قانون المحكمة الدستورية العليا رقم (3) لسنة 2006م

Law of the High Constitutional Court No. 3 of 2006

The Chairman of the Executive Committee of the Palestine Liberation Organisation,

The President of the Palestinian National Authority,

Having reviewed the Amended Basic Law of 2003 and its Amendments, particularly Article 41 thereof,

Having reviewed the Law of the Civil and Commercial Procedure No. 2 of 2001,

Having reviewed the Law of the Judicial Authority No. 1 of 2002,

Having reviewed the Law of the Fees of the Regular Courts No. 1 of 2003,

Having reviewed the draft law submitted by the Council of Ministers,

Based upon the approval of the Legislative Council during its session of 12 December, 2005,

Following the approval by the Legislative Council of the observations of the President of the Palestinian National Authority on 13 June, 2006, and

In the name of the Arab Palestinian people,

I hereby promulgate the following law:

Part I. The Formation of the Court

Chapter I. General Provisions

Article 1

1. Pursuant to the provisions of this law, a 'High Constitutional Court,' which shall be an independent, self-existent juridical entity, shall be established in Palestine and shall be referred to hereinafter as 'the Court.'
2. The seat of the Court shall be in the city of Jerusalem. The Court shall take a temporary seat in the cities of Ramallah and Gaza as necessary.

Article 2

The Court shall consist of a President, a Deputy, and seven (7) judges. The Court shall convene before a panel of the President and at least six (6) judges, and it shall issue its decisions by a majority vote.

Article 3

The sessions of the Court shall be presided over by the President. If the position of the President becomes vacant, or during his absence, or due to an impediment preventing the exercise of his responsibilities, it shall be presided over by his Deputy, followed by the next most senior from among the members.

Article 4

Each person appointed as a member in the Court shall be required to meet the general requirements necessary to assume a judicial position pursuant to the provisions of the Law of the Judicial Authority, provided that he is not younger than forty (40) years of age and is from among the following categories:

1. Present or former members of the High Court who spent in their functions at least five (5) consecutive years.
2. Current Presidents of the Courts of Appeal, who spent in their functions at least seven (7) consecutive years.
3. Current or former professors of law at Palestinian universities or acknowledged universities in Palestine, who spent in their function at least five (5) consecutive years, or associate professors who spent at least ten (10) consecutive years.
4. Lawyers, who practiced the legal profession for at least fifteen (15) consecutive years.

Article 5

1. The first formation of the Court shall be done through the appointment of the President of the Court and its judges by decision of the President of the National Authority in coordination with the High Judicial Council and the Minister of Justice.
2. The President and the judges of the Court shall be appointed by decision of the President of the National Authority, based upon the nomination of the General Assembly of the High Constitutional Court.

Article 6

A member of the Court may not assume any other function or exercise a commercial, political, or partisan activity. If he is affiliated with a party, he must resign before swearing the legal oath.

Article 7

Prior to the commencement of their activities, the President of the Court, his Deputy, and the judges shall swear the following oath before the President of the National Authority and in the presence of the Speaker of the Legislative Council and the President of the High Judicial Council:

'I swear by the Almighty God to respect the Constitution and the Law and to rule with justice.'

Chapter II. The General Assembly of the Court

Article 8

1. The General Assembly of the Court shall consist of all of its members and shall have the power, in addition to what is set forth in this law, to issue bylaws that determine the procedures of the examination of matters related to the organisation of the Court, the criteria of competency and experience necessary to be fulfilled by its judges and its internal matters, the distribution of functions among its members, and all matters pertaining to them. It must also be consulted with regard to draft laws related to the Court before they are referred to the Legislative Council, provided that it expresses its opinion in writing within one (1) month from the date of receving such draft laws.
2. The General Assembly may delegate to the President of the Court or a committee of its members some of its powers by decision of absolute majority.

Article 9

The General Assembly of the Court shall exercise all of the powers assigned to the High Judicial Council pursuant to the Law of the Judicial Authority with regard to the members of the Court.

Article 10

1. The General Assembly shall convene by invitation of the President of the Court or by the request of one-third (1/3) of its members. Its convention shall not be deemed correct except by the attendance of the majority of its members. The President of the Court or his representative shall preside over the Assembly.
2. The General Assembly shall issue its decisions with the absolute majority of the votes of the attendants. In the case of a tie, the side which includes the President shall prevail. Unless the voting is confidential, the proposal shall be rejected.
3. The minutes of the General Assembly shall be recorded in a register to be signed by the President of the Court and the Secretary of the General Assembly.

