Demanding that the Supreme Constitutional Court Law be amended to maintain impartiality and independence of the Court and judges,
AMAN: Political authority uses the Constitutional Court to pass decisions not necessarily serving the public interest
Ramallah – The Coalition for Accountability and Integrity (AMAN) held a session to discuss a draft report on The Integrity, Impartiality, and Independence of the Work and Decisions of the Supreme Constitutional Court. As a sample, the discussion mapped a set of significant decisions entered by the Supreme Constitutional Court (SCC) and analysed how efficient and independent the Court and judges were. The event brought together representatives of legal institutions and human rights organisations, lawyers, journalists, and parties with interest in the judiciary.
In her opening statement, Hama Zeidan, Operations Manager at AMAN, highlighted that AMAN’s interest derived from the importance of the SCC as a real guarantee to protect the constitution, rule of law, and separation of powers. Especially given the absence of the legislature, namely, the Palestinian Legislative Council (PLC), the SCC has the final say on any disputes over the Constitution (Basic Law) either through appeals instituted before the Court or through its role as an interpreter of the provisions of the Basic Law. In particular, the SCC plays a key role in control over the constitutionality of laws and regulations as ordinary legislation continues to promulgated by the President, who uses an exceptional power to enact laws by decrees. Regulations are also passed by the government (Council of Ministers).
The President’s Office interferes with judicial appointments and dismissals, weakening the SCC independence
Echoing the report, participants highlighted poor independence of the SCC due to manipulated appointments of the Court president and panel members. A decision on first appointment is made by the President of the Palestinian Authority. Subsequently, a decision is issued forth by the President of the State based on a recommendation of the SCC General Assembly, allowing room for interference by the executive branch of government. The final decision on appointments is in the hands of the President. On the other hand, the Amended SCC Law provides that judges can be removed from judicial office in cases prescribed by law, opening the door wide to influencing independence, decisions, and pronouncements of the SCC judges. In addition, full control of judicial appointments and dismissals is in violation of the principle of the separation of powers.
Participants recommended that the SCC Law be amended, particularly in relation to the mechanism of appointing the Court president and members. Engaging all three branches of power, the amendment will safeguard impartiality and independence of the SCC and its judges. Merit-based criteria will be in place, ensuring that the Court judges are well prepared and experienced to consider constitutional cases. The process will not be limited to setting conditions and categories of appointments. A special financial and administrative regulation will be approved in accordance with the due process of the law. Promoting integration between the concepts of judicial independence and control, the Judicial Authority will be held to account for upholding this regulation. The SCC will be restructured to keep it away from being a subordinate to the Executive and make it an independence juridical personality. A code of judicial conduct for SCC judges will be developed and published in due form. An internal regulation for control over the SCC functions will be adopted, ensuring that trial proceedings are conducted in line with the law. This will also ensure that parties are able to file complaints against a judge if evidence demonstrates that they have been under external pressure while hearing their cases. An amendment to the SCC Law will put in place mechanisms and criteria for the appointment of SCC judges.
Discussants reiterated what the report said on the importance of transparency in the SCC’s work. The Court will adhere to publishing its annual report in a timely manner. Additional information on the work of the SCC will be included in the report, ensuring that citizens are adequately informed and have confidence in the independence and impartiality of the constitutional jurisdiction.
Interpretation of the PLC mandate shows an unstable legal basis of the SCC
The report examines the effectiveness and impact of the SCC rulings on political integrity. Some decisions of the Court have provoked widespread controversy among members of the legal community. These particularly included two declaratory judgements on the PLC mandate. Participants were unanimous in their view that certain decisions have changed the course of action of the SCC. For example, interlocutors discussed the SCC ruling on the PLC dissolution and how the Court dealt with the principle of legitimacy, which it has stepped back from. This shows that the SCC is exploited in narrow factional issues to tighten the grip on, and dominate, State institutions by the Executive. This raises questions on the SCC impartiality, independence, and influence of surrounding circumstances, especially the Executive, on all decisions rendered by the Court.
According to some discussants, in its declaratory judgements, the SCC has overstepped its competence of interpretation to decide on or abolish legal positions. Examples include rulings on the dissolution of the PLC, lifting of parliamentary immunity, and position of the SCC vice president. These decisions are not consistent with the case law of the Court. The fact that cases were subject to multiple interpretations has generated a public feeling of distrust in the SCC judgements. As a result, lawyers have been reluctant to bring cases before the Court. The SCC is supposed to play an effective role in the legal system, particularly in the absence of the Legislative Authority.
It was also noted that the political authority has made sure that its decisions would not be challenged or that it would be precluded from seizing control of appointments and dismissals. Compounded by the lack of will and poor control over the SCC efficiency, the Executive has exercised influence to interpret some cases to serve the political authority. Worth of note, some decisions rendered by the SCC contradict one another. Of these, the Court entered a judgement, confirming a law by decree that provided for preventing physicians from declaring strike. In other words, the Court has placed restrictions on a constitutional right enshrined in the Basic Law. Considering the freedom of movement, the Court forbade any constraints on this constitutional right. The SCC has served as a tool to dominate the State by a single faction.
