NATIONAL JUDICIAL SYSTEMS
The Member State judicial systems are very diverse, reflecting differences in national judicial traditions.
Judicial Systems In Member States – Palestine
This section provides you with an overview of the national judiciary system and court system in Palestine.
Organisation of justice – judicial systems
Introduction about Palestine Judiciary System
Those who have an idea about the legal system in Palestine – throughout the ages – know that it has differed from one period to another due to political, social and economic conditions Palestine went through because of the change in regimes and powers that ruled it. It was under the Ottoman reign for a period of time where the Ottoman legislations were applied, then it went through the British Mandate that has issued several laws, regulations and orders which have been applied to it being one of the United Kingdom colonies.
This continued until the end of the British Mandate on Palestine in 1948, where it was replaced with the Israeli occupation taking over part of Palestine and establishing the so-called State of Israel. Israel issued legislation serving the occupation in the Judaization of Palestinian land. The remainder of Palestine was divided to two territories, one was subject to the Egyptian administration (Gaza Strip), and the other (West Bank) was subject to the Jordanian Administration from 1948 to 1950. Jordanian laws were then applied until 1967 when Israel occupied the remainder of Palestine (Gaza Strip and the West Bank) where it issued numerous Military Orders that caused nullifying and amending several existing laws and regulations to serve the interests of this occupation and give it control over Palestine.
When the Palestinian National Authority (PA) arrived and took over a part of Palestine, the President of the PA, Yasser Arafat issued decision No. 1 of 1994 to continue using laws, regulations and orders existing before 05 June 1967 in the Palestinian territories (West Bank and Gaza Strip) until they are unified.
Palestinian Judicial System
The amended Palestinian Basic Law of 2003 focused on the structure of the Palestinian judicial system in Chapter Six thereof (Articles 97-106). These articles clarified the main features of this system.
The Palestinian Basic Law stipulated the principle of the independence of the judiciary to exercise its powers in all stages of litigation, and clearly stated the establishment of specialized courts such as religious, military, administrative, and constitutional courts.
The High Judicial Council is the body formed according to Article 37 of the Judicial Authority Law No. 1 of 2002 as a representative of the judicial authority.
The multiple courts in Palestine are organized in several laws, such as the Basic Law of 2003, Judicial Authority Law No. 1 of 2002, Law on the Formation of Regular Courts No. 5 of 2001, and specialized laws for specialized courts such as the Constitutional Court or the Anti-Corruption Court.
The judiciary in Palestine is divided into 3 main components:
1. Statutory Judiciary.
2. Sharia Judiciary.
3. Military Judiciary.
I. Regular Judiciary: It is the basic component of the judicial system in Palestine and has two degrees of litigation.
The first degree of litigation includes the following types of courts:
1. Magistrate Courts: They have specific specializations determined in the provision of Article 39 of the Code of Civil and Commercial Procedures No. 1 of 2002, as they have jurisdiction over cases whose value does not exceed JD 10,000, and they have criminal jurisdiction pursuant to with Article 300 of the Penal Procedure Law No. 3 of 2002 in misdemeanor and offense matters.
2. Courts of First Instance: They have jurisdiction over cases whose value exceeds JD 10,000. They are considered courts of general jurisdiction over any case that is not within the jurisdiction of the Magistrate Courts according to Article 41 of the Code of Civil Procedure. On the other hand, the court has criminal jurisdiction according to Article 168 of Criminal Procedural Law No. 3 of 2001 for all felonies and misdemeanors associated therewith.
The second degree of litigation: These courts have jurisdiction over civil and criminal judgments issued by first degree courts (1. Magistrate and First Instance), and they convene in two forms:
1. Courts of appeal in which the court of first instance convenes in its capacity as an appellate court when decisions are issued by the magistrate court.
2. The Main Court of Appeal: which is located in Ramallah, Gaza and Jerusalem, and the Jerusalem Court of Appeal currently convenes in Ramallah. These courts consider the judgments issued by the Courts of First Instance as per the Law on the Formation of Regular Courts No. 5 of 2001 (Articles 15-20).
The Supreme Court: The Supreme Court shall convene with the attendance of at least two-thirds of the number of its members upon the request of its president or one of its panels in the following cases: 1) To renounce a legal principle previously decided by the court, or to reverse a contradiction between previous principles. 2) If the case submitted thereto revolves around a new complex or important legal point.
