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Haim Sandberg
Haim Sandberg
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The struggle for the Palestinian judiciary’s independence and why it matters

The dramatic erosion of the judicial branch's powers, despite valiant resistance from PA judges, is a cautionary tale for Israel and any democracy
Members of the PA judiciary protest on the steps of the Supreme Judicial Council building in Ramallah. The poster declares, "an independent judiciary -- a strong state."  September 20, 2016 (Screen shot from video)
Members of the PA judiciary protest on the steps of the Supreme Judicial Council building in Ramallah. The poster declares, "an independent judiciary -- a strong state." September 20, 2016 (Screen shot from video)

Few are aware that in the territories administered by the Palestinian Authority in the West Bank there is a judiciary that fights for its independence. The challenges it faces are formidable. The PA president, Mahmoud Abbas, has near-total control over the process of appointing and retiring judges. Since Hamas’s rise to power in Gaza, it too has used legislative powers to influence the judiciary. However, despite these daunting conditions, the Palestinian judiciary has, for the past several years, kept up a surprisingly robust struggle for its independence. The fortitude with which these judges are striving to uphold the integrity of the appointment of Supreme Court justices is as inspiring as it is concerning.

The authority to appoint the Supreme Court justices of the PA and its president rests with the PA president, Mahmoud Abbas. However, under Palestinian law, the president of the PA must do so in accordance with the “placement” (tansib) he receives from the Supreme Judicial Council, which is a body composed of judges and headed by the president of the Supreme Court. Since coming to power in 2005, Abbas has battled with the judges over the role of the judiciary in the appointment process.

At the beginning of his term, Abbas exercised his authority to appoint the president of the Supreme Court without regard to the judges’ recommendations. This is how Abbas appointed Issa Abu Sharar to the post in 2005, a few months before Abu Sharar reached retirement age (70). Unlike in Israel, the PA has no procedure whereby the judge with the most seniority is appointed president. In 2009 and in 2014, Abbas appointed to the post — again without consulting the judges — jurists who served as justice ministers but had never served as judges.

By 2014, in the leadup to the appointment of Ali Mahana, the judges began to rebel. The former President of the Supreme Court resigned, the Judicial Council convened and appointed the Vice President, Justice Sami Sarsour, to replace him temporarily. The Council also sent a public letter to President Abbas asking for time to make decisions regarding the appointment of a new president. Abbas was unimpressed and appointed Mahana on the same day.

‘Moral and material damage’

About a year later, a petition was filed in the Supreme Court to disqualify the appointment. The petition was filed by attorney Nail Al-Huh from Nablus who is known as a consistent and public critic of the violation of the judiciary’s independence. The Supreme Court overturned Abbas’s decision to appoint Mahana as its president. The court held that the need to receive the Judicial Council’s “placement” prior to the appointment is a condition for the validity of the appointment. He further stated that “the moral and material damage is particularly severe because … [Mahana] is not an ordinary judge… he is at the head of the judicial hierarchy …”.

This time Abbas was forced to accept the Council’s recommendation and appointed Sarsour as president of the Supreme Court. But a series of moves ultimately led not only to Sarsour’s dismissal and the removal of all senior members of the Supreme Court, but also to the Supreme Court’s dissolution of powers as both constitutional and administrative court.

These events also erupted into the public sphere. On September 20, 2016, the judges took to the streets to protest the invective coming from Tawfiq Tirawi (former head of the General Intelligence) aimed at then-Supreme Court President Sami Sarsour. During a demonstration on the steps of the Supreme Judicial Council building in Ramallah, a poster was raised declaring, “an independent judiciary — a strong state.”

But now a new player was added to the mix, a Constitutional Court that Abbas established in 2016 and entrusted with the authority to carry out constitutional review, formerly vested with the Supreme Court. The senior staff of the Supreme Court was excluded from its composition. President Abbas retained the authority to appoint the judges of the new court and limited their term of office to six years.

The first ruling of the Constitutional Court held that there was no defect in Abbas’s attempt to force the appointment of the Vice President of the Supreme Court, and this ruling was published on the same day that the Supreme Court decided to cancel the same appointment of the deputy, in a petition filed by a retired Supreme Court judge. The immediate result was that Sami Sarsour, the president of the Supreme Court, was summoned to Abbas’s office to be notified that Abbas was accepting Sarsour’s “resignation.”

Payback day

Now the time for a reform of the judicial system had arrived — in other words, it was payback day. Abbas dissolved the Judicial Council, re-appointed Abu Sharar (83 at the time) to head a Temporary Judicial Council, and stipulated in a new law that the retirement age of judges would go down from 70 to 60. All senior Supreme Court justices retired thus, at once, and had to appeal to the Constitutional Court to reverse the evil decree.

The retroactive application of the legislation was indeed abolished by the Constitutional Court, but when the retired judges returned to their chambers, the Temporary Judicial Council recommended that Abbas end their tenure. This time around, the Constitutional Court denied the judges’ petition. In December 2020, Abbas relieved the Supreme Court of its power to carry out judicial review over the executive branch by entrusting this mission in an independent and separate system of Administrative Courts.”

The dismantling of the Palestinian Authority’s judiciary continues, and for Israeli observers, it can seem like a distant nightmare. After all, Israel can take pride in its own legal system, secure in the knowledge that the Committee for the Appointment of Judges reflects all the governing authorities; the term of office for judges is fixed; the seniority method works. The Supreme Court is empowered to carry out constitutional and administrative judicial review and, as the Honorable Chief Justice Esther Hayut emphasized, “no fortress has fallen.”

But a peek beyond the fence can also serve as a warning sign of what might happen if the basic guarantees for the independence of the judiciary are undermined. And the Palestinians are far from the only system where the dismantling of checks and balances is undermining the judiciary’s power. Hungary and Poland are recent examples among others, and they should serve as a warning.

As the late Judge Cheshin wrote:

“We all knew that by lowering the stature of the judiciary ‘the people shall lose restraint’ and ‘a kingdom shall be lost.’”

About the Author
Professor Haim Sandberg is a member of the faculty of law at the College of Management (Israel). In 2017 was included in the list of candidates for the position of Israel's Supreme Court judge. He is an expert in property law and writes a personal blog at https://www.professorhaimsandberg-lawoffice.com/.
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