OPINIONS

Sun 04 Jun 2023 10:13 am - Jerusalem Time

The Supreme Constitutional Court

The Constitutional Court is distinguished by its performance of sacred and sensitive tasks in the face of the state and the citizen. Concerning the implementation of two contradictory final rulings and deciding on the appeal against the loss of the legal capacity of the President of the State in accordance with the provisions of Clause (1/c) of Article (37) of the Amended Basic Law of 2003 AD. The terms of reference of the Constitutional Court are extremely important for building a democratic nation based on public rights and freedoms and a nation based on integrity and transparency. The terms of reference came explicitly and clearly in the first chapter of the second chapter of the law.


We see the formation of the new Supreme Constitutional Court as an important factor for advancing the elections forward to reactivate the Legislative Council, especially since the court has jurisdiction stipulated in Article (24), including the exercise of all powers to consider and rule on the unconstitutionality of any legislation or act that is contrary to the constitution (in whole or in part). And it is worth noting that when ruling that any law, decree, regulation, regulation or decision is unconstitutional in part or in whole, the law states that the “legislative authority” or the competent authority is the authority entrusted with amending that law, decree, regulation, regulation or decision in accordance with the provisions of the law. basic and law. Here is a clear, uninterpreted message of the necessity of activating the legislative authority and respecting the principle of separation of powers according to Article (2) of the Palestinian Basic Law, which confirmed that the people are the source of powers and exercise them through the legislative, executive and judicial authorities.


The Constitutional Court was established on the basis of the amended Basic Law of 2003. The Constitutional Court Law was ratified and approved in 2006. It bears the name of the Supreme Constitutional Court Law No. (3) of 2006 and was published in the Official Gazette No. (62). The Constitutional Court Law was amended twice: the first by Decree-Law No. (19) of 2017, and the second by Decree-Law No. (7) of 2019.


The Supreme Constitutional Court Law provides for the appointment of the president and members of the court for a non-renewable period of six years, taking into account the following: a. The court is formed of a president, a deputy, and no less than 7 judges. Three members are appointed to the court every two years from the date of the first formation of the court, and its decisions are taken by majority. Article (5) of the law states that whoever is appointed as a member of the court is required to meet the general conditions necessary to assume the judiciary in accordance with the provisions of the Judicial Authority Law, provided that his age is not less than (40) years, and he is among the following categories: 1. Current and former members of the Supreme Court Those who have spent at least 3 consecutive years in their jobs. 2. Current appeals judges who have spent 7 consecutive years in their positions. 3. Current or former law professors at Palestinian universities or recognized universities in Palestine who have spent at least 3 consecutive years as a professor, or an associate professor who has spent at least 6 consecutive years, or an assistant professor who has spent at least 9 consecutive years. 4. Lawyers who have practiced the legal profession for at least twenty consecutive years. 5. Members of the public prosecution who have spent at least fifteen consecutive years in the position of Chief Prosecutor or higher.


In view of the sensitivity of the jurisdiction, the formation of the Constitutional Court must consist of those who enjoy judicial and human rights competence and integrity, in order to ensure impartiality and impartiality, despite the seriousness of the results of appointments that may overthrow the most sacred legal and philosophical principles - the principle of democracy - but we note this time that the formation of the court does not exceed The provisions of the law regarding appointments in accordance with the provisions of Article (5) of the Supreme Constitutional Court Law, but the spirit of the law has been violated in some appointments; It is difficult to imagine challenging laws that had been drafted and passed by one of the members. This fact will impede fair or retrospective dealing with decisions and laws.


We would like to draw attention to the fact that the new formation excluded women in the judiciary, despite the honorable success stories in the various governorates of the country. Palestinian women have proven their superiority and steadfastness in this specialization, and how appropriate it would have been for Palestine if the formation was fair to half of the society according to the foundations of competence and not a quota or specific titles that brought together the members of the committee.

We would like to point out that Article (21) of the Constitutional Court Law of 2006 stated that the membership of judges ends when they reach the age of 70, and this was amended in Article (1) 10 of 2017 by deleting this age clause. Here we note the importance of experience and expertise built by the years and we stress Although it is not logical to end membership due to its abstract connection with age, but at the same time we hope to witness real governance in terms of appointments and to avoid rotating positions with regard to people with experience and long experience in serving the official sector and who have exceeded the general retirement age.


"Towards the rule of law and the supremacy of the constitution" is a saying adopted by the Supreme Constitutional Court as a vision. We hope that it will guide and follow it to reach the desired goal of embodying the principle of law to build the homeland and the citizen that Palestine deserves.

Dr.. Totah: Assistant Professor of Law, Al-Quds University.
Dr.. Erekat: Assistant Professor of Diplomacy, Arab American University.

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The Supreme Constitutional Court

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