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Home > Issue 21: Democratic Formation in Palestine Periodic Report (6) >

Obstacles before the performance of function by the Judiciary Authority

2006-02-11
by Ahmed Mobarak el-Khaldi

A comparative study to the Palestinian case

from 1994 to 1998

In his book, the Republic", Plato equates between judges and doctors. He considers both teams are needed only by ailing societies.

In a statement made by Imam Malek Ben Anas, he quoted Omar Ben Abdel Aziz saying:

People are litigated to the extent of what they commit of evil acts.

When reasons or dissolutes, that are reflected in not abiding by rights and obligations become individual or social disorders, so what is the way to deal with them Is it through litigation in disputes because of the conflicted interests On what bases the judge will make his judgement Shall he balance between interests Or shall he rule according to his moods Or on the base of justice What are the guarantees for the performance of justice In general, what are the obstacles in the way of accomplishing justice, particularly in the Palestinian judicial system. We will try to answer these questions in this paper.

Introduction :

Judiciary system is one of the sacred issues for all nations, in all of the heavenly religions and even in most of the positive regulations. Whatever civilized progress is achieved by a nation, yet, the existence of what can resolve conflicts is a social need for the stability of relations and the prevail of justice among human beings in the sole society. Otherwise, law of the strongest will dominate while moods and selfish interests will rule overt the relation between people. Consequently, order will not characterize the life of a modern state which is identified with the depth of its interrelation relations to the extent where if there is no independent judiciary which is capable of disentangling clashes in relations, turmoil will dominate to threaten the continuation of existence and development in the political entity of any state.

Many people see the state as a bunch of jobs and specializations for the benefit of its people. Jobs are distributed among the state s different institutions. The chief important engagement is the judiciary job to achieve and protect public and private interests. Engagement of the states are divided into three main issues:

- The authority which legislates laws.

- The authority which implements laws.

- The authority which litigates in conflicts over implementing laws and what they stipulate, amend, or cancel of rights or of legal centers to achieve compatibility of interests and stability in relations of the society of any state.

Of the historical stability for a political systems in their constitutional inaction, we find that till a late time of the 20 th century, the dominant view towards legislative authority is that the judicial authority is part of the executive authority and not independent from it. This is because of the considerations that both authorities (executive and legislative) are implementing law and reinforcing its commitment. Who traces implementation of the principle of separation between both authorities, will realize the relative great developments in the degree of diversity of systems; the status of judicial authority complete dependence on the executive authority, has shifted to its partial or complete independence from the executive. However, the development has ensued its costs from the freedom of the people, until it reaches the necessity for judiciary independence, the chief guarantee to achieve justice. The progress was for the sake of implementing separation between authorities. Afterwards, separation of authorities has become the concept upon which democratic constitutional systems are based, because democracy, in its theoretical bases and general concept, is based on the need to separate functions of the state s general authorities. Separation should drive to independence for each authority to practice its origin specifics and should not aggrieve specializations of other authorities. In practicing specializations, each authority should implement its law which is a pact of legitimacy for its establishment, the base for its legal existence and the practice of specializations. Any authority is illegitimate if it breaks law in its function since its acts will be considered legal to the extent of its inaction of law, and its prevalence of provisions of law in its materialistic behavior and legal decisions which is the mission of the Judicial authority should be certain of. Judicial authority has also the mission of monitoring legitimacy of work by each of the state s authorities. All should take place while considering the concept of separation of authorities to guarantee independence of judicial authority in monitoring legitimacy of work by other authorities and individuals. Relatively, the concept of separation is related to the level of power and intervention of the authorities in the function of the judiciary authority, particularly by the executive. Independence of judiciary authority, includes independence of the judge and judiciary in the literature of internal and international knowledge. We will explain that in the coming paragraph:

Independence of judge and judiciary:

Independence of the judge means his objectivity, integrity and being non compliant to any influence. Among means of influence, is the way of appointing the judge and the party supervising over him, in addition to the dominant party from a professional, administrative and financial aspects. Thus, independence of the judge has many forms, some of which related to his conditions and qualifications and situations of his job which may affect his integrity and independence, while confronting the state or any intervention by social groups or centers of power. Moreover, it guarantees reverence of the judge in regards to the society and assure his objectivity and independence from moods.

Independence of judiciary means the free practice of the judge specialiazations without any interference from both the administrative and executive authorities, in addition to not abiding by anything other than law and his conscious while implementing law.

Consequently, independence of law does not mean any privilege to the judiciary authority, however it is the right for every citizen to establish and prevailing justice. Due to significance of independence of the judiciary, it gains attention by several international documents such as: declarations, agreements and protocols which call for assuring its independence. UN Charter has announced the determination of peoples to create the conditions in which justice is accomplished. Court of Justice System stipulates the necessity to form the court of independent judges. Article (8) of the International Declaration of Human Rights recalls the right of every human being to recourse to an independent court for justice. Of the international documents which concern for highlighting the importance of judiciary independence, the International Pledge for Civil and Political Rights article (14). The concerns are also demonstrated in the Experts Draft of Principles Pertaining Independence of Judiciary which was issued in Chili in 1981. The draft defines independence of judiciary as follows:

  • Every judge is free in ruling over what is presented before him of incidents according to his conception to facts and law away from any external influence whether compulsory or through direct or indirect pressures from any part or for any intention.
  • Judiciary is independent from executing and from direct legislating or through reviewing all the issues of legal nature.

