Document of The World Bank TECHNICAL ANNEX TO THE MEMORANDUM OF THE PRESIDENT WEST BANK AND GAZA LEGAL DEVELOPMENT PROJECT.

Transcription

1 Public Disclosure Authorized Document of The World Bank Report No. T-7133-GZ Public Disclosure Authorized TECHNICAL ANNEX TO THE MEMORANDUM OF THE PRESIDENT Public Disclosure Authorized WEST BANK AND GAZA LEGAL DEVELOPMENT PROJECT May 14, 1997 Public Disclosure Authorized West Bank and Gaza Program Middle East and North Africa Region

2 Currency Equivalents (As of February 13, 1997) Currency Units in use = New Israeli Shequalim (NIS) and Jordanian Dinar (JD) US$ 1.00 = NIS USS 1.00 = JD JD NIS WEIGHTS AND MEASURES Metric System I ha= 10,000 m 2 ABBREVIATIONS IBRD International Bank for Reconstruction and Development IDA International Development Association MOJ Ministry of Justice MOPIC = Ministry of Planning and International Cooperation NGO = Non-Governmental Organization PLO = Palestine Liberation Organization TATF = Technical Assistance Trust Fund TFGWB 5 Trust Fund for Gaza and West Bank WBG = West Bank and Gaza FISCAL YEAR January I to December 31 Vice President Country Manager Country Officer Task Manager Legal Counsel Peer Reviewers Kemal Dervis Odin Knudsen Josie Bassinette Hadi Abushakra Hadi Abushakra Ian Newport Barbara Nunberg

3 TECHNICAL ANNEX WEST BANK & GAZA LEGAL DEVELOPMENT PROJECT TABLE OF CONTENTS I. INTRODUCTION... 1 II. INSTITUTIONAL SETTING... 4 HI. PROGRAM AND PROJECT DESCRIPTION...6 IV. UNIFICATION AND DEVELOPMENT OF LEGISLATION...9 V. LEGAL INFORMATION VI. ALTERNATIVE DISPUTE RESOLUTION VII. COURT ADMINISTRATION VIII. J1UDICIAL EDUCATION IX. STEERING COMMITTEE AND PROJECT IMPLEMENTATION UNIT X. PROJECT IMPLEMENTATION PLAN XI. SUMMARY AND DETAILED COST TABLES MAP IBRD No (following Chapter XI)

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5 WEST BANK & GAZA LEGAL DEVELOPMENT PROJECT TECHNICAL ANNEX I. INTRODUCTION 1.1 The Declaration of Principles (DOP) and subsequent agreements between the Government of the State of Israel and the PLO, culminating in the signing of the Interim Agreement on September 28, 1995 (collectively, the Peace Accords), have ushered in a new era in Israeli-Palestinian relations and, in so doing, have laid out a framework for a staged resolution of a long-standing conflict. 1.2 After twenty-seven years of Israeli military occupation, governance in WBG is being gradually handed over to the Palestinians. The Peace Accords have established a complex structure of governance which, in essence, divides WBG into three areas, each of which featuring a different degree of Palestinian self-rule. Currently, all major cities in the West Bank and all of the Gaza Strip, save for Israeli settlements and military areas, have come under the rule of the PA. The PA's powers are limited, however, in areas outside the major cities, including some rural areas of the West Bank, where authority in the spheres of security, land and natural resources is still in Israeli hands. Most of the unpopulated areas of the West Bank are still under full Israeli jurisdiction. 1.3 The confusion deriving from the jurisdictional division of the West Bank, and the resulting multiplicity of applicable legal regimes, is compounded by the initial duality in legal regimes in the West Bank and the Gaza Strip which prevents the application of a uniform set of laws across territories under Palestinian jurisdiction. The West Bank was an integral part of Jordan from 1950 until occupied by Israel in Its legal regime is hence none other than the pre-june 1967 Jordanian regime, a civil-law inspired regime supplemented and modified by Israeli military orders of the post-june 1967 era. 1.4 The situation in the Gaza Strip is different. Though administered by Egypt following the 1948 war,' the legal regime currently in force in the Gaza Strip is the one that applied in Palestine prior to Based on an understanding that their presence was a temporary arrangement pending resolution of the Palestinian question, the Egyptians purposefully avoided extensive legislating in the Gaza Strip. The constitution of Palestine of 1962 (which, interestingly, has not been repealed yet) is the main legislative piece to be promulgated during the Egyptian administration period.

6 The existing legal frameworks in the West Bank and the Gaza Strip are generally recognized as not fully adequate to support a market economy, let alone a modem one. Not having kept pace with developments in the global markets, many of the laws in WBG are in need of modernization and would constrain the ability of domestic firms to achieve regional, let alone intemational, competitiveness. The laws are somewhat antiquated. In the West Bank, no modernization of economic, business and financial laws has taken place since The situation in the Gaza Strip is worse. There, economic, business and financial laws are deemed generally inadequate in the context of modern commercial and financial transactions. Moreover, the two legal frameworks differ from one another, appear to be laden with cumbersome procedures in relation to major economic activities and are fraught by a lack of regulations in crucial economic areas such as banking, insurance and capital markets. 1.6 Impediments to a modem market economy are not only found at the written law level but also at the dispute resolution, enforcement institutions and human resource levels, and all aspects of the rule of law and administration of justice. The judiciary in WBG is plagued by many an ailment, chief among which are a lack of clarity as to its independence, (there is no constitution or basic law guaranteeing the principle of separation of powers, and judges are appointed by the Minister of Justice and by the President of the High Court), outdated procedures and management systems, inadequate facilities, understaffing and a shortage of qualified judges and financial resources. The Intifada years ( ) had a devastating effect on the functioning of the judiciary. The loss of control that marked that period completely undermined and, to a large extent, marginalized its role. Meanwhile, a number of judges reached retirement age or passed away, and few adequate replacements have been appointed. This has resulted in a substantial backlog of cases which, in turn, has slowed down the judicial process considerably. 1.7 Legal information is another area with an acute lack of resources. There are no legal or judicial data bases in either the West Bank or the Gaza Strip. Court decisions, including those of the Court of Appeals and the High Court, are not regularly published. Save for a monthly publication by MOJ featuring the texts of recently enacted pieces of legislation, no legal publications or periodicals exist. Legal research and development are at an embryonic stage mainly due to the absence of graduate legal education institutions (Birzeit University Law Center has started offering a Masters program only last year). 1.8 The absence of adequately trained staff, in sufficient numbers, pervades the judicial and legislative landscape in WBG and impedes the functioning of the judiciary and the law drafting ability of MOJ, and that of the Palestinian Council too. Members of the Palestinian Council are said to be currently operating without the assistance of staff to review Cabinet-introduced legislation or to draft their own bills.

