Sources On Arab Judiciaries
United Arab Emirates
Constitutional Provisions On The Judiciary
Structure Of Court System
Personal Status Issues
Appointing/ Assigning/ Evaluation Of Judges
Administration And Relationship With The Ministry Of Justice
Specialized Courts And Their Jurisdictions
Arab Judicial Structures
A Study Presented To The United Nations Development Program
by Nathan J. Brown
Palestine (Palestinian National Authority)
The history of Palestine has been anything but continuous. It is therefore something of a surprise that courts in the West Bank and Gaza have been continuously operating since the beginning of the British Mandate. These courts have passed through several phases�as part of the British-administered government of Palestine, as part of the Jordanian judiciary (in the West Bank) and an autonomous Palestinian judiciary under Egyptian supervision (in Gaza), and under Israeli military occupation. The courts are currently operating under the supervision of the Palestinian National Authority which has worked to prepare them for statehood. The Palestinian judiciary has thus functioned continuously in many difficult settings.
- Constitutional provisions for the judiciary
Palestine has no constitution, though much attention has been given to developing an appropriate constitutional framework. Under Jordanian rule, the West Bank was governed by the Jordanian constitution. Egypt issued a constitutional document for Gaza. Some provisions of these constitutional orders are still regarded as applicable by Palestinian legal figures, but their precise legal status remains unclear.
The Palestinian Legislative Council passed a basic law to serve as a provisional constitution during the interim period leading (as Most Palestinians assumed) to eventual statehood. That document contained strong provisions for an independent judiciary, but it has not been approved by the president of the Palestinian National Authority.
A committee of Palestinian legal figures has drafted a constitutional document for statehood. This document is not authoritative and was intended to serve primarily as a starting point for public discussion of a constitutional order. The committee reports to the Central Committee of the Palestine Liberation Organization which has encouraged its work but not endorsed it. The judicial provisions of the current draft are reproduced here with the caveat that they may serve as an indication of what a Palestinian constitution might contain but at present represent only the views of the committee.
Article 171 Judicial authority shall be assumed by the courts under the supervision of the Supreme Judicial Council.
Article 172 The judiciary shall be independent. It shall be the responsibility of the courts, whose varieties, levels, jurisdictions, and conditions for appointment of their judges shall be regulated by law. Care shall be taken to prevent dismissal of judges except in cases defined by law and in a manner that guarantees the independence of the judiciary.
Article 173 A shari�a judicial council shall be established. The law shall define the manner of its formation and its competence.
Article 174 The regular courts shall be entrusted with ruling in all disputes and crimes. Exceptional courts may not be formed.
Article 175 A court may not abstain from ruling on a case within its jurisdiction. A court may not decide in a case not within its jurisdiction according to the law by which it is regulated.
Article 176 Court sessions are public unless the court decides they shall be closed for reasons: related to public order or morals; pursuant to a request by the opposing parties. In all circumstances, the judgment shall be pronounced in public session.
Article 177 Judicial judgments shall be issued according to law. They shall be announced and executed in the name of God and in the name of the people.
Article 178 The crime of obstructing execution of a final judicial ruling shall be punishable by law.
Article 179 The state shall guarantee compensation for judicial error according to law. The responsibility of judges for substantial errors shall be regulated by law.
Article 180 Litigation procedures are regulated by law to guarantee justice and expeditious decisions in cases.
Article 181 Judges are independent. There is no authority over them in their judicial duties except the law. Interference in the work of the judiciary or the affairs of justice shall be considered a crime punishable by law in which charges shall have no statute of limitations.
Article 182 Appointment, transfer, seconding, promotion, and regulation of the affairs of judges shall be by law. Combining judicial work with any other profession or membership in the representative Councils or political parties shall be prohibited.
Article 183 Qualified jurists shall exercise the judicial function. They shall be chosen according to the law regulation the judicial branch. Extraordinary or special judges may not be appointed.
Article 184 Those who have taught law in colleges of law achieving the professorial rank, or attorneys who have practiced the legal profession for a period not less than twenty years may be appointed justices in the Court of Cassation and the High Administrative Court.
Article 185 The Supreme Judicial Council shall make decisions on appointments, assignments, transfers, promotions, and disciplinary measures related to judges in accordance with the law and organizing regulations.
Article 186 A judge shall swear the legal oath before the Supreme Judicial Council in the manner prescribed by the law of the judicial branch. He shall be responsible to it.
Article 187 Upon appointment, a judge shall submit a personal financial statement for himself, his spouse, and his minor children. The statements shall be kept by the Supreme Judicial Council. They may not be viewed except by with the permission of the president of the council.
Article 188 The judicial branch shall be headed by the Supreme Judicial Council, the formation and competencies of which shall be determined by law.
Article 189 Without prejudice to article 173, a court of cassation shall be constructed with jurisdiction over appeal in criminal and civil manners. Its formation and procedures for its operation shall be determined by law.
Article 190 A supreme court of justice shall be constructed to decide in administrative disputes. Its establishment, the regulation of the principles of its operation, the terms of appointment of its judges and employees, and the procedures followed before it shall be defined by law. Lower administrative courts may be established by law.