International Declaration of Human Rights which was issued by Montreal Conference in 1983, defines independence of judiciary system as the judge freedom in deciding over a sue without discrimination, influence or being compelled to any pressures or temptations. Judges shall be independent towards their colleagues and supervisors and from any organizational charter in the judiciary system. Judiciary authority shall be independent from both the legislative and executive authorities. Looking into judiciary decisions is normally restricted to the judiciary authority alone. Exceptional courts are prohibited from being established and every person has the right to appear before ordinary courts. Military courts are entitled to deal with crimes committed by members of the armed forces, while always maintaining the right to appeal against their verdicts before courts of appeals specialized in legal affairs. Executive authority has no supervision over the legal authority. Judiciary system has jurisdiction over all disputes and its jurisdiction should not be terminated. Judges are not liable for isolation, and in their education, they are subjected to firm restraints. A judge shall not be interrupted because of his job and judges are prohibited from affiliation with political parties.

Among the remarkable work of UN in respect to independence while accomplishing justice, is the draft of political principles which was issued by the UN 7 th Conference to ban crime and the treatment of civilians (Milan) in 1985, in regards to independence of judiciary authority, freedom of expression and establishing the judiciary system s societies in terms of qualifications for electing and training judges.

Constitutions of the world have been consecutive in stating the principle of the judiciary independence and the phenomena of esteem and respect to the judiciary authority. For example, article (165) of the Egyptian constitution stipulates that judiciary authority is independent and article (166) specifies independence of judges; article (97) of the Jordanian constitution; article (76) of the Moroccan; article (101) of the Italian; article (65) of the French; article (64) of the Tunisian; article (132) of the Turkish; article (76) of the Japanese and articles (131, 133) of the Syrian and others.

Separation of authorities and independence of each authority in its function:

According to what has been mentioned, the significant role of judiciary system has become obvious in monitoring accuracy of practicing specializations of general authorities, their inaction of laws and their judgement over what arises of disputes pertaining to reinforcement of law; whether the disputes are between or among ordinary individuals or between them and other private or public artificial personalities, or between public authorities or among them. Absolutely, there is neither existence of authorities separation, nor a role of an independent judiciary system in absence of the rule of law. Non of the authorities has legitimacy except of law which establishes general authorities and defines their specialties. Judiciary system is the monitor to legitimacy of function by public authorities and individuals. One of the main judiciary system function is to resolve conflicts between public authorities, in fields of specialization, whenever a public authority transgresses specializations of another authority. Judiciary system s mission is to resolve conflicts in terms of individuals type, materialistic and moral rights and freedoms. In resolving disputes, judiciary system implement legal system s standards which are culminated with the inaction of fundamentals of the constitutional or basic law and then the ordinary law, general charters or regulations and individual resolutions. This is because the group of these legal standards, in their various gradual levels, form the legal system which organizes establishing the general authorities and demonstrates specialization and mechanism of function for each of them. Consequently, legal authority implements the enacted provisions of the legal system which decide the range of legitimacy for the function of each authority or public administration. Provisions of the legal system do not permit transgression by any authority or its control over specializations of another. They also set the extent of legitimacy of function by individuals of the society. Judiciary authority judge in cases where there is an infringe of legitimacy when individuals practice their rights and freedoms. Judiciary does no permit offensing rights and freedoms. Also, it does not allow infringing specializations of one authority by another, since it may lead to dictatorship which was the base for the principle of authorities separation. Thus, specializations have been divided between the general authorities in a way that one authority may not affect another in performing its functions outside what is stipulated by law that accomplishes public interest.

Hence, the meaning of separating authorities becomes obvious; specifying legal authorities in resolving conflicts; decentralization of power in the grasp of one authority the may become the rival and judge at the same time. Consequently, it is very significant that judicial sector enjoys equality with other major institutions of the state, in order to monitor the inaction of laws and evolving infringes to law regardless to their perpetuators of the state public administrations or any individual. It is true that some popular levels may exist for monitoring, such as the public opinion monitor over performance of public authorities to their fields of specialization. Some official parties, affiliated with the state s legislative or executive authority, may exist for monitoring. However, all of them do not replace the supervision by the judiciary authority over the sound inaction of law and applying its rule on disputes, since law is the justice title. But, in order to achieve justice, the judge and the judiciary system should be freed of all the influences and obstructions before conducting the judiciary function in prevailing justice according to law.

Independence of law and influences on its accomplish:

Judiciary in language means controlling and resolving a thing according to its standards and terminating it. From here advanced the explication that judiciary means resolving and ending the dispute between two rivals. Opponents could be regular persons, or private or public artificial persons. The judge is the person who conducts the rule of law, in regards to his conception to parts of a divide. He is the person who attempts to accomplish the spirit of legislation and the public administration which set the law. Out of here comes the gravity of his mission and the need to be contributed to knowledge, capability and integrity to perform the job in an objective way. He should judge away from any influence, whether his interests or external influence by the various authorities which contributed to his designation, promoting, granting him allowances, responsible for his accountability or dismissal. Therefore, he should feel safe and stable in his work without any threat, in order to assure his independence. If the judge accomplish his independence, then independence of the judicial system will be achieved.