7 - 3 - II. INSTITUTIONAL SETTING 2.1 The Palestinian Council. On January 20, 1996, Palestinian residents of the West Bank, East Jerusalem and the Gaza Strip elected an 88-member Palestinian Council (the Council), together with the Ra'ees of the Executive Authority of the Palestinian Authority, who is also the 89th member of the Council. Under the terms of the Peace Accords, the Council will exercise limited legislative authority over the parts of the West Bank and Gaza Strip under the jurisdiction of the Palestinian Authority for an interim period not extending beyond May 4, The Council began its work facing several significant limitations. The Peace Accords prevent the Council from legislating on final status negotiations issues (Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis) and Israeli control over the WBG borders limits the Council's ability to address day-to-day Palestinian needs. 2.3 The Basic Law and the Standing Orders. The Council has taken several steps toward establishing its internal mechanisms. It has elected a Speaker, reviewed and adopted Standing Orders, formed committees and elected committee officers. The review and promulgation of the Basic Law is a critical next step. Until the Basic Law is adopted, important questions concerning the powers of the institution and those of the two other branches of government remain unresolved. 2.4 The latest draft of the Basic Law separates and defines the executive, legislative and judiciary functions in a manner that is generally consistent with democratic constitutional norms. Some of the provisions of the draft Basic Law include the power of the legislative authority to approve laws, debate government policy and approve the government's budget. The judicial authority is described as an independent authority to be exercised by the High Court and other courts. The President of the High Court is both the head of the judicial authority and the chief judge. The President of the High Court is appointed by presidential decree with the approval of the High Judiciary Council. The composition, powers and procedures of the latter Council are also provided for in the draft Basic Law. The Basic Law will also provide the rules governing the appointment, transfer, secondment and promotion of judges. 2.5 The Standing Orders provide the basic elements of a viable committee system by making committee consideration a mandatory stage in the legislative process. Each of the eleven committees has oversight responsibilities. In addition, the Standing Orders allow committees to decide to open their meetings to the public. Calendar and scheduling provisions in the Standing Orders give the Council sufficient control over its own schedule. The Standing Orders also provide immunity to Council members from all criminal charges (except for members apprehended in flagrante delicto), protect members and their possession from being searched and set forth the procedures for Council consideration of a request to deprive a member of immunity. The Council will meet in two regular sessions from February to June and from September to December.

8 Extraordinary sessions can be called by the Cabinet or by one quarter of the Council members. 2.6 The Legislative Process. Draft laws can be introduced by the Cabinet or by one or more Council members and are first considered in committee and then in plenary. The question of whether a draft law adopted by the Council can be vetoed by the Ra'ees awaits the completion of the Basic Law. In practice, however, Diwan Al-Fatwa Wal Tachri'e (the Council for Legislation and Advice) within MOJ (the Diwan) is the agency responsible for drafting legislation (even though the Council is not precluded from doing so). 2.7 The Palestinian Authority has established the following steps for the development and review of draft legislation: (a) a sectoral ministry prepares a draft law or an outline/concept of a law; (b) the Diwan either drafts the new legislation or, in cases where a sectoral ministry has prepared the draft legislation, finalizes it; (c) the Diwan distributes the draft legislation to all ministries which have 30 days to comment on it; (d) the Diwan incorporates the ministries' comments, if any, in the final draft which is then forwarded to the Cabinet for approval before submission to the Council for enactment. 2.8 The Court System. There are two categories of courts in the West Bank and Gaza: regular courts and special tribunals. In the West Bank, the regular courts include magistrate courts established in every sub-district and a court of first instance established in every district. The Court of Appeals sits in Ramallah. It also sits as a High Court of Justice and hears appeals against administrative decisions by the public sector. The structure of regular courts in Gaza follows more closely English law with the first degree court being magistrate courts, then district courts then the High Court which can also sit as an appeal court. The jury system is used neither in Gaza nor in the West Bank. Personal status cases including succession, guardianship and matrimonial matters are heard by religious courts. 2.9 Law Journals and Case Reports. The Jordanian Bar Association has published a monthly law journal since January 1953 containing articles on the law and the decisions of the High Court in civil and criminal cases, as well as the decisions of the Jordanian High Court of Justice. Although precedents are not binding on West Bank courts, judges refer to the precedents of Jordanian courts and follow them. In Gaza, two volumes of selected judgments of the court of appeals and the High Court are available, the first covering the period and the second covering the period The Legal Profession. All registered lawyers may appear before the courts, prepare cases, carry out transactions in the various official departments and submit trademark and patent registrations. The law requires publicly-held companies to be represented by a lawyer. Lawyers may only notarize the signature of their clients on special powers of attorney given to them to represent their clients before the courts or to carry out other legal work on their behalf. Otherwise, notarization is undertaken through a notary public. Qualifications required to practice law include obtaining a law degree

9 -5 - from a recognized law school and completion of two years' training at a lawyer's office. In Gaza, lawyers-in-training must pass a qualifying examination before they are admitted to the bar. There are two bar associations, one in the West Bank and one in Gaza, and more than 2,500 qualified practicing lawyers. Most lawyers obtained their law degrees from universities in Egypt, Jordan, Lebanon and Syria. Judges do not undergo special training.

