ATTACHMENT_J_2_The_Ministry_of_Justice_Comprehensive_Vision_on_the_Justice_Sector_2012.pdf

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Enhanced Palestinian Justice Program

ATTACHMENT J 2: The Ministry of Justice Comprehensive Vision on the Justice

Sector, 2012

Palestinian National Authority The Council of Ministers

The 14th Government

Cabinet Meeting No. 18 – 18th September 2012

The Ministry of Justice

Comprehensive Vision on the Justice Sector

Attachment: 706

Date: 12th September 2012

Palestinian National Authority Ministry of Justice Office of the Minister

His Excellency Dr. Naim Abu Al-Humos The Secretary-General of the Council of Ministers

Subject: Inclusion of Item for the MoJ on the Agenda

Dear Sir, We would kindly ask you to include one item on the “Comprehensive Vision on the Justice Sector” on the agenda of the forthcoming cabinet meeting.

Yours sincerely, Ali Muhanna Minister of Justice

Comprehensive Vision on the Justice Sector

First: The Constitutional Court

1. Hastening the promulgation by the President of the PNA of a Law by Decree to amend the Constitutional Court Law No. 3/2006 regarding the increase of its members, the expansion of its membership conditions, restriction of the range of law suits before it, adjustment of the legal rhythm of proceedings and overcoming the mistakes in same.

2. The prompt formation of the Constitutional Court by a Presidential Decree, it being one of the tools which protect the national project taking into consideration that its formation is a legal and constitutional obligation in view of the applicability of its law on 26/4/2006. Moreover, the Supreme Court may not assume its jurisdiction because it contravenes the provisions of Articles 103 and 104 of the Basic Law.

Second: The Administrative Court

1. Start the preparation of a Draft Law on the Administrative Courts according to the provisions of Articles 102 and 104 of the Basic Law, those being independent courts for presentation to the President for its promulgation as a Law by Decree.

2. The promulgation of a Law by Decree on the Administrative Court, said courts shall be formed according to the provisions of this Law.

Third: Complete the Separation between the Judicial and Executive Authorities

1. The Minister of Justice to assume the role and mandate of the Attorney-General.

2. Cessation of the membership of the Attorney-General and the Deputy Minister of Justice in the HJC

3. According the Judicial Authority represented in the HJC the mandate to manage its internal affairs according to the provisions of Laws promulgated by the original and exceptional legislative authorities and the by-laws ratified by the Council of Ministers according to Article 71 of the Basic Law.

Fourth: Amendment of the Judicial Authority Law

1. Fixing the minimum age of those recruited to the judiciary at 30 at least.

2. Representation of the Courts of 1st Instance in the HJC by two members.

3. Representation of Magistrates by one member in the Council.

4. Devise an early retirement system for judges and prosecutors.

5. Rotation of legal positions between the Judiciary, the Public Prosecution and the Council of Legal Opinion and Legislation.

6. Reduction of the retirement age of judges to 65 in lieu of 70.

7. Separation between ranks and positions in the Judiciary and the Public Prosecution to reduce the flow to upper positions and the recruitment policies and the automatic promotions which do not reflect a genuine need for recruitment.

8. Increasing the scope of judicial inspection to include all judges and prosecution members.

9. The appointment and the termination of services of the Chief Justice by Presidential Decree irrespective of age.

Fifth: Implementation of Major and Effective Amendments to the Package of Judicial Laws To include: The Law on the Formation of Regular Courts, the Civil and Commercial Procedures Code, the Criminal Procedures Code and the Penal Code.

