makes it an illegitimate government and anything issued by it is also illegitimate. In addition, the power to appoint judges is granted to the President and Council of Ministers, which have not issued any decisions to appoint or upgrade any judges in the Gaza Strip (GS). This led to an administrative gap in the government systems as well as in the High Judicial Council, which called for appointing new judges to meet the needs of the GS. Accordingly, the legislative council was compelled to review all laws relating to appointing new judges. It also had to ratify the “Government Administrative Committee Law” in order to regulate the civil service affairs, the civil administration institutions, and the judicial apparatus represented only by the employees working in the Ministry of Justice, as he said.
In this regard, Mahmoud Zeidan, a lawyer at the General Personnel Council (GPC), confirmed the need for establishing the mentioned committee. However, the legislative council did not consult with GPC on this issue. Based on that, the GPC filed an appeal to the Supreme Court in its capacity as a constitutional court.
It is noteworthy that the mentioned law contradicts provisions of article 99 of the amended Basic of Law of 2003, which stipulates that:
1. “Appointments of judges, as well as their transfers, assignments, promotions, and accountability shall be as stipulated in the Judiciary Law”.
2. “Judges cannot be dismissed except in cases permitted by the Judiciary Authority’s Law”.
Consequently, provisions of this law grant a clear domination of the executive authority over the judiciary authority, thus constitutes an encroachment on the independence of the judiciary. In addition, the law is also considered an intervention by the legislative authority in the constitutional competencies granted to the government by the Basic Law. In this regard, article 69 of the Basic Law granted the Council of Ministers the task of setting up the administrative body, development of its structure, providing it with the necessary means, as well as supervision and follow up rights. This includes ensuring compliance with provisions of the law upon execution as well as taking the necessary measures in this regard. All of these powers are competencies of the Council of Ministers hence it is not permissible for the legislative council to intervene in regulating its details; a condition for realizing the principle of the separation of powers.
Within the same context, representative of the Shari’a Judiciary, Dr. Sa’eed Abu-Aljibeen, confirmed that to grant the task of control over the judiciary apparatus as explained above including appointments, promotions, assignments and transfers is considered a blatant violation of the law and a clear domination of the executive authority over the judiciary. However, Al-Madhoun indicated that the legislative council provided explanatory regulations along with the draft law stating that supervision over the judiciary apparatus is limited to the administrative judicial system within the Ministry of Justice, and does not include judges or the High Judicial Council.
The law also conflicts with the concept of legal liability of public officials before their superiors. According to article 2 of the mentioned law, the government administrative committee will only be accountable to the legislative council despite the fact that its members are public officials with ranks of deputy assistant and assistant undersecretary who should first answer to their ministers and government before being held accountable to the legislative council. In reference to this, the General Director of Planning in Gaza, Dr. Osama Nofal, indicated that for the committee to be accountable directly to the legislative council is considered an administrative flaw that weakens transparency of procedures followed by the administrative committee, since it granted it powers to appoint and transfer without referring to the competent minister. As such, this provides a way to transfer deputies and or directors of departments to other ministries that may have nothing to do with their expertise without their knowledge or the knowledge of the competent minister, which is very unmerited.
And in regard to the horizontal agreement with related legislations, it was discovered that there is a blatant contradiction between provisions of the mentioned law and the Civil Service Law for 1998 and its amendments. Similarly, there are contradictions to the Security Service Law of 2005, the Judicial Authority Law, and the Pension Law for 2005 and its amendments. This will certainly create a legal chaos in the application process, particularly in the process of appointments, complaints, and appeals.
For her part, Mervet Al-Nahal, who is a lawyer working with Al-Mizan Center for Human Right, confirmed that all provisions of the mentioned law are in violation with the Palestinian Basic Law. She further confirmed that no party has the right, including the legislative council, to annul provisions of the Basic Law since the Basic Law is the legal reference for their duties. She recommended that related parties resort to the judiciary to challenge the law and call for its cancellation since it is unconstitutional.
In another context, and in light of the recent disturbances faced by the Palestinian health sector exemplified by the death of a citizen, Fa’ida Al-Atrash, and the consequent strike by physicians employed by the Ministry of Health (MoH), AMAN sent a letter to the Minister of Health, Dr. Jawad Awwad inquiring about the agreement reached between the MoH and the Doctors’ Syndicate concerning regulating and addressing the issue of medical errors.
In its letter, AMAN acknowledged the importance of the abovementioned agreement, but stressed that it cannot take the place of an appropriate accountability system to address medical errors. AMAN, also referred to a number of past recommendations of studies it conducted in this regard, first and foremost, the need to establish an accountability system concerning medical errors where the system is based on the Public Health Law. In addition, AMAN stressed the importance of operating under a health insurance system, which will provide protection for citizens and physicians alike.
In addition, AMAN attached to the letter mentioned above a proposal for institutionalizing a system for accountability regarding medical errors. The proposed system was based on many rules and principles, most important of which include institutionalization of inquiry commissions. This entails: formation mechanisms, work procedures, preparations needed to ensure its partiality, specialization, and effectiveness. The proposal also indicated that health insurance needs to be mandatory, as well as the establishment of a compensation fund for those harmed by medical errors of all kinds. It also pointed out that it is important to determine the jurisdiction which the fund would fall under, the level of independence allowed, its management as well as sources of funding and expenditures, and in ways that ensure transparency, integrity and accountability at work.
Other recommendations mentioned by AMAN included the adoption of an integrated system for documenting medical errors among other health authorities, both at the MoH or among the Doctors’ Syndicate; make certain that related legislations are updated regarding medical errors; in addition to ensure that accountability committee, as well as work mechanisms and procedures for those committees are clearly defined. To also impose medical health insurance against medical errors, as well as to implement codes of conduct related to the medical field as precautionary measures for addressing this problem.
AMAN concluded its letter by expressing its readiness to provide any logistical or technical support needed. It also expressed its readiness to cooperate with all related parties in order to facilitate development of the aforementioned systems, which will give a push to addressing problems faced by doctors and citizens alike in this regard.