10 - 6- III. PROGRAM AND PROJECT DESCRIPTION 3.1 Palestinian Rule of Law Strategic Development Plan (the Program). In October 1996, MOJ developed (with assistance from Australian International Legal Resources, Inc., an Australian NGO) an investment program called the Rule of Law Strategic Development Plan whose main objectives include the modernization of the legal framework, the strengthening of the judiciary and the Attorney General's office, the construction of new courthouses and improvement of judicial infrastructure, the development of a legal and judicial database and the development of an independent forensic science capability. Implementation of the Program is expected to take place over several phases and will require international as well as local assistance. The Program was disseminated to the executive and judicial branches of the Palestinian Authority, as well as the donor community, and consensus has been reached about the areas of reform. 3.2 Program and Project Concept, Design and Development Impact. IDA recognizes that the proposed project would be a mere first step toward the long-term goal of establishing the rule of law in WBG, an undertaking that will require assistance well beyond what is proposed under the project. The project would consist of a slice of the Program, and would represent the highest priorities of MOJ and the judiciary. It would comprise five self-contained components. IDA's approach to this operation would accommodate donors wishing to partake in the financing of the Program or the project. If donor financing were to become available for one or more components of the project, IDA would be ready to accommodate these additional funds and finance other components of the Program. This is consistent with the catalytic approach to donor cofinancing that has been used by IDA in other projects in WBG. In addition, IDA has been assisting the PA in identifying sources of financing for the Program as a whole, primarily for the construction of two courthouses in Ramallah and Gaza City. IDA has appraised the need to construct these courthouses, found them to be necessary and has reviewed preliminary courthouse construction plans and designs. When financing for this component of the Program becomes available, detailed engineering designs would need to be developed before construction could commence. Procurement arrangements for this component can only be confirmed after the source of financing has been identified, since the respective donor might have specific requirements (tied financing for example). Should the donor entrust IDA, under trust fund arrangements, with the administration of the donor's funds, IDA's procurement guidelines would then apply Project Objectives and Description. The objectives of the project would be to assist the PA in (a) starting the process of putting in place a legal framework adequate to support a modern market economy and encourage the growth of the private sector; and (b) increasing the efficiency and predictability of the judicial process. The legal framework would be improved by unifying and developing legislation and disseminating needed legal information. The judiciary would be strengthened by

11 - 7 - providing judges and court personnel with new case management techniques, information technology and mediation procedures which would allow cases to be resolved in an efficient and effective manner; and by improving the quality of judicial training. Through these components, the judiciary should experience efficiency gains and improvements in the quality of service delivered to the public, while improvements in the legal framework should provide greater clarity to the judiciary, as well as investors. The project would support the PA's efforts to (i) unify and develop the existing legal framework to help provide a hospitable environment for market-oriented activities; (ii) improve the judiciary's administrative and case management procedures, and reduce case backlog; (iii) introduce selected training programs for judges; (iv) expand the use of alternative dispute resolution mechanisms within the judiciary; and (v) disseminate legislation and court precedents to the legal, judicial, academic and business communities, and the public at large The trust fund credit would be made to the PLO for the benefit of the PA. To that end, the PLO would enter with the PA into a subsidiary agreement (the Subsidiary Agreement) under which the PLO would pass on to the PA the trust fund credit's proceeds for the latter to implement the Project. MOJ would be the implementing agency. The trust fund credit would finance consulting services, training and the purchase of goods through the following components (expressed in their base costs): Unification and Development of Legislation: US$1.07 million; Court Administration: US$1.52 million; Judicial Training: US$922,000; Alternative Dispute Resolution: US$660,000; Legal Information: US$385,000. Total project costs are estimated at US$5.624 million Component 1: Unification and Development of Legislation. (US$1.07 million). Building on the compilation of existing legislation in WBG which is on-going, the MOJ would establish commissions consisting of staff from MOJ, and other local experts in the subject under review, if any. The trust fund credit would finance the services of outside legal experts who would, as members of these commissions, assist in the drafting of legal texts and advise on the substance of subject matters. MOJ would, at the start of each year, prepare a work program setting out the priority areas of the law to be unified in the course of said year. This component would also finance the preparation of diagnostic and other studies and the carrying out of related ancillary activities The commissions would, on a case-by-case basis, prepare research materials, propose new draft legislation (or amendments to existing legislation) and hold workshops to discuss the new proposed legislation. Areas of the law to be covered by this activity include: (a) contracts; (b) property rights; (c) company and partnership; (d) agency and distributorship; (e) finance; (f) insurance; (g) private international; (h) public international; (i) labor; and (j) customs Component 2: Court Administration. (US$1.52 million). The Court Administration component would be a fundamental element in the overall goal of improving the capacity of the judiciary. The goal of the component would be to improve

12 -8 - the central administrative function, establish a planning function, establish personnel classification system, improve records management, improve judicial statistics and management information systems, and develop standard legal forms Component 3: Judicial Training. (US$922,000). The main objective of the judicial training component would be to support an impartial, effective, competent and efficient judiciary. This component would support the development of a judicial education structure and curriculum under the guidance of a judicial committee (which has already been established by order of the President of the High Court), establish a resource center, develop judicial education standards, train judicial educators, develop a long range training plan, establish internal and external programs, and develop teaching materials and codes of ethics Component 4: Alternative Dispute Resolution Mechanisms. (US$660,00). The main objective of this component would be to address some of the principal problems confronting the judiciary including fairness and effectiveness, as well as provide the private sector with needed expertise in commercial disputes. This component would include education of the legal professionals about alternatives to judicial dispute resolution; a pilot mediation program, within the judiciary, for commercial cases in Gaza and Ramallah; and development of draft legislation that would introduce appropriate alternative dispute resolution mechanisms Component 5: Legal Information. (US$385,000) Assistance would be provided to the PA in improving access to legal information for the public and legal community, through (i) the enhancement of law libraries in the Ministry of Justice and the Judiciary to serve as reference centers for the MOJ, the judiciary, private practitioners, academics, business people and the public at large; (ii) the support for publication and dissemination of court decisions and laws, and development of bench manuals for judges and court support staff; (iii) support for a legal information connection to assist MOJ in researching for legislative drafting; and (iv) the establishment of a legal data base in MOJ to support the dissemination of legislation.

13 -9- IV.UNIFICATION AND DEVELOPMENT OF LEGISLATION TERMS OF REFERENCE 1. Background. The law of the West Bank and Gaza is a mosaic, comprised of many pieces of legislation inherited from different historic eras and reflecting the succession of powers in that region. The Ottomans introduced an extensive set of laws part of which is still applicable to this day. The British mandate over Palestine ( ) modified and supplemented Ottoman law in certain areas with English-modeled legislation, including authentic codification of English common law and the doctrines of equity. In other areas, Ottoman law continued to apply and British mandate legislation only supplemented it. Following the unification of the two banks of the Jordan River in 1950, Jordanian law was gradually applied in the West Bank and replaced British mandate law in most areas. Jordan reversed the process that the British had started and introduced legislation modeled after the laws of other Arab countries, such as Egypt, which, themselves, were mostly modeled after French civil law. Gaza, on the other hand, came under Egyptian administration during the period and managed to maintain its Britishinfluenced legal system throughout that period. Following the Israeli occupation of the West Bank and Gaza in June 1967, Israel introduced over 1,400 military orders. Jordanian, British and Ottoman legislation that was not modified by the military orders remained in force. The Palestinian Authority, upon its inauguration, issued a resolution giving effect to all laws in force in the West Bank and Gaza prior to June 5, The above resulted in the existing legal frameworks in the West Bank and Gaza being generally unknown to the international business community. Aside from being unknown, they are recognized as not fully adequate to support a market economy, let alone a modem one. Not having kept pace with developments in the global markets, many of the laws are in need of modernization and would constrain the ability of domestic firms to achieve regional, let alone international, competitiveness. Many laws are also antiquated. In the West Bank, no modernization of economic, business and financial laws has taken place since The situation in Gaza is worse. There, economic, business and financial laws are deemed generally inadequate in the context of modern, financial transactions. Moreover, the two legal frameworks differ from one another and are fraught by a lack of regulations in crucial economic areas such as banking and capital markets. As a prelude to this component, the Bir Zeit University Law Center (the Law Center), following a request by the Diwan, has contracted with the Palestinian Economic Council for Development and Construction to compiling existing legislation in each of the West Bank and Gaza, on a subject-by-subject basis, in accordance with an order of priority agreed upon with the Bank. Compilation activities are on-going. 2. Objective and Strategy. The objective of this component is to assist the Palestinian Authority in establishing, through the unification of existing laws, a comprehensive legal

