Reading the Draft Constitution (5-5)

(1) The Judiciary and the Constitutional Court

The draft constitution adopted in its sixth chapter enshrines the multiplicity of judicial authorities as "judicial institutions separate from each other," which has characterized the Palestinian judicial system for the past two decades, through the establishment of multiple and parallel judicial bodies that operate outside the unified oversight of the Supreme Judicial Council, instead of specialized courts within a single judiciary governed by central management and overseen by a Supreme Judicial Council.

Paragraph two of Article 120 indicated the existence of judicial bodies rather than courts, opening the door to the existence of various judicial authorities; regular, administrative, and religious, etc., which grants each of these authorities the ability to form its own administrative structures, councils, and specific powers in judicial appointments and legislative opinions. This means the fragmentation of the judiciary, the emergence of conflicts over powers, and an increase in costs to the state treasury.

The adoption of multiple judicial authorities in the draft constitution will lead to the establishment of technical departments and supporting administrative structures, in addition to the need for multiple headquarters to enable these "authorities" to carry out their work. This multiplies the number of administrative staff and elevates their administrative ranks, thereby increasing the financial burdens on the public treasury under extremely difficult financial conditions faced by the state. Not to mention the preoccupation of many judges with administrative and technical work due to the multiplicity of judicial authorities. Furthermore, the proportion of salaries for employees in judicial authorities (regular, religious, and constitutional) exceeds 75% of the allocated budget for them.

Statistics published by the judicial authorities (excluding the judicial authority of the security forces) show the weakness in the number of judges themselves, as there are 324 judges in service in the judicial authorities; of whom 247 are in the regular judiciary according to the annual report of the Supreme Judicial Council for the year 2024, 21 in administrative courts until the end of 2024, 9 in the constitutional court, and 47 in the religious judiciary. This signifies two points: that this number does not require multiple departments and administrative and technical structures, or multiple authoritative bodies on one hand, while conversely it requires them to be part of a single judicial body under the "administrative" oversight of a single Supreme Judicial Council on the other hand.

Statistics regarding the number of judges indicate that about 19% are senior judges holding the title of high judge or president of the supreme court in the judiciary, excluding the judicial authority of the security forces, which is 61 out of a total of 324 judges. Statistics from the Supreme Judicial Council show that the members of the Supreme Court constitute about 14% of the total judges of the judicial authority "regular judiciary," while judges of the Supreme Administrative Court represent about 57% of the total judges in the administrative courts (12 judges in the Supreme Administrative Court compared to 9 judges in the administrative court). Meanwhile, the number of judges in the Supreme Constitutional Court is 9 judges and five high judges in the religious judiciary out of a total of 47 judges, approximately 11%.

   (2) Why Abolish the Constitutional Court

The draft constitution elevated the status of the Constitutional Court by making the law regulating its work one of the laws complementing the constitution and explicitly stated it in Chapter Seven in Articles (138 and 141) unlike the judicial authority, even though Article 109 mentioned that. Additionally, it granted it the authority to review the referendum format related to constitutional amendments, indicating a previous oversight power, and it seems there is a confusion between the French system based on the constitutional council, which has the right to prior oversight of legislations and the courts that operate with subsequent oversight of legislations.

This insistence on the existence of the constitutional court is viewed from the other side, i.e., regarding the achievements made by that court in the past years, and its cost to the state treasury based on taxpayers' funds. The website of the Constitutional Court indicated that it accomplished 153 rulings and decisions and disputes over nine years (2016-2025); advisory decisions "i.e., inquiries submitted by official parties" constituted 27% of the total cases reviewed, with 9 judges in the Constitutional Court. In contrast, the Court of Cassation issued 12,241 judgments in four years (2020-2023) with between 24 and 33 judges. Thus, the annual average is about 3000 judgments. This raises the question of the feasibility of having the Constitutional Court compared to the high financial costs it incurs.

The only advantage that came in the draft constitution pertains to the abolition of retirement for judges of the Constitutional Court, as the legislative decree No. 32 of 2022 regarding amending the law of the Supreme Constitutional Court No. (3) of 2006 and its amendments granted the judges of the Constitutional Court a special retirement akin to that of politicians.