Article 11

1. By decision of the General Assembly with absolute majority, a Provisional Committee shall be established under the presidency of the President of the Court and the membership of two (2) or more members. It shall assume the powers of the General Assembly in urgent matters during judicial vacation at the Court, as well as other functions assigned to it by the General Assembly.
2. The decisions issued by the Provisional Committee during the judicial vacation must be submitted to the General Assembly in its first meeting; otherwise, such decisions shall become null and void and of no legal effect. If such decisions are submitted to the General Assembly but not approved by absolute majority, they shall become null and void and of no legal effect.

Chapter III. Entitlements and Obligations of the Members

Article 12

The members of the Court (in conformity to the entity and independence of this Court) shall be subject to the provisions related to the recusal of judges, their non-deposability, obligations, resignations, leaves and secondment as set forth in the Law of the Judicial Authority.

Article 13

The President and the members of the Court shall earn salaries, increments, and allowances determined for the President and members of the High Court pursuant to the Law of the Judicial Authority.

Article 14

1. The service of a member shall terminate by default when he reaches seventy (70) years of age.
2. The pension or remuneration of the member shall be assessed pursuant to the provisions of the Law of Public Retirement.

Article 15

1. Regarding the recusal, dismissal or dispute of the members of the Court, the provisions set forth under Parts XI and X of the Law of the Civil and Commercial Procedure shall apply. The Court shall adjudicate the request for recusal or dismissal or the action of dispute with all its members, excluding the disputant member or the one whose recusal or dismissal is required, provided that the number of the members on the panel of the Court is odd.
2. Recusal, dispute or dismissal of all members of the Court or some of them shall not be accepted if the number of the remaining members is less than seven (7).

Article 16

1. If a matter is imputed to a member of the Court that may infringe upon confidence or eligibility or violate intentionally or gravely the obligations and requirements of his function, the President of the Court shall submit the matter to the Provisional Committee of the Court.
2. If the Provisional Committee following the summoning of the member to hear his statements decides that there is ground to investigate him, the President of the Court shall appoint a committee of three (3) members from the General Assembly to interrogate him. The member who is referred to interrogation shall be deemed at compulsory leave with full salary from the date of such decision.
3. Upon completion, the interrogation shall be submitted to the General Assembly, which shall convene in the form of a disciplinary council, with the exception of its members who took part in the interrogation or impeachment, to issue a decision, following the hearing of the defence of the member and the assurance by his defence, by absolute majority on innocence or retirement on pension from the date of the issuance of the decision, without prejudice to any other penalty set forth by the law. The decision shall be final and not subject to challenge by any means.

Article 17

1. Apart from a case where a member of the Court is apprehended in the immediate commission of a crime, flagrante delicto, a member of the Court may not be arrested or detained, nor may any criminal measures be taken against him, without the permission of the President of the Court.
2. If a member of the Court is apprehended in the immediate commission of a crime, the Attorney-General, upon the arrest of the member of the Court, shall report the matter to the President of the Court within twenty-four (24) hours following the arrest. The Provisional Committee shall decide, following the hearing of the statements of the member, either to release him with or without a bail or to continue to detain him for the period of time determined by the Committee. The Committee shall have the right to extend such period.
3. The member of the Court shall be detained and the punishment entailing deprivation of liberty shall be implemented in a location that is separate from those assigned to other prisoners.

Article 18

The Provisional Committee shall be competent to examine the detention of the member of the Court and renew his detention, unless the case is heard before a criminal court that has jurisdiction to hear the matter. Hereby, the Provisional Committee shall be competent thereto.

Article 19

The detention of the member of the Court shall result in his immediate suspension from the acts of his function for the period of his detention. The President of the Court may order to suspend the member from his function during the proceedings of investigation of a violation imputed to him. In such case, the provisions set forth in Article 16 shall apply.

Article 20

No criminal action shall be filed against a member of the Court except by permission of the President of the Court, who may determine the Court that shall hear the action, regardless of the rules of territorial jurisdiction set forth in the law.