14 - 10- framework conducive to promote a favorable environment for private sector development and stimulate foreign direct investment in the West Bank and Gaza. To achieve the above objective, the Diwan will set up, every time it receives legislation compiled by the Law Center in a given area, ad-hoc commissions consisting of lawyers from the Diwan, as well as outside lawyers, if need be. The Diwan will then, without delay, employ a team of experienced lawyers with expertise in the area of the law for which legislation will have been compiled (the Consultants) to work, as members of the commission, on drafting new legislation. The new legislation is meant to replace existing legislation and should be prepared with utmnost concern for coherence, practicability and relevance to the Palestinian Authority's economic policies. In some cases, the drafting may have been done by another office (lawyers from the Diwan or lawyers financed under other Projects); in such cases, the Consultants' activities will focus primarily on commenting on such drafts. Once drawn-up, the Diwan will forward draft legislation to the Quality Insurance Unit within the Ministry of Planning and International Cooperation (QIU), to be established in the first half of 1997 under a Project financed by the United States Agency for International Development and whose main function is to ensure compliance of draft legislation with the Palestinian Authority's economic policies. Once QIU approves a draft, it retums it to the Diwan which, in turn, sends it to other Ministries and relevant external entities or agencies, as the case may be, which have thirty (30) days to comment on the text. Comments are then passed on to the Diwan for incorporation and submission to the Council of Ministers which, following endorsement of the draft laws, will send them to the Palestinian Council for enactment. Areas of the law to be covered by this activity include: (i) contracts and property rights (real and personal); (ii) company and partnership law; (iii) commercial (agency and distributorship) law; (iv) banking and finance; (v) customs law; (vi) insurance law; (vii) private international law; (viii) public international law; and (ix) labor law. 3. Activities and Outputs. The Consultants will: (a) Assess the main shortcomings of each set of legislation (the West Bank model and the Gaza one), present successful approaches adopted by other countries, particularly regional ones, and propose options for the unification of the two sets of legislation into one modern legislative text. (b) Discuss major reform options with the Ministry of Justice and other Ministries of the Palestinian Authority if necessary, and, subsequently, draft texts that reflect the option selected by the Ministry of Justice. (c) Draw-up modern legislation suitable for the economic climate, legal tradition and social norms of the West Bank and Gaza. (d) Organize and participate in workshops and conferences held by the Diwan to discuss new draft legislation with interested parties and seek views and comments thereon.

15 (e) Prepare, if requested by the Steering Committee, diagnostic, preparatory and other studies, and carry out such additional activities as may be necessary to achieve the objectives of this component of the Project. 4. Consultants' Qualifications. For each area of the law for which existing legislative texts have been compiled, the Consultants, who may be individual lawyers, a law firm or a faculty, will provide at least two (2) lawyers who (a) have at least ten (10) years experience each, either as practicing attorneys or as academicians, and who are recognized as highly competent in their fields; (b) are familiar with one or more regional legal systems, including the local legal system; and (c) proficient in drafting legislation directly in the Arabic language. 5. Work Plan. The following schedule summarizes the estimated timetable for producing a new piece of legislation and the sequencing of tasks at hand: a. Estimated time for the Consultants to familiarize themselves with legislation in a specific area of the law: two (2) weeks. b. Estimated time for the drafting stage: four (4) weeks. c. Estimated time for input from the QIU: two (2) weeks. d. Estimated time for assessment of the draft by relevant Ministries and other entities: four (4) weeks. e. Estimated time for incorporating comments into final draft for submission to Council of Ministers: two (2) weeks. 6. Workshops. Two (2) workshops will be held (one in the West Bank, the other in Gaza) following finalization of a draft piece of legislation. The workshops will be attended by, among others, local lawyers, local judges and members of the business community. International experts may also be invited to give the benefit of their own experiences and those of their countries. 7. Timetable. This component is expected to commence on September 1997 and last over the life of the Project.

16 V. LEGAL INFORMATION TERMS OF REFERENCE BACKGROUND As part of the Legal Development Project, there will be a legal information component which will disseminate existing laws, as well as those to be passed in the future, make court decisions available to the judges, establish law libraries and provide the legal community with access to international legal developments. Neither the Ministry Of Justice nor the Judiciary have access to legal materials that will guide their work and assist in their decision-making process. In addition, the public in general and the legal community in particular have limited access to legislative texts, court decisions and general information about the legal process. This component will include the provision of law books for the libraries of the Ministry of Justice and the Judiciary; the publication of laws, judgments of the courts, a computer link with the Library of Congress, and Legal Data Base in the Ministry of Justice. LAW LIBRARIES FOR THE DIWAN, THE JUDGES AND THE ATTORNEY GENERAL In an effort to provide the necessary information on the current laws and regulations, law books will be provided to the Diwan, the judiciary's libraries, and to the individual courts. This component will finance the purchase of necessary books for these libraries. A judicial education committee appointed by the President of the High Court will determine the required library list of books necessary for each court and the libraries located in the courts. This will include at the minimum the statutes and other basic texts. In an effort to improve the access to legal information, the component will also finance a subscription to a legal information services, and the training of two librarians in the courts (one from the West Bank and one from Gaza). LEGAL PUBLICATIONS This component will support the dissemination of judgments of the court in a timely fashion that can then be disseminated to the judges in the WBG. Bench Manuals for judges and manuals for court support staff will also be developed. In addition, the component will support the publication in the official gazette and dissemination of the laws which are currently under preparation. These publications would be disseminated to the PA, the judiciary, law libraries and the public. See Terms of Reference for Judicial Training. LEGAL INFORMATION In an effort to support the legislative drafting efforts of the Ministry of Justice, this component will support a computer link with the global network of the Library of