Whatever the shape of the authorities separation is applied in judiciary system, yet, there are certain relations between the judiciary and other public authorities of the state that affect the extent of independence of the judiciary authority. The effects are general in all the systems including the Palestinian judiciary system. There is the impact of the legislative authority interference on organizing the judiciary, or the executive interference on sponsoring the performance life of the judge; influencing judgements and their implementation in this respect, in addition to the impact of personal, social and legal influence. I will summarize them into two points: 1 st, independence of judiciary system in organizing other authorities and 2 nd influences on independence of the Palestinian judiciary during the rein of the National Authority.

First - Independence of judiciary system in organizing other authorities

In order the separation of authorities meets its results for the public interest, an authority should not transgress another and should not be entitles in its practices specialization of another authority except within the limits of law and the goals for the separation of authorities. We will try to clarify the need for independence of the judiciary authority in practicing its judicial function of resolving disputes and monitoring legitimacy of functions by the other state authorities in a way that guarantees the judiciary independence, objectiveness and ability to judge behaviors of public authorities and individuals and subjecting all of them to the rule of law.

Views may differ over the extent of constitutional independence for the judiciary from the legislative or executive authority. However, what is certain in all the legal systems, functional independence of the judiciary is valid in all constitutions which stipulates the solid or flexible separation where authorities cooperate, share power of jurisdiction and influence for the interest of the state.

Of the influencing procedures on independence of the judge, is the interference by the legislative authority in organizing the assignment and guarantees of the judiciary functions for judges, and fields of specializations for the parties which sponsor judges. Moreover, there is the interference of the executive authority according to law, in appointing judges whether it is conducted in isolation or in participation from other authorities. Influence on the executive authority may take place immediately through participation in the judiciary function, or through changing the approach of courts verdicts before or after their issuance or during their implementation in a breach to law. In addition to that, there is a negative influence from press, public opinion, institutions of civil society and political parties.

**Of the deep influential methods in independence of the judicial system, is the extent of administrative and financial independence to judiciary system while facing other authorities particularly the executive authority which is given this specialization by law. Financial and administration independence have a more comprehensive meaning than the mere stability of the judge in his judicial post and his immunity against dismissal or accountability. The meaning however, extends to include a guarantee of prohibiting influence in independence of judicial system by interfering in the budget of the judicial apparatus or interference for appointing employees of courthouses or the financial and administrative supervision on them. Yet, it is certain that the absolute separation between authorities and the absence of influence is an illusion. Public and executive authorities are not neutral in dealing with the judicial system. Also, when the legislative authority reviews general budgets, it is not neutral even if it is less wishing to dominate than the executive authority. Thus, consultation and cooperation between the authorities is essential. Consequently, consultation and cooperation will not infringe the judicial system s professional, administrative and financial independence which we will come to explain.

  • Independence of judicial system from the legislative authority:

Constitutions are concerned to include independence of judicial system at the core of constitutional materials. However, they do not define accurately the approaches of judicial system and leave defining and organizing the approaches of judicial system for the normal legislature. Accordingly, influencing the judiciary authority by the legislative authority could be through the authority of the legislator in organizing approaches of judiciary system in terms of their formation and the conditions for appointing judges, managing judiciary system and transferring judges and through all what influence the functional life of the judge.

The possibility of influence cannot be downgraded because the executive authority is restricted in conducting its function in legislating to judiciary authority substances of the constitution that define the judiciary parties and specifying them to resolve certain conflicts. This because the executive authority can influence independence of the judiciary system by re-structuring or re-organizing. There are practical examples for the misuse of the these legislative specializations. An example to that, what took place in Sudan where due to the executive jurisdiction for the legislator in organizing judiciary authority, several many judges were arbitrary dismissed. Also, in Egypt on 1967, 149 judges were dismissed in the same way. However, in Libya and according to the judiciary system no 51 of 1976, a committee was formed by minister of justice with membership of the attorney general and head of the legal inspection department on claims or reforming judiciary system and office of the attorney general in addition to distributing legal men and members of the office of attorney general among courts and attorney general offices (m2/1). Third paragraph of the article 2 considers those who are not included in decisions of re-appointment, as retired with the power of law. Article (5) of the same law stipulates that it is not permitted to impeach in any way the decisions which are issued according to previous item. The danger of this negative interference by law in the judiciary function is not comforted by article (6) of the same law which gives the executive authority (ministerial council or minister of justice) the right to appoint in governmental posts, some men of the judiciary or office of the attorney general. In this issue, executive authority is entitled to the an estimated absolute jurisdiction in appointing in other jobs where the compelled to retire judge or member of the attorney general office. A fourth example to that, what took place in Jordan according to Law of Independence of Judiciary System no. (19) on 1955 which stated the formation of committee presided by minister of justice to hold consultations and cleansing and clearing the judge (m46). The committee were solid and liable for impeachment before a judiciary commission. The issue was repeated in article (3) of the special law over organizing shari a regulatory judiciary no (37) of 1970 and in the law for Independence of Judiciary System no (49) on 1972 which gave the ministerial council the recommendation or proposal by minister of justice to decide dismissing or transferring any judge article (44).

Undoubtedly, these jurisdiction of the legislative authority in organizing the executive authority (sometimes the legislative authority mandated the executive in organizing judiciary system even with a restricted mandate. Some of law writers see a danger on independence of judiciary system from the legislative authority itself since the legislator can influence independence of judiciary system under the pretext of re-organizing judiciary system (as mentioned before). Therefore, how can the judge face practices of the legislative authority which infringe the constitution, if the judiciary system itself is subordinate to the legislator and under his mercy.