Article 191 A military court shall be established by law. It shall not decide any case outside the military sphere.
Article 192 A constitutional court shall be established by virtue of the constitution to exercise its authority independently in safeguarding the legality of the work of state institutions. It shall be composed of 9 judges with the following conditions: The Legislative Council shall select three. The president of the state shall select three. The Supreme Judicial Council shall select three. Their election shall be for one term of 9 years; it shall not be renewed or extended.
Article 193 The selection of judges of the Constitutional Court shall be from among legal figures who have worked in the legal professions, as judges, public prosecutors or attorneys with the condition that they have not less than twenty years of expertise in the fields of law, or from among those who taught law in the universities, provided that they have obtained professorial rank.
Article 194 The judges of the Constitutional Court elect a president for the Court for a three-year term.
Article 195 One-third of the judges of he Constitutional Court shall be replaced every three yeas in accordance with the law regulating the work of the Constitutional Court.
Article 196 Constitutional Court judges may not be dismissed without a judicial ruling.
Article 197 Constitutional Court judges shall enjoy the same guarantees enjoyed by deputies in the Legislative Council. They may not be tried nor may any procedures against them be taken except after obtaining the consent of the Supreme Judicial Council.
Article 198 The president of the Court and the judges in the Constitutional Court swear the legal oath in front of the president of the state, the speaker of the Legislative Council, and the president of the Supreme Judicial Council.
Article 199 A judge on the Constitutional Court may not assume any other public employment or conduct any commercial, political, or partisan activities, with the exception of academic work.
Article 200 Membership of a judge in the Constitutional Court terminates: at the end of the nine-year term; by voluntary resignation; by loss of one of the conditions of assuming it; by death; or by judicial conviction of a felony. A successor shall be selected within one month of the position becoming vacant by nomination of the authority that appointed the predecessor.
Article 201 The Constitutional Court shall examine the following questions, pursuant to a request from the president of the state, the speaker of the Legislative Council, or five members of the Council, or to a request from the courts, the attorney general, or someone whose constitutional rights have been violated: the constitutionality of laws before they are promulgated by request of the president of the state or five members of the Legislative Council when it is raised during the period of objection to it; the constitutionality of laws, ordinances, and regulations whose constitutionality have been challenged before the courts; deciding jurisdictional disputes among the branches of government or judicial bodies; the constitutionality of measures of indictment of the president of the state or the Legislative Council�s request to the court that it decide his loss of competence; the constitutionality of parties and their activities and measures dissolving and suspending them; the constitutionality of legislative or presidential election and the conducting of elections or public referendum on schedule; the constitutionality of signing treaties and the measures implementing them; the constitutionality of procedures of the branches of government that violate basic constitutional rights; or any other jurisdiction constitutionally based.
Article 202 The Law of the Constitutional Court shall regulate the procedures for the courts to refer constitutional challenges submitted to them when they examine them in disputes falling within their jurisdiction.
Article 203 Judicial decisions of the Constitutional Court shall be final and may not be appealed in any manner and bind all branches of government and individuals. The Law of the Constitutional Court shall regulate the procedures for the courts to refer constitutional challenges raised before them when they examine them in disputes falling within their jurisdiction.
Article 204 The Constitutional Court shall render void an unconstitutional law, regulation, or measure, or end its effectiveness in accordance with the circumstances and conditions specified in the law organizing its operation.
Article 205 The Constitutional court shall determine its own by-laws.
Article 206 Amendments of the constitutional provisions regulating the Constitutional Court, either by cancellation or additions, shall be by constitutional law adopted according to the same conditions and procedures of amending the constitution and with the agreement of two-thirds of the members of the Legislative Council.
Article 207 The Office of the Attorney General is an organ of the judicial branch governed by the Law of the Judicial Branch which must regulate the method of its formation, its competencies, and the terms of appointment, transfer, promotion, financial status and accountability of its members.
Article 208 The Attorney General shall be appointed at the head of the Office of the Attorney General by nomination of the Supreme Judicial Council and decision by the head of state, to be approved by the Legislative Council. His competencies, his assistants, and their duties shall be defined by law.
Article 209 The Office of the Attorney General shall pursue public cases in the name of the people in accordance with the provisions of law.
Article 210 The judicial police are directly subject to the judicial branch.
Article 211 The Ministry of Justice shall be entrusted with the administration of judicial facilities without infringing on the supervision of the judiciary by the Supreme Judicial Council.
Article 212 The legal profession shall be regulated by law.
- Structure of court system
The Palestinian court system is moving to construct a three-tiered system of courts. Depending on the seriousness of a case, it is first assigned to single-judge magistrate courts (mahakim al-sulh) or multi-judge district courts (mahakim markaziyya). Appeal from either of these goes to the second level, the Court of Appeals. Branches of the Court of Appeals sit in Gaza and Ramallah.