17 Congress in Washington, D.C. This will allow the Diwan to access laws from all over the world which will assist them in researching for legislative drafting. LEGAL DATA BASE As new laws are passed by the PA, this component will support the development of a legal information system which includes these laws on diskette, as well as through the internet. This component would also support the dissemination of these laws to the Judiciary, the various Ministries, and the public at large. This will complement the component on Legal Drafting (see Terms of Reference for Legal Drafting). TIMETABLE This component is expected to last over the life of the Project. It will have the following structure of activities: Law Libraries for the Diwan, Judges and the Attorney General: Appointment of the Judicial Education Committee 5/97 Committee determines list of texts 7/97 Purchase of texts for courts and libraries 9/97 and dissemination Training for (2) law librarians in Judiciary 1/98 1/99 Yearly subscription for legal information services 1/98-12/2000 Legal Publications: see judicial training schedule Legal Information: Computer Link 10/97 Legal Data Base Creation and updating of inforrnation 8/97-6/2000 Dissemination of laws on diskette 1/97-6/2000

18 - 14- VI. ALTERNATIVE DISPUTE RESOLUTION TERMS OF REFERENCE BACKGROUND Dispute resolution through the judicial system is inefficient and lacks predictability in many cases especially those in the commercial area. Currently the procedural codes provide for alternative dispute resolution during the process and there is an interest to expand the use of this system and build the capacity of the courts to implement such an expanded system. For example, the judges are expected under the civil procedural code to refer cases to arbitration if the parties agree and the magistrate judges are expected to reconcile disputes through conciliation. Both in the West Bank and Gaza the procedural codes allow for arbitration. The objectives of the ADR component of the Project include: 1) education of the legal professionals about alternatives to judicial dispute resolution, 2) provision of dispute resolution services as a complement to the judicial function, whereby access to dispute resolution services will increase, and court adjudication delays will decrease, and 3) development of draft legislation that would include appropriate alternative dispute mechanisms in the future unified procedural code for the WBG. The ADR component of the Project will include two principle sub-components: 1) one court-annexed pilot arbitration/mediation program in Gaza and the other in Ramallah and 2) research based on data gathered by the pilot program, and other ADR experiences in order to develop draft legislation for ADR in the future unified codes and to develop standards for mediators and arbitrators. An ADR consulting firm and/or individual consultants (hereafter consultant(s)) will be needed to provide technical assistance in a variety of areas. Consulting firms and/or individuals (hereafter "consultants") will be selected based on background in ADR program design and implementation, international ADR experience and Arabic language facility. A joint venture between international and local consultants could be formed to perform the Project activities. The consultants will work with a working group appointed by the President of the High Court of the High Court and which will include two judges from the West Bank and two from Gaza and the presidents of the Bar Association. This component was prepared by a similar working group. I. ADR PILOT PLAN The objective is to establish in Gaza and Ramallah a mediation/arbitration program for commercial cases. The expected outcome of the pilot exercise is a clear demonstration of the potential for ADR to provide timely, efficient, and equitable justice, in a way that

19 provides a complement to the traditional court-sponsored judicial system, that can serve as a means for reducing the case load and burden on the court system, and that can provide the private sector with needed expertise in commercial disputes. A. Short Pilot Description To accomplish these objectives, a arbitration/mediation program will be established, and an ADR center will be established within the courthouse in Gaza and Ramallah and staffed by the following: an administrator, five part-time arbitrators/mediators in Gaza and seven part-time arbitrators/mediators in Ramallah (specializing in commercial cases), and two secretaries. B. ADR Model Design The pilot court-annexed arbitration/mediation program model will be implemented at all levels for commercial cases in Gaza City and Ramallah. In collaboration with the working group, consultants will develop procedural guidelines and a contractual framework in which the arbitration or mediation will take place. As part of the consultant responsibilities, the preparation of the model mediation contracts, an operational manual for the center, and the establishment of the case management/record keeping system for the centers should be completed within the first two months of the establishment of the center. The program will be implemented by a resolution issued by the President of the High Court. Two models for the entry of a case to the center are contemplated: Model 1: Using existing procedural codes Upon entry of a case to the court, the case is assigned to a judge and a specific court. The presiding judge calls the parties and inquires whether the parties are interested in arbitrating or mediating the case. If the parties agree, the case is referred to the ADR center and the case is placed in suspension in the legal process. Parties agree to mediate or arbitrate and then the center arbitrates or attempts to reconcile depending on what the parties choose. If resolution under mediation is achieved the case is referred to the presiding judge for signature/approval/stamp. If resolution is not achieved, the case is returned to the active case file of the judge. If the conflict is resolved through arbitration the case is sent to the judge for signature/approval/stamp and the decision is enforceable in the courts. Model 2: Arbitration or Mediation before the filing of case At any time before the filing of a law suit before the judiciary, the ADR offices may offer their services to resolve a dispute according to the relevant rules that will be produced for this model. The resolution of such disputes would be non-enforceable in the courts because the legal framework does not contemplate this.

20 - 16- In both models, the arbitrators/mediators will not devote more than a certain number of hours to a specific case; the parties, however, may continue indefinitely in their private negotiations. C. Introduction to ADR Training The consultants will design and participate in introductory ADR seminars, including the following: 1. "Pre-Pilot Implementation" Seminar A seminar on Alternative Dispute Resolution (ADR) will be conducted in or about June 1997 for judges, attorneys and other professionals interested in the topic. The purpose of the seminar will be to provide an overview of ADR mechanisms and to inform attendees of the particular ADR pilot program which will be implemented in WBG in late The consultants will be responsible for overseeing the: 1) selection of ADR topics to be addressed in the seminar; 2) recruitment and selection of seminar speakers; 3) development of seminar materials; 4) pre-seminar public relations; and 5) seminar administration. 2. General Judicial ADR Seminars Mediation and arbitration seminars will be conducted for judges of WBG. The seminars will be approximately eight hours long and will be offered in the West Bank and in Gaza. All judges in all levels of the courts will be invited to participate. The purpose of the seminars will be to: 1) introduce the judges to ADR concepts and mechanisms; and 2) provide general information about the design and implementation of the pilot programs in the Courts in both cities. The consultant will facilitate the working group regarding the content of the seminars, and, thereafter, will prepare seminar materials to be distributed to both participating judges and their support staff. The consultant will oversee and participate in the seminars, which will include lectures, practical exercises and discussion.