Article 21

1. The service of a member of the Court shall terminate in any of the following cases:

• Reaching seventy (70) years of age.
• Resignation.
• Incapacitation.
• Disability, for any reason whatsoever, to perform his function.
• Death.
• Retirement on pension.
• Loss of nationality.

2. The decision regarding the termination of service shall be issued by the President of the National Authority based upon the request of the General Assembly of the Court.

Article 22

The termination of the service of a member of the Court for any reason shall not result in the loss of an entitlement to pension or compensation.

Article 23

1. A member of the Court may not be absent or cease working without an excuse and without having notified the President of the Court.
2. The member shall be deemed resigned if he ceases working for a period of fifteen (15) consecutive days without an excuse acceptable to the President of the Court, even if this occurs after the end of a period of leave or secondment.
3. The resignation of the member shall be deemed accepted two (2) weeks from the date of its submission to the President of the Court. A decision of its acceptance shall be issued by the President of the National Authority as of the date of its submission.

Part II. Jurisdiction and Proceedings

Chapter I. Jurisdictions

Article 24

The Court shall have exclusive jurisdiction over the following:

1. Oversight of the constitutionality of laws and regulations.
2. Interpretation of the provisions of the Basic Law and the laws in the event of conflict over the rights, obligations, and capacities of the three authorities.
3. Adjudication of conflicts of jurisdiction between judicial authorities and authorities with judicial jurisdiction.
4. Adjudication of conflicts which arise with regard to the execution of two contradictory final judgements, one of which is issued by a judicial authority or an authority with a judicial jurisdiction and the other by another authority.
5. Adjudication of challenges regarding the loss of legal capacity by the President of the National Authority pursuant to the provisions of paragraph 1c of Article 37 of the Amended Basic Law of 2003. Its decision shall become effective starting from the date of its approval by the Legislative Council by the majority of two-thirds (2/3) of the members of the Legislative Council.

Article 25

1. The Court shall, in the course of the performance of the jurisdictions set forth in Article 24, be entitled to exercise all the powers of hearing and pronouncing the unconstitutionality of any piece of legislation or act contravening the Constitution fully or partially.
2. Upon the pronouncement of the full or partial unconstitutionality of a law, decree, bylaw, regulation or decision, the Legislative Council or the competent authority shall amend such law, decree, bylaw, regulation or decision in a manner that conforms to the provisions of the Basic Law and the law.
3. Upon the pronouncement of the unconstitutionality of any act, it shall be deemed unenforceable, and the authority which performed it must rectify the situation pursuant to the provisions of the Basic Law and the law, as well as redeem the right to the grievant, compensate him for the damage, or both.

Chapter II. Proceedings

Article 26

With the exception of the provisions of this Chapter, the provisions set forth in the Law of the Civil and Commercial Procedure No. 2 of 2001 shall apply to decisions of referral, actions, and applications submitted to the Court, in a manner that does not contradict the jurisdiction of the Court and the cases adjudicated before it.

Article 27

The Court shall assume judicial oversight over constitutionality as follows:

1. By means of a direct, original action which an aggrieved person files before the Court with reference to the provisions of Article 24 above.
2. If a court or panel with judicial jurisdiction states during the hearing of an action the unconstitutionality of a provision in a law, decree, bylaw, regulation or decision that is necessary for the adjudication of the dispute, it shall halt the action and refer the files without fees to the High Constitutional Court in order to adjudicate the constitutional issue.
3. If the adversaries rebut, during the hearing of an action before a court or a panel with judicial jurisdiction, that a provision in a law, decree, bylaw, regulation or decision is unconstitutional, and the court or panel deems that the rebuttal is serious, it shall adjourn the hearing of the action and determine for the person raising the rebuttal an appointment within a period not to exceed ninety (90) days to file an action before the High Constitutional Court. If the action is not filed within the permitted time, the rebuttal shall be deemed as if it had never taken place.
4. If the Court discusses a dispute submitted to it, and, during the proceedings, it becomes clear to the Court that an unconstitutional provision relating to the dispute exists, it shall spontaneously be entitled to adjudicate its unconstitutionality, provided that such provision is in fact linked to the dispute submitted to it in due form.

Article 28

Pursuant to the provisions under the preceding Article, a decision of referral to the Court or a filed pleading must state the legislative provision the unconstitutionality of which is challenged, as well as the constitutional provision whose contravention is claimed and the aspects of the contravention.

