JURIST Guest Columnist Wael Lafee, an LL.M. student at the Univeristy of Pittsburgh, is the author of the twelfth entry of a 14-part series from the LL.M. students of the University of Pittsburgh School of Law. He explains Palestine’s unique legal history and reviews how that history has impacted the formation of regular courts in the country…
The Palestinian judicial system is unique because Palestine has been occupied and influenced by different powers and rulers over the last century, which shaped today’s legal and judiciary systems. Ottoman, British, Jordanian, Egyptian and Israeli law are all still enforceable in parallel with Palestinian law. Palestinian law was enacted after the creation of the Palestinian National Authority as the result of the 1993 Oslo Accord between the Palestinian Liberation Organization (PLO) and Israel. To understand the components of the current judiciary system in Palestine, we need to review, in brief, the background of the legal system in Palestine throughout history. As part of the Ottoman State from 1516 to 1917, Palestine was subject to Ottoman law. The Ottoman legal system was a compilation of Islamic and French law. The British occupation over Palestine from 1917 to 1948 maintained the Ottoman laws but added a new set of laws based on the common law system. At the end of the British Mandate for Palestine in 1948, the legal system of Palestine became a mixture of Islamic law, French law and the common law systems.
In 1948, Israel occupied Palestine and this resulted in the Balfour Promise, which granted Palestine as an alternative state for the Jewish people in the world. At that time and as result of the occupation, Palestine was divided into three parts: the Israeli state, the West Bank and the Gaza Strip. The West Bank was annexed to Jordan, while the Gaza Strip fell under the administration of Egypt. Jordan extended its laws, a mixture of Ottoman and British laws, to the West Bank. Egypt kept the original legal system in the Gaza Strip, as it was under the British Mandate, with insignificant modifications. When Israel occupied the West Bank, including East Jerusalem, and the Gaza Strip in 1967, it maintained the previous laws with some changes made in the form of military orders.
In 1993, the Palestinian National Authority was created according to the Oslo Accord between the PLO and Israel and came into force in 1994. Accordingly, the Palestinian Authority began to have legal authority in the West Bank and Gaza Strip. Palestinian President Yasser Arafat issued the first legal order on May 20, 1994 in which he decided to maintain the previous laws, which had been valid until June 5, 1976 in the West Bank and the Gaza Strip. In the order, he also abolished some of the standing Israeli military orders while maintaining others.
The elections on January 25, 1996 created the Palestinian Legislative Council (PLC). The Council has legislative power and has adopted a set of laws, including the judiciary code. The PLC enacted the Palestinian Basic Law in 1997, which became effective on May 2002 after presidential ratification. This was significant because the Basic Law established the governmental structure of the Palestinian state, which created separation of powers and judicial independence.
Under the Basic Law, Palestinian lawmakers stated that:
[T]he Judicial Authority shall be independent, and shall be assumed by the different types and level of courts. The structure, jurisdiction, and rulings of the courts shall be in accordance with law. The rulings shall be announced and executed in the name of the Palestinian Arab People.
Also, the PLC enacted a series of laws concerning the Palestinian judicial system, the most important of which was the Judicial Authority Act [PDF] No. (1) of 2002, concerning judicial authority.
Before the adoption of the Judicial Authority Act, West Bank courts operated according to pre-1967 Jordanian laws, while Gaza Strip courts operated according to the British Mandate laws enacted in Palestine before 1948. The Judicial Authority Act placed all courts under a single administrative body called the High Judicial Council. This council is comprised of the President, the two most senior judges selected by the High Court Assembly, the presiding judges of the Courts of Appeal in Jerusalem, Gaza and Ramallah, the attorney general and the deputy minister of justice. The tasks and the functions of the council are judicial inspection, grievances, appealing decisions, disciplinary inquiry of judges and administrative duties.
The Law of the Formation of Regular Courts [PDF] provides that the courts in Palestine consist of the High Court of Justice, the Courts of Appeal, the Court of First Instance and the Court of Conciliation. The High Court of Justice convenes under the president and at least two judges. In the absence of a president, the most senior vice-president, followed by the most senior judge on the panel, presides over the court.