Nevertheless, in fact no absolute independence of the judiciary system can be achieved in real life, however, certain restrictions and regulations can be put. That is restricting the inaction of any amendments to the status of the judiciary system and judges that is put by the legislator. Law stipulates that amendment are not immediately put in force but after a period of time, as a legislative round for example. And we give the judiciary commission an extend of independence in order to deal with the new order. Consequently, a scope of independence can be achieved in a way that meet the objective legitimacy and public interest.

The most aggressive phenomenon to the judiciary system is the practice of judiciary functions by either the legislative of executive authorities. Independence of the judiciary system cannot be accomplished in the judiciary function if its jurisdiction does not include all the disputes whatever they nature, subject and part are. Independence of the judiciary system means that no external parties outside the judiciary system can interfere in it. Independence of the judiciary system means enabling it to achieve justice. Consequently, the legislative authority, while practicing its constitution right in legislating, distributing jurisdiction of the judiciary system and organizing its apparatuses, should evade adopting any legislation that may influence the judiciary system while performing its duties in establishing justice; harming the individuals ability in practicing their natural right of having a judiciary or the presence of their natural judge. Accordingly, if the legislator overpassed the objective constraints for the legitimacy of his job in legislating. Any legislative function which overpassed legitimacy is considered illegitimate and non constitutional since depreciate the constitutional right of the judiciary system. On the first hand, the legislator should confiscate the right to the judiciary system or to restrict it with a non constitutional provision. Confiscating or restricting the right tot judiciary system contradict the major legal elements of the state. Consequently, several constitutions states the guarantee to the right to the judiciary system. An example to that, article (68) of the Egyptian constitution the right to the judiciary system is guaranteed to all the people; Article (8/4) of the Syrian constitution; article (166) of the Kuwaiti constitutions; article (60/b) of the Iraq constitution and article (101) of the Jordanian constitution, etc.

Importance of the role of the judicial authority comes from it liberation from any possibility to be affected negatively by the legislative authority due to constitutional measures. Judiciary system has the right monitor the legislative authority itself and judging its functions to be legitimate or illegitimate. Judges monitor to function of the legislative authority is part of the judiciary jurisdiction. Moreover, it is one of the clear phenomenon for independence of the judiciary system in facing public authorities in the state.

Constitutional systems are different in approving this item and the extent of adopting the constitutional supervision over constitutionality of the legislative authority function. However, all adopt one or more of the monitoring systems in their direct form of judicial monitoring by claiming non constitutionality of laws as stipulated in article (145) of the Syrian constitutional which gives high court the jurisdiction of looking into constitutionality of laws in the mention way in text. Another example, is what is mentioned in article (175) of the Egyptian constitutional which stipulates: high constitutional court alone is responsible for judiciary supervision on constitutionality of laws and charters. The court will be responsible for explaining the legislative texts as is stipulated in law. A third example is what appeared in the draft Palestinian Basic Law in Article (94).

Judiciary supervision over the function the legislative authority may take a direct following shape through the rejection by courts to implement a legislation on a certain dispute because of its violation to the constitution.

This shows the range of the importance of guaranteeing independence of the judiciary system before legislative authority from a legal and scientific aspects.

  • Independence of the judiciary system in facing the executive authority

Constitutional systems are concerned in assuring independence of the judiciary authority in facing the executive authority namely because historically, the two authorities used to form one authority and act on implementing and enacting law. The administration implement law because of its legal commitment to apply the rule of law in its decisions while administering the country. The judiciary system reinforce law in cases of the eruption of conflicts between natural individuals or between public or artificial personalities. The judiciary system will replace the rival who do not respect law which facing the other party to forcing the implementation of law.

Gradually, both the judiciary and executive authority became independent from each other. Legal stipulations regulate independence of the judiciary system from the executive authority. Moreover, they include detailed texts protecting this independence since executive authority is not permitted to interfere in any functions of the judiciary system that may cancel or obstruct it but the executive authority should assist in implementing the rule of the judiciary system. Despite all of that, we find the relation between both authorities very close since it seems in some systems to take the shape of the provision of a minister in the ministry, normally minister of justice who is specialized in the judiciary affairs.

However, some academics and politicians see in this relation a danger on independence of the judiciary system and subjecting it to political party. Other systems appoint head of the judiciary authority as the state president, like the French constitution articles (5,64,65), which make the president the head of the supreme judiciary council, since he cares for independence of the judiciary system and for the respect to constitution. Absolutely, which is applicable in one country is not applicable in another. Moreover, some other systems prefer to appoint head of the judiciary authority as its higher judge. They see that important for the protection freedom, independence of the judiciary system in facing other authorities where all fields of specialization pertaining to affairs of the judiciary system to its people themselves, whether through a higher council consists of them alone or from the majority of them. It is clear that involving members of the executive authority in sponsoring affairs of the judiciary system, may influence in independence of the judiciary system. Taking a look to a number of laws which regulate the executive authority, we find that they include a lot of methods through which the executive authority can influence affair of the judiciary system. This could take place through the supervision of the executive authority in a way or another on the judicial authority, such as granting minister of justice the power to appoint judges, or the right in delegating heads of courts, or demanding a disciplinary sue against judges, or appointing head of the Court of Cassation (its various names: High Court or Court of Cassation) and other jurisdictions and interferences. Most system make the presidency of the high council of Judiciary for an executive member, such as the Syrian constitution article (132) which entitled the presidency to president of the state. In Libya the presidency was entitled to the leading revolutionary council who mandates Minister of Justice.