21 - 17- D. Judicial Participation and Training 1. Judicial Participation All judges in Gaza City and Ramallah will participate in this pilot program from all levels of the courts. 2. Arbitration and Mediation Training In consultation with the working group, the consultant will design arbitration and mediation training materials for judges who will participate in the pilot programs in both locations. Attendance of all participating judges and their respective support staff will be required. Following review and approval of the ADR training material by the working group, the consultant will conduct a two day training in each of the pilot sites. Following completion of the training the consultant will provide an evaluation report based on pre-established criteria regarding the participants, the trainers and the training content. E. Pilot Staff Selection and Training 1. Arbitration and Mediation Staff Selection The consultant will facilitate working group discussions regarding the criteria and methodology by which administrative and professional staff will be selected for the pilot programs in both locations. Following court approval of both the selection criteria and methodology, the consultant will oversee the recruitment and selection processes. Fifteen lawyers or retired judges will be invited to an arbitration and mediation training course. They will be selected by the working group on the basis of their experience in commercial issues and their reputation in the community (special consideration will be given to those who have already participated in preliminary training conducted by Search for Common Ground, a US NGO. Other experience in accounting, engineering and other areas related to the commercial field will be taken in to account. These lawyers will participate in a seminar-workshop for mediators and arbitrators. The 12 lawyers that demonstrate the highest qualifications will be selected for the pilot program. The others may participate as substitutes and/or in the program at a later stage. The seminar-workshop may last between 36 and 40 hours and will be given by arbitration and mediation specialists. These mediators will be part-time, they will be paid on an hourly basis for each mediation session. 2. Arbitration and Mediation Training and Manual Development

22 - 18- The consultant will survey existing mediator training materials used in the region. Based on the consultant's research, he/she will draft training materials and recommend a training design to be considered by the working group. The consultant will also develop evaluation criteria and methodologies for evaluation of trainees, trainers and the training itself. Following revisions by the working group, the consultant will conduct a 40-hour arbitration and 40 hour mediation training for all staff (i.e. both administrative and professional) of the pilot office. Training will be held for staff of the office (site to be determined). The consultant will compile and report evaluations results after completion of the training. Training courses will be prepared for: 1) judges participating in the pilot program (This training, approximately 12 hours, would be carried out by the judiciary so as to involve the participating judges in the preparation activities) 2) The judiciary will offer a seminar to explain the pilot program (This should be in coordination with the Bar Association to reach out to potential arbitrators and mediators) 3) Arbitration and Mediation training experts will conduct a seminarworkshop of about 36 hours for lawyers who will be trained as arbitrators and mediators. 4) Training may disseminate among the legal community the benefits of the ADR program and assist in building consensus for the use of ADR. The working group will coordinate with the bar association to hold one or two lectures on ADR in general, the pilot program, and the role of lawyers in the process. 3. Administration Training The consultant will provide technical assistance for the establishment and implementation of the pilot ADR program in WBG. The consultant will supervise development of operational manuals (including confidentiality of arbitrators/mediators, recourse if breach of confidentiality and general principles of arbitration/mediation), staff job descriptions, organizational charts, caseflow management guidelines, screening and referral mechanisms, quality control criteria and methodologies and will provide other administrative and substantive technical assistance, as needed. In addition, a booklet will be prepared containing basic information on ADR and the pilot program. These booklets should be distributed among the judges, lawyers, the business community, and the parties who will participate in the program.

23 - 19- F. Infrastructure The pilot program will have an office in the courthouse in both Gaza and Ramallah, with a reception room and arbitration and mediation room. Office equipment (including computers, printers and telephones, furniture etc) will be supplied by the Project. Due to limited space in the existing facilities, mediation sessions may take place outside the courthouse as well if the parties agree. This should be considered in the future plans for new courthouse facilities. II. EVALUATION: Pilot Program Research Study The consultant will design an ongoing research study to monitor the implementation of the pilot program. As part of the design process, the consultant will collaborate with pilot staff, the working groups and the Project implementation unit to define Project goals, develop a computerized database to measure the program's effectiveness in achieving its stated goals and to track general information about the nature of disputes mediated, as well as the characteristics of program users. The consultant will conduct formal research studies based on data compiled by the pilot program one year after implementation of the program and at the conclusion of the pilot Project, with semi-annual reviews of the progress of the study. Results of the research study will be published and presented at conferences held one year after pilot implementation and at the conclusion of the pilot Project. The consultant will also provide technical assistance to the pilot staff for purposes of producing interim report with which ADR services and procedures will be evaluated, and as needed, modified. Pilot Staff Research Training The consultant will provide technical assistance to the pilot staff in data collection techniques, computer input methods and monthly and quarterly interim report generation. III. STUDY AND PROPOSAL FOR DRAFT ADR PROVISIONS During the pilot program, consultants will be contracted to conduct a study on ADR mechanisms and propose draft provisions for ADR in the future civil procedural code. This study will review ADR mechanisms currently being used in the WBG, those being used in the region as well as England and Cyprus. This study will also take into account the pilot experience and the success and failures of the program. The study will recommend articles on ADR for the civil procedural code as well as: I)whether there should court-annexed ADR or private adjudication; 2)what types of cases are appropriate for ADR; 3)what criteria should be to select cases for arbitration and mediation; 4) how ADR can be funded; 5) what qualifications the arbitrators and mediators should have and

24 what type of training should have prior to providing such services; 6) what code of ethics should be in place for arbitrators and mediators The study will be reviewed by the worldng group and once a draft is complete the study and proposed provisions will be processed through the legislative framework established for the legislative drafting component. Reporting Requirements The consultant will provide the Project Coordination Unit with quarterly progress reports. A final report will be delivered to the PIU at the end of the pilot Project and the study. IV. TIMETABLE The pilot program is expected to be in operation for two years in both Gaza and Ramallah. If the pilot exercise is successful, it is expected that the assumption of the responsibilities for the operation of the mediation office and its staff will become incorporated in the administrative and operational activities of the judiciary, including budget. The overall timetable of the various activities under the pilot program is described in the initial portion of this annex. Key activities and their targeted timetable include: ADR Pilot Exercises Structure ofactivities 1. Design of Pilot Exercises (working group) Establish criteria for judge/arbitrator/mediator selection 7/97 (WG) 2. Development of ADR Guides/Models a. Determine Guideline compatibility with codes, leg. and issue High Court Resolution 8/97 1 sm (int'l) by President of the High Court for pilot b. Develop Guidelines (pre-training base material) 9/97 2 sm (int'l) c. Development of Full Manuals for ADR 10/97-12/97 2 sm (local) 2 sm (int'l) 3. Initial Implementation of Pilots a. Two pre-pilot seminars on ADR in WBG