The Supreme Court consists of: 1. Court of Cassation. 2. The High Court of Justice
The Court of Cassation: It is deemed a legal court as it does not hear the cases on the merits. It is not a third degree of litigation and it has jurisdiction to consider: 1) The appeals submitted thereto by the courts of appeal in criminal, civil and personal status matters of non-Muslims. 2) The appeals submitted thereto by the courts of first instance in their appellate capacity. 3) Issues related to changing the case’s reference. 4) Any requests submitted thereto under any other law.
The High Court of Justice has jurisdiction over the following: It is deemed the administrative judicial authority and has jurisdiction over many administrative cases such as 1) election appeals. 2) The requests submitted by the concerned parties to cancel the regulations, laws, or final administrative decisions affecting persons or funds, issued by public law persons, including professional unions. 3) Requests that are of the type of opposition to imprisonment wherein required the issuance of orders to release unlawfully arrested persons. 4) Disputes related to public jobs in terms of appointment, promotion, bonuses, salaries, relocation, retirement, disciplinary penalties, employee’s suspension, dismissal, and all other matters related to employment. 5) The administrative body’s refusal or abstention from taking any decision that should have been taken as per the provisions of applicable laws or regulations. 6) All administrative disputes. 7) Matters that are not cases or trials but merely petitions or summons beyond the jurisdiction of any court that necessitates adjudication in order to satisfy justice. 8) Any other matters submitted thereto as per the provisions of law.
1. Constitutional Court: It was formed in 2016 pursuant to the decree-law to form the Constitutional Court amending the Constitutional Court Law No. 3 of 2006, and is concerned with:
1. Overseeing the constitutionality of laws and regulations.
2. Construction of the basic law provisions and laws in the event of a dispute over the rights, duties and powers of the three authorities.
3. Settling jurisdiction disputes between judicial authorities and administrative bodies that have jurisdiction.
4. Settling a dispute based on the execution of two contradictory final judgments, one of which was issued by a judicial authority or a body that has jurisdiction and the other from another authority.
5. Deciding on the appeal of the President of the PA losing legal capacity as per the provisions of Clause (1/c) of Article (37) of the Amended Basic Law of 2003, and its decision is deemed effective from the date of approval by the Palestinian Legislative Council (PLC) by a two-thirds majority of its members.
2. Anti-Corruption Court:
It is a specialized court established in 2010 after the issuance of the Anti-Corruption Law of 2010, and it considers cases of administrative and financial corruption that are being investigated by the Palestinian Anti-Corruption Commission (PACC).
3. Election Court: It hears appeals in the electoral process in all its stages.
3. Municipal Court: It hears appeals from citizens and municipalities related to local government affairs and related services.
Administration and Relationship with Ministry of Justice
The budget of the courts is overseen by the Ministry of Justice. Even before the outbreak of the current intifada, Palestinian courts experienced funding difficulties. The courts have continued operating during the intifada, but the closure (which prevents lawyers, litigants, and witnesses from travelling to courts) and the fiscal crises of the PNA (with Israel holding up transfers of tax revenues) have severely diminished their operating capacity.
Because the legislative basis for the courts is still being established, the Ministry of Justice plays a far larger role in court administration than may eventually be the case. The formation of the Supreme Judicial Council in 2000 was a major step toward separating the executive and legislative branches, but the Council has yet to be established in legislation. And the outbreak of the intifada shortly after the establishment of the Council makes its effective operation more difficult.
II. Sharia Judiciary: There is an independent legal judiciary in Palestine, where there are for Muslims, Sharia courts that rule as per the provisions of Sharia law to regulate personal status and it consists of the Sharia Court of First Instance, the Sharia Court of Appeal and the Supreme Court, in addition to the Sharia prosecution. There are for Christian sects, special court systems to regulate personal status to be followed.
III. Military Judiciary: An independent Palestinian military judicial body, concerned with the application of law against the perpetrators of crimes who are members of the Palestinian security forces. This body consists of: the military courts, and the military prosecution, which reports to the head of the military judiciary administratively. The Military Prosecution is presided over by the Military Prosecutor, who, with the assistance of members of the Military Prosecution, receives complaints and reports about crimes committed by members of the Palestinian security forces, and investigates them as per the provisions of Articles (13 and 24) of the Military Code of Criminal Procedure of 1979.
Last Updated March 12, 2021