Influence of the executive authority in independence of the judiciary system could be through obstructing the judiciary regulations by the executive authority. Consequently, we find the legislator in several system to organize a legal protection to the judiciary executions by stating the punishment of whom who use his influence to ban or obstruct the execution of the judiciary sentence. For example, article (122) of the Egyptian penal code stipulates that every public employee who uses the power of his position to halt the implementation of a verdict, or order, demand from a court or any issued order by the competent party, shall be subjected to punishment. Another example is what is stipulated by article (361) of the Lebanese law which stipulates every employee uses his authority or influence directly or indirectly to obstruct or delay the implementation of laws, regulation or collecting fees, or taxes or implementing a judiciary verdict should be punished by imprisonment.

Also, independence of the judiciary system could be affected by the executive authority through what it is decided by several systems of the executive authority of jurisdiction in organizing field of specializations of the judiciary system. Moreover, several constitutions state to give head of the executive authority a reduction or partial obstruction of the provisions of the judiciary system in cases special amnesty according to consideration decided by the executive authority. In practical life, this permission may be misused to affect negatively on provision of the judiciary system and need for their execution. For example, article (149) of the Egyptian law stipulates that President of the Republic has the right to issue a special pardon or reducing the penalty. Article (149) of the Tunisian constitution and article (17) of the French code stipulates in general that President of the republic has the right to issue an amnesty. Article (77) of the Italian code stipulates he may be permitted to issue a pardon to reduce the sentences . Article (72) of the Indian code said the right to grant amnesty or postponing or pardoning the implementation of a sentence and also the right to halt or cancel of reducing (replacing) the issued sentence in convicting a person because of what he commits of a crime in:

  • In all cases where the penalty or the verdict are issued by the military court.
  • In all the cases where the penalty or the verdict are issued in a law offence related to the issue of interference in specifics of the executive authority of the federation.
  • In all cases where the issued verdict is death penalty.

In Palestine, article (23) of the constitutional system for Gaza Strip of 1962 states that general governor has the right to pardon or reduce the sentence. This issue is stated in article (38) of the constitution of 1952 and approached by the Draft of Basic Law in article (59).

Of the methods of the executive authority influence on the independence of the judiciary system in its rule, is the interference in the function of judges by dismissing or retiring them before reaching the legal age and before the judge loses one of the requirements for appointing him. Therefore, of the important methods to protect judges and guarantee their neutrality and integrity to the utmost extent, is preventing the executive authority or any other authority from the ability to threaten their earning of livings and cut the main source for their living conditions. It is also prohibited to threaten stability of the judges jobs through their arbitrary administrative transfer particularly by the executive authority. Accounting for the stability and the prevention of intimidation, many legal systems concerned with the text in a way that assures fixing the judges in their posts and feeling secure in their jobs. In addition to the fact that the issue will protect the specific interests of the judge, it protects the interest of retired judges and assure the good prevalence of justice among the people.

For this reason, many legislations account for the principle of the prevention of isolating the judge or ending his work or forcing him to retire in conditions others than stated in law or according to his free will. Thus, we can minimize the influence on independence of the judge who will be subordinate to law and his conscious in interpreting the law. Of the examples in the constitutional system the following articles: article (64 ) of the French constitution, article (78) of the Japanese constitution, article (168) of Egyptian constitution, article (67) of the Egyptian Judiciary System, article (163) of the Kuwaiti constitution, article (85) of the Moroccan constitutions and article (89) of the Iraqi constitution. Also, international declarations were concerned for the independence of judiciary system such as the international declaration which was issued by international conference pertaining to independence of justice in Montreal on 1983. Also, many internal constitutions in laws which organize the judiciary system, when they decided regulations to guarantee independence of the judiciary system such as inability for dismissal or transfer and empowering delegating with legal conditions that guarantee the approval of the judge for a restricted period of time while being subjected to supervision and in order not to threat integrity of the judge and his independence.

  • Independence of the judiciary system from the influence of public opinion and media:

Media is one of the important methods for expressing approaches of the public opinion and share in its formation and influence it. Consequently, through public opinion, media can play a great influential role on the judiciary system. Maybe what took place in the Palestinian territories in Gaza on July 1988 and February 2, 1999 is a good example to the range of the influence by the public opinion which the media participate in. It is true that it is desired that public opinion will monitor activities of the judiciary system to achieve a kind of popular monitoring through permitting to publish through the different media means what is taking place in the court of measures and facts, to enable what is not attending the court session to follow up what is taking place in courts while they are looking into cases of public. However, this influential means in the public opinion can rely on sentiments more than being based on the legal evidence in various cases. Accordingly, this freedom should not be misused in a way that may affect obstructs justice, particularly when the public opinion send writers who lack for the technical and legal awareness for what is conducted by judges. Then, the writers may affect negatively the independence of judiciary system. Consequently, many legislations are concerned with interference to organize methods of influencing the public opinion to guarantee its objectiveness and its correct realization and to protect the right of media to expose misconduct and the defendant s right in not being sentenced according to sentiments of media writers and their desire to incite the public. Therefore, organizing the freedom of expression and media aims at finding a balance between the legitimate interests, therefore, the press will not adopt statements that reduce prestige of judges and independence of the judiciary system in making their legal objective decisions.