Palestinian courts have had an additional, third level in the past. Under Jordanian rule, Palestinians on the West Bank could appeal from the Court of Appeals to the Court of Cassation in Amman. In 1967, Israel divorced the West Bank courts from the Jordanian system and barred appeals to Amman. It is likely that statehood (and the need to unify the West Bank and Gazan judiciaries) will some day result in the construction of a Palestinian Court of Cassation.
The Palestinian courts do not have a separate administrative judiciary, but (following the old Jordanian system), the judges of the highest court (the Court of Appeals) can also sit as the High Court to hear administrative cases.
There are also specialized courts within the regular judiciary to handle tax matters and municipal affairs.
- Personal status issues
Personal status issues are handled by a separate court system. Shari�a courts operate for Muslims and the other Palestinian religious communities have their own courts.
- Prosecution system
Palestine has a public prosecution system on the niyaba model. At present, the Attorney General who heads the niyaba is appointed by presidential decree. The system is still establishing itself.
The harsh security and political conditions under which the PNA operates have led to actions by security forces which bypass the normal prosecution system. This has attracted both domestic and international criticisms.
- Appointing/assigning/evaluation of judges
Until 1999, judges were appointed by presidential decree. Management of the judiciary remained unclear, however, in this period. The West Bank judiciary still operated largely on Jordanian law, which provided for a judicial council (which was not created for some time). The Gazan judiciary operated under the oversight of the Chief Justice (qadi al-quda), an office that continued but its oversight over the West Bank was unclear. And the Ministry of Justice also saw itself as playing a role in the appointment and assignment of judges pending the establishment of a formal system.
In order to clarify the situation, the Palestinian Legislative Council drafted and passed a law governing judicial affairs. Its draft provides for a Supreme Judicial Council that would oversee this process. The composition of the Supreme Judicial Council would be exclusively judicial (unusual in the Arab world). Thus, if adopted, the law would provide for one of the most independent judiciaries in the Arab world. The president has delayed signing it and is instead suggesting some modifications in the legislation.
In the interim, the president first issued a decree in 1999 assigning the authority of the Judicial Council to a new, widely-respected Chief Justice.
While this increased the independence of the judiciary, many in the Palestinian legal community felt that this authority was better vested in a council (especially one blending West Bank and Gazan judges) rather than an individual. Accordingly, the appointed a Supreme Judicial Council by decree in 2000. It is headed by the Chief Justice; he is joined by senior judges from the West Bank and Gaza. Only one representative from the executive branch (the deputy minister of justice) sits on the Council. The Council oversees judicial appointments, assignments, and promotions. The system thus potentially provides for considerable independence. However, it is not yet anchored in legislation and its members are appointed as individuals rather than by office. Full judicial independence awaits final agreement between the Palestinian Legislative Council and the president on a law.
- Administration and Relationship with Ministry of Justice
The budget of the courts is overseen by the Ministry of Justice. Even before the outbreak of the current intifada, Palestinian courts experienced funding difficulties. The courts have continued operating during the intifada, but the closure (which prevents lawyers, litigants, and witnesses from travelling to courts) and the fiscal crises of the PNA (with Israel holding up transfers of tax revenues) have severely diminished their operating capacity.
Because the legislative basis for the courts is still being established, the Ministry of Justice plays a far larger role in court administration than may eventually be the case. The formation of the Supreme Judicial Council in 2000 was a major step toward separating the executive and legislative branches, but the Council has yet to be established in legislation. And the outbreak of the intifada shortly after the establishment of the Council makes its effective operation more difficult.
- Specialized courts
Besides the specialized sections of the regular civil courts, the PNA has established some specialized courts.
First, state security courts were established by presidential decree in 1995. These courts provoked great controversy among Palestinians because they did not provide full judicial safeguards and tried cases extremely quickly. Besides security cases, the courts have also been assigned price and supply cases. In addition, the president has referred several crimes that provoked public outrage to the courts in order to ensure quick adjudication.
In 1998, the State Security Court began to divide into two structures. One was the Supreme State Security Court; it handled the extremely sensitive security cases that had originally led to the creation of the security courts in 1995. The second structure was the regular State Security Court with two levels; it handled the less sensitive cases and provided greater judicial safeguards (such as the possibility of appeal). A State Security Prosecutor was also appointed in 1999.
These bodies exist by virtue of presidential decrees and interpretation of pre-1967 law. The Palestinian Legislative Council has not yet given them any clear legislative basis. Since it remains very suspicious of the State Security Court system, it is not likely that the executive and the legislature will agree on appropriate legislation soon.
In addition to the State Security Courts, the Palestinian election law of 1995 establishes a special court to try election disputes. Judges were named as individuals to the court for the 1996 elections. Since 1996, the Elections Court has not been active, though if local or national elections were held it would presumably be reinvigorated.
- Judicial education
There is no formal system for training Palestinian judges, but Palestinian universities have begun to build law schools. This will make it possible to have a generation of Palestinian-trained judges. Bir Zeit University has administered some judicial education programs with support from the World Bank. Some Palestinian judges have also studied at other judicial training academies in the Arab world. Some external donors (such as the World Bank and USAID) have given assistance in this area.