Judicial Foundation and Legal Codification
The legal system of Palestine is based primarily on Common Law practices and Islamic legal principles. There is considerable overlap of diverse legal institutions in the Palestinian territories. Some of these include Israeli military and civilian law, Jordanian law, and acts, ordinances, and orders-in-council that remain in effect from the time of the British Mandate. In May 1994, Chairman Arafat and the PLO Executive Committee promulgated Resolution No. 1 of 1994. In effect the Resolution stipulated that all laws, regulations, and orders in force prior to the start of Israeli occupation, in June 1967, would continue to operate. In May 2002 the Basic Law, a provisional constitution, was issued. Articles 88 and 89 of the Basic Law provide for an independent judiciary, to be subject only to the law. Article 91 of the Basic Law provides for a High Judicial Council, presided over by the Chief Justice, to serve as the administrative authority of the judiciary. The Judicial Authority Act, passed by the legislature in 1999, gives the High Judicial Council the authority to regulate the training of judges and allows for lawyers and law professors to be appointed as jurors. The Act also names the most senior judge of the High Court, two of the most senior judges of the High Court elected by the general assembly of the Court, presidents of the Courts of Appeal of Jerusalem, Gaza, and Ramallah, the Attorney General, and the Undersecretary of the Ministry of Justice, as additional members of the High Judicial Council. According to the Draft Law, court sessions are to be public.
In November 1998 the Chief Justice of the High Court was forced to retire through an act of the civil service. A new Chief Justice was appointed after the following year. The judiciary system suffers from a shortage of trained judges and uncertain jurisdictional boundaries.
Judicial Structure and Court System
The judicial authority that settles civil and criminal disputes is structured in a four-tiered hierarchy. At the base are the Magistrate Courts. Cases may be appealed from these courts to the Courts of First Instance, which represent the second tier in the hierarchy. Decisions taken by these courts may be further appealed to the Courts of Appeal, after which any appeals must be made to the Supreme Court.
Judicial Authority and Appointment of Judges
The High Judicial Council oversees the judiciary in the Palestinian Authority and has responsibility for the appointment, supervision, transfer and dismissal of judges.
The Supreme Court is comprised of three departments: the High Constitutional Court; a Court of Cassation in civil, criminal, and commercial matters; and a High Court of Justice for administrative disputes. The Court of Cassation and the High Court of Justice represent the apex of the ordinary judicial structure. These serve as the final courts of appeal for issues in their respective departments.
Constitutionality of Laws – Judicial Review
The High Constitutional Court has the authority to review laws and rules to ascertain their constitutionality.
In February 1995, the Higher State Security Court was established in Gaza to try crimes relating to the internal and external security of the state. Military courts also exist, but their jurisdiction is constitutionally limited to military crimes.
The judicial structure was significantly altered after the Israeli occupation in 1967. Chief among the results were the abolition of the Court of Cassation in Amman, prohibition of judicial review of any acts involving the Israeli government, the establishment of Military Courts for cases involving security and public order, and the transference of judiciary authority to the Military Commander.
Alongside the judicial system for civil and criminal matters, a system of Shari’a and other Religious Courts exist for matters of personal status. Earlier there were provisions for additional courts and tribunals with specialized jurisdiction to be created by legislative acts. These included a Land Settlement Court, Income Tax Appeal Court, State Security Court, and Jerusalem Municipality Court. The new Judiciary Act, however, does not provide for the establishment of courts with specialized jurisdiction, though Article 93 of the Basic Law establishes a system of administrative courts whose jurisdiction is to be determined by law.