  • Self-independence of the judge:

Despite the importance of what is mentioned for independence of the judiciary system, yet, independence of the judiciary system cannot be achieved without the feeling by the judge that he is independent towards himself and towards authorities and other social, political and material influences. The judge should look at himself by the end as independent and what assists his feeling is the support by media, public opinion, institutions of the civil society and legal organizations. Achieving independence of the judiciary system needs an action by several individuals, institutions of the civil society and workers in the legal field on the level of knowledge and implementation such as colleges of law, lawyers and press. However, it should be realized that independence of the judiciary system in Palestine cannot be achieved through building its institutions and its practical practice in a short time. Independence of the judiciary system is an accumulated process that includes building institutions and the citizen, judge, judges assistants of men of the attorney general office, lawyers and the department for litigation who implement law. In fact, the role of the judge is not restricted to the literal inaction of law, but it is more than that.

It is true that the judge applies law according to the theoretical principles of democracy; he declares the rule of law when applying it on a certain occasion. However, from a practical perspective, he has a big role in putting law in a certain shape restricted when he explains the general abstract legal base to a certain case under inaction. Some argues that the judge is practically the person who set law taking into account that judiciary system and courts are in particular explaining laws for implementation sues under study. Also, it do not issue general decision that are applied to similar disputes and do not issue charters and regulations but embodying the rule of law on the dispute under discussion before courts.

This dangerous role of the judiciary system makes intervention into the practice of the judiciary system harms in the depth the function of courts in achieving justice and minimizing the right of individuals in fair litigation. If it is not permitted for the judge to replace the role of the legislative authority after making the verdict. He should be restricted to making the rule of law on the presented conflict. He should not replace the rule of law with another verdict or to amend the rule of law. He is only restricted to interpreting the vague text and rid it out of the abstract and generalization to the specialization on the state of conflict which is presented to him. In addition, while the judge is justifying legally his decision may criticize the text of law and expose its misconduct in a certain state of conflict and he may guide to complete the existing legislation or advising its replacement, amendment or cancellation due to the conscious of justice. He may express what he believes to affect law of an infringe to principles of justice and fairness in reasons of the verdict and not in his decision. This issue cannot be described as and interference by judge in the work of the executive authority, but a point of view which he expresses and have a practical value and impact in the formation of the general confidence which is needed by the legislation to gain its social legitimacy.

This critical role of the judge should be protected from itself. Of the methods to protect it, is the judge responsibility in a way that accounts for requirements of its independence, to enable the judge the establish justice. Also, it should be accounted that its independence is not a goal by itself but a method to protect rights, freedoms, centers, specifics of individuals and public authorities.

There is no contradiction between independence of the judiciary system and the possibility for accountability. Independence does not mean the absolute unaccountability or not subordinating the judge to moods and interests that are not stipulated by law or giving interests the priority. Thus, responsibility and independence restricting each others in a balance way between authority and responsibility. The guarantee to the judge independence needs him to remain connected to the principle of responsibility. Independence does not veil accountability or the responsibility of the judge.

For this reason, systems take relatively the decision over accountability of the judge. These systems could be summarize in three points:

- Systems takes the accountability of the judge with previously defined limits, constraints, conditions and measures.

- Other systems decide to refrain for practicing accountability for judges on high level or not accounting them for certain reasons.

- Third system decide that the state is responsible for the mistakes of the judiciary system. It should be understood that what is meant with the non responsibility of the judge is restricted to mistake which he commits while practicing his work. However, outside his work he shall be accounted for personal mistakes. The systems differentiate between his criminal, civil and disciplinary mistake.

Some systems decide a kind of immunity for men of the judiciary system in terms of their criminal responsibility according the nature of the judiciary system s job, the role of the judge in the society. The systems specialized for them a regulation for integrating or sentencing them. For example, articles 96 and 106 of the Law of the Judiciary System in Egypt.

However, for the civil responsibility of the judge, he bares the legal ramifications for his civil mistakes according to the general bases of the civil responsibility, since he is a human being who may be correct or wrong. In order not to misuse this method, some system decide not to account the judge for his civil actions while practicing his legal specifics. Other systems stipulates certain situations to contest with judges and decide special measures for this contest.

For the judge disciplinary responsibility, it is supposed to be based on the mistake or perverted behavior of the judge. Legal systems consider high level bases for the behavior fundamentals when the judge under accountability. The judge status and his super role underline firmness in his accountability in order to keep him away of suspicions and from may breach the good order of the judiciary system s job. However, the judge painstakings, or his mistake in interpreting law or accessing evidences are not considered as a diversion in his behavior and do not need a disciplinary accountability for the judge.

Concerning for the prestige and independence of the judge, some systems takes the disciplinary accountability of the judge before a judicial party and in a way that restrict viciousness against the judiciary system. Many other systems, and for concerns over the prestige of the judiciary system, takes the end of the disciplinary sue if the judge is resigned or forced to retire.

  • The need to practice by the ordinary judge to his field of specialization alone:

Of the guarantees for the independence of the judiciary system the existence of the natural ordinary judge. In other words, the refrain to practice the role of the judge by any other party or authority of the general authorities. This foundation is based on the idea of proficiency in acknowledging law which regulate the relation between the individuals and the law of the judiciary system ethics.

Of the constitutional regulations which state that the job of the judiciary system should be initiated by ordinary judges such as the Italian constitution article (102) where they chose according to the charters which organize the job of the judiciary system. It is not permitted to appoint exceptional judges or judiciary system.

