Is Abbas overstepping his authority with decision to form new court?

The Palestinian government is working on establishing a High Criminal Court and amending the penal code enforced in the West Bank, in a move that many view as an encroachment of the legislative authority by the executive branch.

al-monitor Palestinian President Mahmoud Abbas chairs a Palestinian Liberation Organization (PLO) executive committee meeting in the West Bank city of Ramallah, May 4, 2016.  Photo by REUTERS/Mohamad Torokman.
Ahmad Melhem

Ahmad Melhem


Topics covered

west bank, penal code, plc, mahmoud abbas, legislative power, jordan, crime, court

Aug 2, 2016

RAMALLAH, West Bank — The Palestinian public prosecution, the Supreme Judicial Council and the Bar Association are currently studying a draft law on the formation of a High Criminal Court in the West Bank. The draft was submitted by the Palestinian Ministry of Justice for them to offer comments.

The Ministry of Justice is seeking to get legal comments on the draft law prior to its submission to the Council of Ministers, which will examine and discuss the draft before voting on it through the three readings for approval and publication on the websites of the Council of Ministers and the Ministry of Justice. Before the end of the year, the draft is then sent to President Mahmoud Abbas in order for him to issue a decree, Palestinian Justice Minister Ali Abu Diak told Al-Monitor.

Ever since the Palestinian Legislative Council (PLC) has been disrupted due to the armed clashes between Fatah and Hamas on June 7, 2007, the successive Palestinian governments have been drafting bills and submitting them to Abbas for signature and promulgation through a decree.

Prime Minister Rami Hamdallah announced July 17 during the opening of the Seventh Judicial Conference in Ramallah the government’s plan to form a High Criminal Court and make amendments to the Jordanian penal code, which dates back to 1960 and is in force in the West Bank.

Hamdallah said, “There are some laws and regulations that need to be amended, especially the penal code. We are seeking to form a committee very shortly to amend this law and a High Criminal Court to deal with crimes that fall within [this] court’s competence,” such as crimes of intentional killing.

The high rate of murders that rose in Palestine during the month of Ramadan, which started June 6, and the judiciary’s slow dealing with defendants prompted the government to form a High Criminal Court, Abu Diak said.

The High Criminal Court, which “will consist of three judges and will be based in the city of Ramallah, will be settling certain crimes based on a special procedure and will provide speedy litigation procedures and prompt sentences,” Abu Diak added. “The court will issue its verdicts based on the current penal code, which includes the death penalty, a sentence that requires presidential approval.

The government had referred several laws to Abbas, who issued them through decrees based on the Jordanian penal code. “The government did not issue a new penal code because this requires a legislative council, but we have issued laws that were not addressed by the penal code such as the substance abuse law and cybercrimes, and we are studying the issuance of the juvenile law and the law on protection of the family,” Abu Diak said.

The government’s plan to enact laws is being widely criticized, as it infringes upon the powers of the legislative authority.

Ahmed Mubarak al-Khalidi, a constitutional law professor and the head of the committee tasked with drafting the Palestinian Constitution, told Al-Monitor, “As an executive authority, the government does not have the right to amend the penal code because this falls within the jurisdiction of the legislative branch only, and if it does so, then it would be infringing upon the legislative power.”

He said, “The formation of a High Criminal Court can only be made based on a law from the PLC. Therefore, the government should abide by the powers set out for it in the constitution. The establishment of a criminal court will not solve the problem of accumulated lawsuits in the courts. To solve this problem, a change must occur at the level of judicial proceedings, which should be distributed to the judicial bodies that deal with crimes.”

Khalidi added, “As the government plans to change the penal code and form a High Criminal Court, it is seeking to control the legislative and judicial branches.”

The High Criminal Court Act and the amendments to the penal code, in the event they are issued by the government, are expected to receive social and legal criticism. This was the case with the Higher Media Council, which was approved by the president Jan. 19 but whose publication in the Official Gazette was suspended a day later. The same happened with the Social Security Act, which was approved by the president March 23 but was then put up by the government for civil discussion April 24.

Issam Abdeen, the legal adviser to the Palestinian human rights organization Al-Haq, told Al-Monitor, “The legislations issued by the government through the president are not subject to discussion with civil society, and they usually cause problems once signed and published in the Official Gazette.”

He added, “Amid the PLC’s disruption, the government is monopolizing the policymaking and legislation process. This proves that there is a problem at the level of the government, which does not believe in the principle of partnership with civil society.”

Abdeen said that civil society groups put forth a proposal in April that was approved by the government for the formation of a joint committee comprising experts from both the government and the civil society to discuss the plan and give legislative priority to the government. However, the proposal failed to materialize as the committee was not formed and the government kept working individually.

“The criminal court will not solve the problems plaguing the judiciary amid the executive power’s interference in the judicial affairs and work. The issue requires a larger judicial reform action plan. The court will not provide solutions if the judiciary continues to be plagued by structural imbalance due to the influence of the executive branch, the judicial inspection actions and the Courts and Lawsuits Administration,” Abdeen added.

As for the penal code, Abdeen explained that the civil society organizations and legal experts worked in 2010 on the preparation of a modern and advanced draft penal code in line with international human rights standards, and the draft was submitted to the government in 2011. But the government did nothing, and the draft has been consigned to oblivion as it has been shelved for five years now.

The principle of separation of powers is threatened by the PLC’s disruption and the executive power’s carrying out of its role and function as far as the enactment of laws and regulations is concerned, in addition to the executive power’s interference in the judiciary’s work and the absence of censure over its work.

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