1. Reducing the cost of litigation.

2. Reducing the duration of litigation.

3. Development of case management and the proper management of human resources.

4. Enhancement of guarantees of fair trial and the application of the principles of human rights and human dignity.

5. Provision of internal and external investment environments.

6. Enhancement and development of alternative measures including arbitration and mediation.

7. Increasing HJC revenues and rationalizing spending.

8. Enhancement of the principles of fairness and transparency.

Sixth: Resolving the Conflict of Jurisdiction between the Regular and the Military Judiciaries:

1. Introducing effective and major amendments to the Penal and to the Criminal Procedure Codes applicable before military courts

2. Determination of what is civil and what is military.

3. Banning the trial of civilians before the military judiciary.

4. The capacity building of military prosecutors and judges.

5. Provision of financial and technical support to the military judiciary.

6. Increasing the salaries of military prosecutors and judges.

Seventh: Enhancing the Role of Civil Society and its Involvement with and the Monitoring of the Justice Sector

1. Its involvement in devising judicial policies and the enhancement of its relations with the judicial sector based on integration and joint responsibility

2. Taking into consideration its comments and reports in its capacity as a window on society.

3. Enhancement of responsibility and national affiliation in civil society organizations.

4. Compliance of its institutions with the standards of transparency and institutionalization and away from family and factional affiliations.

Eighth: The Council of Legal Opinion and Legislation

1. Identifying the national need for the Council.

2. Identifying its mandate and authority.

3. Identifying its subordination according to one of the following scenarios:

A. Subordination to the Ministry of Justice.

B. Being a separate body subordinate to the Council of Ministers.

C. Subordination to the Secretariat-General of the PLC since its tasks are integral to the legislative process.

4. Identifying the functional capacity of its staff (judicial or administrative).

Ninth: The Judicial Training Institute

1. Expanding its mandate to include the provision of training to regular and military judges and prosecutors and SHARIAA judges, the training and capacity building of legal advisors at the PNA ministries and institutions.

2. The provision of factors to boost the sustainable development of the Institute to include an independent budget apart from the MoJ budget.

3. Recruitment of legal and administrative staff needed.

Tenth: The Commission for the Standards of Judgments

The creation of this Commission which is subordinate to the Minister of Justice to devise lists on the standards of all sorts of judgments to be sent to the Council of Ministers for ratification.

Eleventh: State Litigation Authority

It is a component of the organization structure of the MoJ and is directly linked to the Minister. It shall represent the PA institutions before the Constitutional Court according to the provisions of the Constitutional Court Law. It is logical to represent them also before the Administrative Courts intended to be formed and also before civil courts. This necessitates the amendment of the applicable State Cases Law.

Twelfth: The Notary Public

According to the Notary Public Law of 1952 which is applicable in the Northern Provinces, the notary public is considered a state employee who has no judicial functions. For years, the HJC assumed responsibility for the notaries public without any legal justification, thus leading to lack of accountability and the subsequent loss of revenues. This necessitates restoring matters and their subordination to the MoJ or the amendment of the Notary Public Law by Law by Decree.

Thirteenth: Dealing with Donors

Various committees established to conduct studies on the justice sector had previously recommended prohibiting the Judicial Authority from dealing directly with donors. As such, we recommend that the justice sector components identify their needs for referral to a ministerial committee comprising the Minister of Planning as chairman, the Ministers of Finance, Justice and Public Works and the Secretary-General of the Council of Ministers to contact and coordinate with donors.

Fourteenth: The Infrastructure of the Justice Sector Components

To keep judges away from suspicion, they should not be allowed to engage in the provision of the infrastructure needed by them. We recommend that the HJC identifies its needs so that the proposed ministerial committee plans and implements same.

Fifteenth: SHARIAA Judiciary

The package of laws regulating the SHARIAA Judiciary require updating since the SHARIAA Procedures Code No. 31/1959 and the Law on the Formation of SHARIAA Courts No. 19/1972 which are still applicable do not meet the needs of the Palestinian society.

And whereas said laws are considered insufficient and do not address the necessary aspects needed for the development of the SHARIAA judiciary, the following is needed:

1. Promulgation of a package of laws regulating the SHARIAA Judiciary and meeting the needs of the Supreme SHARIAA Judicial Council to enable it to fulfill its role in providing support to the standards of justice and human rights.

2. Meet all the needs of the Higher SHARIAA Judicial Council to enable it to fulfill its role.