Consequently, the base for specialization in the judiciary system comes to restrict the judiciary system function on restricted legally qualified sectors which have experience and expertise that enable the judge to conduct his field of specialization with high and effective efficiency. The presence of the ordinary qualified judge affirms independence of the judiciary system since because of that the judge will be able to establish justice while judging in disputes according to law.

By then, criticism directed to special and exceptional courts are understood where for various unjustified legal and democratic reasons, the door will be open for non specialized judges and enable other than the ordinary judge to look into conflicts. Consequently, equality between the contested person will not be balanced. Moreover, it is an attack to the field of specialization of the ordinary judge when others share him specialization of the judiciary system during conflicts. Thus, integrity and independence of the judiciary system will be harmed.

  • Neutrality of the Judge to assure independence of the judiciary system

We have previously noted to the critical role of the judge while judging between the conflicts of interests and specialization between the individuals and general authorities for the sake of achieving justice. Fairness required the judge to be neutral and have integrity. For this reason, internal laws and international charters show concern to the need for the presence of integrity in the judiciary system as the basic guarantees for justice and safeguarding human rights.

Integrity of the judge means his liberation of all the selfish and sentimental feelings, interest and the feelings of kinship or animosity. Therefore, most of the legislations guarantee precautional regulations to face any fear that the judge may be influence in his judgement by his tendency towards feelings of endearments, interest, animosity to some parts of the dispute. For example, several legislations state the cases where the judge is not fitting for judgement. Normally, their mention these cases such as kinship, alliance for a certain extent or where the judge or his wife has interest with some of the parts of the conflict and other stipulated cases in law. Consequently, in presence of suspicions to have one of the above mentioned cases shall keep the judge away from looking into the conflict for the possibility that he is not serious. The presence of animosity or endearment between the judge and a part of the conflict may not lead the judge to rule without being biased and thus harming his integrity. yet, the animosity or endearment should be personal to the judge and it is not enough to simply agree or disagree in intentions and positions. This issue is subjected to assessment by the court to decide over its impact on neutrality or integrity of the judge. Regardless to the fact that the judge neutrality means that he should establish his judgement on evidences and to be restricted to the pretext presented before him, it is not permissible that he rule according to his personal knowledge of the evidences. Also, he should justify his judgements and to restrict to ways of proving according to law. However, a broad assessing authority remains for the judge in what he rule over according the general basis of law. When he make a judgement pertaining to special detailed cases, he derives the provisions from law and enact them on the fact.

The delicate status of the judge and the gravity of his role require a high degree of insight against anything that can touch his neutrality, objectivity and integrity. Therefore, many systems take extra care to protect the judge from outside and inside effects that can rise in relation to his own interests. The various legislatures prohibit the judge from practicing actions that contradict with his duty in achieving justice between the conflicting interests, even if those actions have no relation with the judiciary. For example, legislation bans the judge from exercising activities that can affect the independence of the judiciary. Systems also impose on judges to devote their full time to judiciary work; they do allow judges to practice any commercial or political activities, or even express political viewpoints that might support one party over another in the society, thus causing some kind of prejudice for those supporting his viewpoint.

The Other: The factors having impact on the independence of the Palestinian judiciary (94-98)

Since the beginning of 1994 and until now, the Palestinian society has passed through numerous events, in terms of its internal and external relations dealing with areas that can be indictors of the performance of the Palestinian judiciary and its role in consolidating the Palestinian political entity on democratic basis; the factors inherited in the Palestinian judicial system had a major role in impeding the performance of the judicial authority during that period, especially in the confusion of legal rules that control the judicial authority and the differences in systems that led to the silence of its courts over political arrests and conducting exceptional court trials, and the intervention of the executive authority in the jurisdictions of the judicial authority. There was also the effect of the Palestinian public opinion on the courts and the other factors that affected the independence of the Palestinian judiciary; we will try to summarize those factors in the following points:

1- The differences in political legislation and lack of a unified laws:

The observer following up the elements of the legal systems applied by the Palestinian judiciary in the West Bank and Gaza districts under the PNA finds that they consist of various elements and codes inherited from the Ottoman era; the (International) British Mandate in Palestine ratified the application of all those laws, except those canceled explicitly. The subsequent Mandate laws did the same and remained partially in the West Bank. Upon the union of the Palestinian West Bank with the Jordanian Kingdom, a legislation movement started and canceled most of the Ottoman laws, and kept some of them, in addition to the British-style legal rules that were in use during the Mandate. In Gaza Strip, the situation was different; most of the Ottoman and British Mandate laws were kept in force; these laws depended mainly on what is known as the Common Law, which was in effect during the Mandate. The British Royal Decree affirmed the continuation of applying those laws in Palestine Constitution in 1922.

Article (73) in the constitution of 1922 stipulated that mandates, laws, instructions, court standards and all other legislation legislated and issued by the chief leader of the Egyptian campaign, the general director of the enemy country, military governors in Palestine or any other administrative employee, between October 1, 1917 and June 30, 1920, are considered standing until they are canceled by the legislative authority established by this constitution. Article (74) of the constitution in 1922 stipulated that all mandates, laws, instructions and all other legislation issued by the High Commissioner or any other department in Palestine government since July 1, 1920, are considered standing.