The High Court of Justice exercises its jurisdiction over disputes related to elections, requests aimed at the cancellation of final administrative regulations, decisions and decrees concerning persons or assets of public judicial persons including professional syndicates and appeals for the release of persons who are illegally detained. Disputes are related to public employees concerning appointments, promotions, pay raises, salaries, transfers, retirements, disciplinary measures, layoffs, dismissals and all matters related to personnel affairs. Refusal or negligence occurs when an administrative authority does not make a decision that is required by the provisions of the laws or bylaws. All administrative disputes are not considered court cases, but are merely injunctions or summons that exist outside of the jurisdiction of any court. Such disputes are adjudicated in the interest of justice and pursuant to the law. Appeals and disputes brought before the High Court of Justice by persons or authorities must be related to: jurisdictional or procedural errors, violations of laws or bylaws, mistakes in enforcement, mistakes in drafting or an arbitrary or abusive use of legal authority. Article 94 of the 2002 Basic Law provides for the establishment of the Constitutional Court. However, this court has not yet been created, and the High Court of Justice is serving the functions of the Constitutional Court in the interim.
The Court of Cassation, also known as the court of the law, reviews cases related to criminal and civil matters. The Court of Cassation consists of the president of the High Court of Justice and four additional judges. In the absence of the president, the most senior vice-president presides over the court. The Court of Cassation has jurisdiction over appeals brought before it from the Courts of Appeal in felony cases, civil cases, personal status matters for non-Muslims, appeals brought before it from Courts of First Instance in their appellate capacity, matters related to changing the terms of reference of a case and any matter brought before it pursuant to the law.
The Courts of First Instance consist of a president and an adequate number of judges. The Courts of First Instance have jurisdiction over all felonies and misdemeanors. If one act constitutes several crimes, or if several crimes are committed with one object and are so connected as to be indivisible and one of those crimes comes under the jurisdiction of a Court of First Instance, then this court shall review all of them. If a Court of First Instance finds that the incident as described is a misdemeanor, it may rule that it lacks jurisdiction over the controversy and refer it to the Conciliation Court. If the Conciliation Court finds that the crime presented before it comes under the jurisdiction of the Court of First Instance, it may conversely rule that it lacks jurisdiction and refer the case to the Public Prosecution to take action as it deems fit.
Within the circuit of jurisdiction of each Court of First Instance, one or more Conciliation Courts have been established as necessary. The Conciliation Courts exercise their jurisdiction pursuant to the law. A Conciliation Court convenes before the most senior judge, who shall exercise administrative control. The Conciliation Courts have jurisdiction over all contraventions and misdemeanors coming under the scope of their jurisdiction.
The Courts of Appeal review appeals filed before them against judgments and decisions rendered by the Courts of First Instance in their capacity as courts of initial jurisdiction. The Courts of Appeal have been established in Jerusalem, Gaza and Ramallah. The Courts of Appeal shall consist of a President and an adequate number of judges. Each session of the Courts of Appeal shall convene before three judges and the most senior judge to present criminal and civil actions appealed before them.
While Palestine’s judicial system is relatively new, it reflects of its origins in French, Islamic and British Law.
Wael Lafee is an LL.M. student at University of Pittsburgh. He received his bachelor’s degree in law and police science from the Cairo Police Academy in Egypt in 1999. He is the Chief Prosecutor of the Jericho office of the Palestinian Attorney General, working on and prosecuting criminal investigations. In 2004, Lafee was selected as a participant in the US State Department’s International Visitors Program and spent several weeks visiting criminal law institutions in the US with a group of Palestinian prosecutors and judges. Lafee is the recipient of a Palestinian Rule of Law Program Fellowship, administered by the Open Society Foundation.
Suggested citation: Wael Lafee, Palestinian Law and the Formation of Regular Courts JURIST – Dateline, June 19, 2012, http://jurist.org/dateline/2012/06/wael-lafee-palestine-judiciary.php.
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