25 International consultant and travel for 3 sw - Local consultant specialist (3sw) - Conference preparation and materials - Local travel for participants, etc. 12/97 b. Establishment of structure for Selection Committee and appointment 12/97 c. Initial training for selected Judge' arb/med: 1/98 - Contract int'l firm for 2 monins - Facilities, etc. 4. WBG Pilot 3/98-12/2000 (see attached cost sheet for life of Project) Project Administrator (2) Senior Arbitrators/Mediators (12 part-time equivalent) Assistants/Secretaries (4) Monitoring and Evaluation a. develop data material 12/97 b. conduct one year program study 1/99 c. conduct end of pilot evaluation 1/2000-2/ ADR Study a. review and drafting of provisions 10/1999-2/ Local consultant specialist (2 months) - 1 International consultant and travel (3 sw) b. workshop to discuss study 3/ publication of study - facilities

26 VII. COURT ADMINISTRATION TERMS OF REFERENCE BACKGROUND The court administration component is a fundamental element in the overall goal of improving the capacity and efficiency of the West Bank Gaza's court system. The specific objective of this component will be to assist the judicial branch to develop modem administrative systems and organizational structures. The design of this component has taken into account the rudimentary level of the administrative structure and systems in the judiciary. Advanced administrative and management elements associated with modem administrative systems, e.g., automated case management and case tracking will be introduced in a second phase of activity once the basic systems--fundamental technology, improved facilities, defined administrative policies and procedures, training programs-- are in place. Project activities in this component will focus, at the central policy making and administrative level, on assisting in the establishment of policy making and administrative organizations internal to the judicial branch. There will be particular emphasis on the three areas of the central administrative system that impede the effective administration of the system-- human resource management, the statistical and management information reporting systems and the planning function. The current personnel system has numerous inconsistencies, such as judges in the same position being paid different salaries and judicial appointments being made without regard to a judicial career ladder. This phenomenon is the result of an evaluation and classification of judges carried out by the executive branch. The elements of a judicial branch personnel system (authority for, selection, qualifications, compensation, evaluation, promotion, appointment, administrative responsibilities and procedures) will be put in place during the Project. Focus also will be on developing judicial statistical and management information systems in order to have the needed information for allocating resources. The planning function will be introduced to transform the judicial branch from a reactive body to one that plans the allocation of its resources. Focus of the case administration will be at the trial court level, primarily to give judges and non-judicial personnel the modem tools to perform their duties. Activities will take into account the capacity of the system to absorb new methods and technology. The focus will be on basic records management, introducing automation (word processing, indexing, basic calendar activities) through personal computers and printers and the

27 introduction of standardized legal and administrative forms to complement the introduction of computer technology. Since the proceedings in the WBG court system are oral, equipment (tape recorders) will be provided to maintain a record of proceedings. Training and documentation will be an integral part of the above activities. There are seven defined subcomponents of the court administration component: 1. Assist in the creation of a central administrative function to implement administrative policies established by the judicial branch including hunan resources, budget and finance, planning and management information/statistics. 2. Establish a planning function and develop a long range plan for facilities. 3. Establish a personnel classification system. 4. Improve the records management system including revising numbering systems, purchasing record keeping equipment, and establishing a system of indices and registers. 5. Improve the judicial statistical and management information system to assist in the process of establishing case processing and administrative standards and methods for measuring and monitoring system performance. 6. Improve the basic equipment of the courts by purchasing basic automation systems including providing a system for maintaining a record of oral proceedings. 7. Introduce standardized legal and administrative forms.

28 TERMS OF REFERENCE BY SUBCOMPONENT SUBCOMPONENT: CENTRAL ADMINISTRATION Assistance in the Creation of a Central Administrative Function to Implement Administrative Policies Established by the Judicial Branch There are two basic issues to consider in establishing an effective judicial administration system--first, how overall policies will be established and second, how those policies will be administered. The lack of integration arnong the various levels of courts and the personnel in those courts into an institutional framework undermines the effectiveness of the individual parts. To establish such policies there must be recognition that there should be a separation between the judicial and purely administrative functions. Judges should set the overall policies for the court system, but the day to day administrative work should be carried out by professional managers. The more responsibility is delegated to the professional administrators, the less need for administrative work by judges. There are several models of judicial oversight in the administrative areas. In many court systems the oversight responsibility is delegated by the other judges to the President of the High Court or to an executive committee of judges from the highest court. In others, a judicial council which consists of judges from the different court levels, has the oversight responsibility. This oversight work is considered to be full time in some systems, while in others, service on the judicial council or executive cornmittee is in addition to the normal judicial duties. However, all the Judges of the highest court should involve themselves in the day to day administration of the court system. The most common result is the development of backlogs of cases and minimization of the importance of the third branch of government. In the WBG, prior to June 1967, a judicial council composed of judges, the Attorney General, among others, appointed judges and carried out other oversight functions, not all of which were associated with a true policy making judicial council. Although the council remains on the books and functions, at least, to certify or admit lawyers to the bar, the council has not been fully reactivated. Such a council could alleviate confusion between the powers of the Ministry of Justice, the Judiciary, and the Judicial Council. The proposed organic law for the judicial branch addresses these issues and assigns increased policy making and administrative authority to the judicial branch, and the activities proposed in the Project are consistent with the objectives of this proposed law.

29 Assuming the establishment of a policy making body (e.g. judicial council), the administrative duties that must be assumed within the structure of the judicial branch, at a miniimumn, consist of: Prepare and administer the budget for the court system. Conduct planning for the court system and produce long range (between three and five years) plans and annual action plans outlining activities for the coming year to achieve long range goals. Analyze and adopt appropriate methods and procedures in administrative processes to ensure efficiency and effectiveness. Represent the judicial branch in dealing with other ministries, the media and the public as delegated by the governing body. Establish the standards (job classifications, salary levels, evaluation systems, minimum qualifications etc.) and administer the human resource system. Maintain a program of labor relations with the various employee groups in the judicial system. Administer the system of purchasing for the courts. Develop and offer appropriate training programs in both technical and general managerial areas for judicial and non-judicial employees. Provide technical consulting assistance to local courts to improve case management and administrative systems. Oversee the use of technology in the court system and provide technical assistance in the area of office systems including computerization. Maintain court facilities operated by the judicial branch and oversee the development and maintenance of standards for new facilities. Administer the financial system of the court system. Prepare and maintain manuals of operation for administrative and non-judicial clerical functions. Conduct special studies and analyses as required to improve the administration of the court system, including analysis of the distribution of personnel, determine the needs for new courts and judicial positions, determine the causes of delay in the courts etc.