Article (46) in the Constitution of 1922 stipulated very clearly that the disciplinary courts in Palestine exercise their jurisdictions according to the Ottoman legislation that was in force in Palestine on November 1, 1914 and the Ottoman laws to be announced later as standing in Palestine. Then came the basic law of Gaza Strip in year 1955, stressing on the effective status of the 1922 constitution and the laws, orders, mandates and instructions issued by the Minister of War, the administrative governor, high commander of armed forces or any other competent authority since the entry of the Egyptian troops on May 15, 1948, in a manner that does not contradict with this law (article 45).

This was stressed in article (69) of the constitutional system of Gaza Strip issued in 1962.

The situation became more complex when the Israeli occupation added several military orders to the above mentioned laws; the Israeli occupation also made some partial indirect amendments on the Ottoman laws. The legislative problem and confusion in the judicial system kept escalating until the Palestinian National Authority assumed power in some of the Palestinian lands in 1994, and issued several new legislation that regulate issue organized by previous laws without canceling or unifying or any coordination among them. President Arafat s decree no. (1) for the year 1994 issued on May 20, 1994, stipulated keeping all elements of the legal system that existed before June 5, 1967, with all their rules that are actually various legislative systems of the Ottoman, British, and the Israeli occupation, in addition to what was issued during the Egyptian administration on Gaza Strip and the Jordanian administration in the West Bank. The decree stipulated the following: Work will continue using the laws, regulations and orders that were effective prior to June 5, 1967 in the Palestinian lands West Bank and Gaza until they are unified.. .

2- The need to up-date and complete the deficient laws:

Even if we ignore the dilemma related to the differences in philosophies of laws and their goals during the Ottoman era and British Mandate and the other goals and objectives of the Egyptian administration in Gaza Strip and the Jordanian administration in the West Bank, in addition to the differences in philosophy during the Israeli occupation, and the goals of the PNA since it assumed power in 1994, many of these laws are outdated and need updating because they limit the PNA capacity to achieve the goals of the current phase in the Palestinian national project. Moreover, the current laws affect the unity of the legal system and rules applied in the Palestinian lands, thus affecting the possibility of achieving justice in a unified manner to everyone. The development in life revealed many aspects in the relations that need regulating. So, lacking the modern legal systems constitutes a serious difficulty that has negative impact on the performance of the Palestinian judicial authority.

3- Lack of Legislative guarantees for the Immunity of the Judiciary:

The independence of the judiciary is not a goal in itself; it is a vehicle that allows the legal systems to find a kind of balance between necessities of the ruling and the rights of citizens. Any ruling system is accompanied by centers of power inside the government and among the popular sectors where some authorities, public office figures or other figures with certain social status try to abuse their authority and attack the rights and jurisdictions of others. Such a situation requires the integrity and independence of the judicial system to confront those various centers of power. In order to protect the rights, freedoms and jurisdictions, the legal systems try to organize the judicial authority in a manner that ensures its independence in functioning to achieve justice through several measures, such as the process of selecting the judges and making sure they have the required qualifications, training them and not limit their working hours, and making sure they cannot be discharged, and granting them immunity from threats that can question their judicial interpretations, and paying their salaries. Granting them immunity cannot be absolute; they can be disciplined for misconduct according to the code of ethics of their profession and protect them from materialistic factors.

Despite the importance of legal arrangements to ensure the independence of the judiciary, there are other factors that affect the independence of the Palestinian judiciary system, such as the absence of a unified legal system of the judiciary authority, the existence of exceptional courts, the intervention in forming courts, the impact caused on the court decisions from power centers in the official authority and the effect of the public opinion influenced by the political groups and the impact caused by the civil institutions. There is also the unlawful political arrests issue. There are also the internal factors in the judicial authority itself. All these issues require that the project set the guarantees and controls that provide the conditions for the independence of the judiciary.

4- The distribution of judicial function and pluralism in judicial parties:

The judicial system in Palestine is peerless in a phenomenon of having multiple judicial parties and multiplicity in systems forming and controlling the judicial authority. There are groups of courts with some courts being under the authority of some groups while others are independent in terms of jurisdictions, laws and regulations applied. Moreover, the development of courts was halted during the Israeli occupation which, in fact, tried to minimize the authority and jurisdictions of the courts, taking for itself the role of the judge in many of the cases. In brief, the judicial system in Palestine found itself in an unparalleled situation among the contemporary judicial systems. There was no unity in the judicial system in Palestine. Even under the limited jurisdictions of the judiciary under occupation, various civil, religious, sectarian, military and exceptional judicial parties divided the authority among them, with each party specializing in a certain area or sect.

5- Lack of a new law that can guarantee the independence of the judiciary:

Regardless of the historical, political and colonialist factors that contributed to this situation in the Palestinian judiciary, the independence of the judiciary must be guaranteed by the law that regulates the judicial authority so that this organization can give this authority to impose the legitimate sovereignty on all public actions of the state.

In the Palestinian case, we point out to the importance of having a law that can guarantee the independence of the law. It is well known and agreed upon that the judiciary is one of the most important authorities of the state, next to the legislative authority, that is usually formed through elections, thus giving it the power to confront the other authorities. There is also the executive authority which owns means of materialistic and legal power that enables it to have broad jurisdictions. The third authority is the judiciary authority which does not have the equipment and financial resources to give it enough power to be equal to the other authorities. This situation requires the concentration on having constitutional guarantees that can achieve independence of the judicial authority to exercise its jurisdictions without any interference by any other au

Source: ATF Shu‘un Tanmawyyeh Issue 21


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