Article 29

1. Any concerned person shall be entitled to request the Court to appoint the judicial authority that is competent to hear the action in the case referred to under paragraph 3 of Article 24 above.
2. The subject of the dispute, the judicial authorities who heard it, and all of the evidence and information that they received in its regard must be stated in such request.
3. The submission of the request shall result in the cessation of the relevant action until its adjudication. An official copy of the two judgements with regard to which the dispute occurred shall be attached to the request referred to under paragraph 2 above. Otherwise, the request shall be denied.

Article 30

1. The request for interpretation shall be submitted by the Minister of Justice based upon the request of the President of the National Authority, the Prime Minister, the Speaker of the Legislative Council, the President of the High Judicial Council or a person whose constitutional rights were violated.
2. The legislative provision required to be interpreted must be stated in the request for interpretation, along with the disagreement in enforcement which it raised and the extent of the importance which requires its interpretation in order to achieve the uniformity of its enforcement.

Article 31

Proceedings before the Court may not commence except through a representative of the State or through a lawyer whose period of experience in the legal profession is not less than ten (10) consecutive years. The President of the Court shall appoint a lawyer for a plaintiff who is proven to be insolvent.

Article 32

The clerk of the Court shall record the decisions of referral received by the Court and the actions and requests submitted on the day on which they are received or submitted in a register designated thereto. The clerk of the Court shall inform those concerned of the decisions, actions or requests within fifteen (15) days from such date. The Government shall be deemed among those concerned in constitutional actions.

Article 33

The office of the lawyer who signed the initiatory pleading or request, as well as the office of the lawyer who represents the person who is required to reply to the request, shall be a chosen place for both of them, unless any of either party determines itself a chosen place to announce it.

Article 34

1. Any person who receives an announcement of a decision of referral or of an action shall have the right to submit to the clerk of the court within fifteen (15) days from the date of its announcement a note including his remarks enclosed with the supporting documents.
2. The litigant may respond to that by a note and supporting documents within fifteen (15) days from the date of the expiration of the aforementioned period. If the litigant uses his right to respond, the first may comment by a note within the following fifteen (15) days.
3. Following the expiration of the periods set forth under paragraphs 1 and 2 above, the clerk of the Court may not accept papers from litigants and must draw up a protocol in which he states the date of the submission of such papers and the name and capacity of the person who submitted them.

Article 35

1. The clerk of the Court shall submit the file of the action or request to the President of the Court within three (3) days from the date of the expiration of the periods set forth under the preceding Article in order to set the date of the session in which the action or request shall be heard.
2. The clerk of the Court shall notify those concerned of the date of the session pursuant to the Law of the Civil and Commercial Procedure.
3. The appointment of appearance shall occur at least fifteen (15) days after the clerk of the Court has submitted the file in accordance with paragraph 1 above, unless the President of the Court orders, in case of necessity and based upon the request of those concerned, to reduce such deadline to not less than three (3) days. The President of the Court shall explain this matter to them, along with the notification of the date of the session.

Article 36

The Court shall rule on the actions and requests submitted to it in scrutiny without a pleading. If it deems that a verbal pleading is necessary, it may hear the litigants. In such case, the litigants shall not be permitted to appear before the Court without a lawyer. The Court shall have the right to require necessary data or papers and to invite those concerned to interrogate them about the facts and order them to submit complementary documents, notes, and other procedures on the date which it sets forth.

Article 37

The rules of appearance or absence set forth in the Law of the Civil and Commercial Procedure shall not apply to the actions and requests submitted to the Court.

Part III. Judgements and Decisions

Article 38

The judgements of the Court shall be issued in the name of the Arab Palestinian people.

Article 39

1. The Court shall decide to withhold a case for judgement following the closing of the pleading.
2. The Court shall spontaneously adjudicate all subsidiary issues.

Article 40

The judgements and decisions of the Court shall be final and not be subject to challenge.

Article 41

1. The judgements of the Court on constitutional actions and its decisions concerning interpretation shall be binding upon all of the authorities of the State and upon the public.
2. If the Court decides that the provision under review is fully or partially unconstitutional, it shall make it clear in a justified decision that sets out the limits of the unconstitutionality. A provision ruled unconstitutional shall be unenforceable within the limits of the decision of the Court.
3. If the pronouncement of the unconstitutionality is related to a criminal provision, the judgements of conviction which were issued with reference to such provision shall be unenforceable. The President of the Court shall notify the Attorney-General of the judgement immediately after its pronouncement in order to conduct the necessary legal procedures.

Article 42

The draft of the judgement shall be deposited in the file of the action upon its pronouncement, including its pronouncement and causes, and it shall be signed by the panel of the Court.

Article 43

1. The Court shall exclusively adjudicate all disputes related to the execution of judgements and decisions issued pursuant to the Law of Execution in a manner that does not contradict the jurisdiction of the Court and the cases adjudicated before it.
2. The filing of a dispute shall not result in the suspension of the execution, unless the Court so orders, until it is being adjudicated.

Article 44

The provisions of the Law of the Civil and Commercial Procedure shall apply to the judgements and decisions issued by the Court with regard to what is not determined by this law in a manner not contradicting the nature of such judgements and decisions.

Part IV. Fees and Expenses

Article 45

1. A fixed fee, the sum of which shall be one-hundred (100) Jordanian Dinars or the equivalent in legal tender, shall be imposed upon the actions brought before the Court pursuant to this law. The imposed fee shall include all judicial proceedings concerning the action, including the announcement of papers and judgements.
2. The plaintiff must deposit in the treasury of the Court upon the submission of the plea a security, the sum of which shall be one-hundred (100) Jordanian Dinars or the equivalent in legal tender. One security shall be deposited in the case of multiple plaintiffs if they file their action in one plea. The Court shall rule for the seizure of the security in the event of a decision not to admit or reject the action.
3. With prejudice to the provisions of the following Article, the clerk of the Court shall not admit the plea if it is not accompanied by proof of such deposition.

Article 46

1. A person who is proven to be insolvent shall be exempted from the fee fully or partially and the security fully or partially.
2. The President of the Court shall adjudicate the requests for exemption following the review of the supporting documents and the hearing of the statements of the applicant. The President's decision shall be final.
3. The submission of the request for exemption shall result in the interruption of the appointment which is scheduled for the filing of the action concerning unconstitutionality.

Article 47

The provisions set forth under the Law of the Fees of Regular Courts No. 1 of 2003 shall apply to the fees and expenses with regard to what is not determined by this law.

Part V. Financial and Administrative Affairs

Chapter I. Financial Affairs

Article 48

1. The Court shall have an independent annual budget prepared pursuant to the guidelines in accordance with which the General Budget is prepared.
2. The President of the Court shall set forth the draft budget to be submitted to the competent authority upon its discussion and upon the approval of the General Assembly of the Court by an absolute majority. The President of the Court shall be responsible for the implementation of the budget in pursuant to the bylaws issued as per this law.
3. The provisions of the Law of the Organisation of the General Budget and Public Finances shall apply to the budget of the Court and the final account.

Chapter II. Administrative Affairs

Article 49

The Court shall have a Chief Clerk and a sufficient number of working officials and administrative staff. The President of the Court and the Minister of Justice, each one within the limits of his jurisdiction, shall have the supervising authority pursuant to the Law of the Judicial Authority.

Article 50

The provisions of the Law of the Civil Service shall apply to the administrative officials working at the Court.

Part VI. Concluding Provisions

Article 51

All actions and applications before the High Court and which enter as per the provisions of this law into the jurisdiction of the Court shall be referred in their status to this Court immediately following its formation and without fees.

Article 52

The President of the Court shall issue the bylaws of the Court and the decisions required for the enforcement of the provisions of this law following their approval by the General Assembly by an absolute majority.

Article 53

The decisions of the Court and its bylaws issued pursuant to the provisions of this law shall be published in the Official Gazette without expense within a period not to exceed fifteen (15) days from the date of their promulgation.

Article 54

Every provision which contradicts the provisions of this law is hereby repealed.

Article 55

All competent authorities, each one within its sphere of jurisdiction, shall implement the provisions of this law, which shall enter into force thirty (30) days after the date of its publication in the Official Gazette.

Issued in the city of Ramallah on 17 February, 2006 AD, corresponding to 19 Muharram 1426 AH.

Mahmoud Abbas

Chairman of the Executive Committee of the Palestine Liberation Organisation

President of the Palestinian National Authority