30 Prepare periodic and, at least, annual reports on the condition of the courts including statistical information on the volume of work received and disposed of by the different courts in the system. Maintain a service mentality among the representatives of the judicial branch in dealing with the clients of the court and ensure that any barriers to access to the courts whether physical(access for the disabled for example), language or other are removed. Currently in WBG, to the extent that the above functions currently are carried out, they are performed within the Ministry of Justice by only two individuals, a financial officer and a purchasing officer. The Ministry determines the budget assigned to the judiciary. There is no planning, human resource, management information or statistical offices within the administration of the judiciary. The highest ranking non-judicial person is the clerk of the high court who does not participate in the overall administration of the court system as an administrative director of the courts would, but rather oversees the processing of cases filed in the high court. (He does carry out an audit function of the other clerks in the system in Gaza, almost on a voluntary basis, according to the incumbent). There are chief clerks in each court, but they process case files. The central administrative office that is recommnended for Project start-up will consist of the following positions 1. Administrative and Finance Director 2. Planning and Management Information 3. Human Resources 4. Systems/Statistics Manager The four positions will provide critical support to the judicial branch. Project activities will include a study to develop the appropriate models for WBG to create both policy making and administration offices, the provision of the equipment necessary to start-up the administrative offices under the current system, the PA would create these new positions within the classification system, and the judiciary would name the personnel to these offices and agree on a time table to assume the financing of the positions. The Project will finance all four positions for the duration of the Project. The PA would assume financing of these positions immediately following the completion of the Project.

31 SUB COMPONENT: PLANNING AND ANALYSIS Establish Planning Function and Develop Long Range Plan for Facilities Well defined development goals and implementation plans are a basic step for the judiciary to gain the confidence of the other branches of government and the public as well as ensure that their resources are allocated appropriately. At this time, the planning function in the judicial branch does not exist. Major initiatives need to be undertaken to institutionalize planning. These actions include: Integrate and institutionalize the planning function at all levels of the administration of the court system especially in budgeting, resource and personnel allocation and facilities planning; Hold workshops on planning and analytical methods; Create a planning unit directly related to the budget preparation process in the central administration offices and in provincial courts as feasible; Produce a five year plan the WBG court system; and Draft annual plans that are tied to the budget preparation process and distribute annual plans throughout the judiciary outlining objectives and proposed extraordinary activities for improving the administration of justice. Project activities will initially include the provision of support the creation of the planning office. SUBCOMPONENT: HUMAN RESOURCE MANAGEMENT Establish a Human Resource Management System Including Authority for Selection, Qualifications, Compensation Levels, Evaluation, Promotion, Training Requirements, and Appointment Procedures for Judicial and Non-Judicial Personnel and Administrative Responsibilities and Procedures The current personnel system negatively affects the ability of the court to attract highly qualified judges and support personnel to the judiciary. Judges are paid between 3,000 and 5,000 shekels per month. The President of the High Court receives 6,350 shekels or approximately $2,200 per month. According to data received, the distribution ofjudicial positions is the following: GAZA WEST BANK Magistrates 7 8 District 7 10

32 High Court TOTAL The High Court recommends that the employment of 12 more judges given the current workload. In general, the perception is that the system is under staffed. The judicial branch has asked for 46 additional non-judicial staff members for Gaza (Appendix 1), which would represent a 75% increase of the current non-judicial staff. The number of non-judicial personnel in Gaza is 58 and, in the West Bank, it is approximately 80 (see Appendix 1 for the distribution of personnel in the courts in Gaza). The court recently hired 20 police clerks to serve as courtroom clerks and notifiers in Gaza to meet the increased workload. The current ratio of judges to support staff (approximately one to two) is extremely low compared to other judicial systems in the world. In general, the number of personnel-- judicial and non-judicial--is extremely low for a population of over 2 million, which reflects the lack of use of the system in the past. It is assumed that there will be a need for significant growth in personnel in the coming years to address expected increases in filings. The personnel system is not uniformly applied, and there are reports of judges in similar positions receiving different salaries, and judges in lower courts receiving salaries higher than judges in higher courts. Non judicial staff positions and appointments are determined by the Ministry of Justice. Once appointed, they are supervised and disciplined by the court system. Non-judicial personnel receive approximately 800-1,200 shekels per month. New appointees to the judicial branch, both judges and administrative personnel, often are not prepared for the jurisdictional and administrative responsibilities of their positions. There is no training program for either judges or non-judicial personnel, nor are there any procedure manuals outlining trial practice, case processing guidelines or administrative procedures to guide them (see Judicial Training Terms of Reference).

33 -29 - Policies and procedures for a human resource system should include: Selection Qualifications Compensation levels Evaluation Promotion Training requirements Appointment procedures for judicial and non-judicial personnel Administrative responsibilities and procedures Project activities will consist of creating the human resource office in the judicial branch and technical assistance to establish the elements of the personnel system, reflecting the policy decisions adopted by the judicial branch and consistent with overall PA laws and regulations. Additional technical assistance will be provided to assist in the design and implementation of the system itself including the development of procedures, forms and manuals. Training will be provided for judicial and non-judicial personnel who will administer the human resource system. SUBCOMPONENT: RECORDS MANAGEMENT Improve the Records Management System Including Numbering Systems, Record Keeping Equipment, Indices and Registers Records management is an active, continuing program for controlling the intake, maintenance, use and disposition of records. The interdependence of court records and court operations makes record management a priority for the trial courts. The basic functions of court--disposing of cases and adjunct operations as well as financial and statistical reporting -- rely on court records for their accuracy. The current records management system consists of a single register book where the progress of a case is noted. Each court uses its own numbering system and develops its own internal register system to maintain control over records. There are no standards on maintenance of records, types of record keeping equipment, or systems that should be used. Calendaring is done manually by the judges themselves in their personal calendars. Files are maintained in folders as required by law. There is no use of automation to track the progress of cases, monitor cases requiring action or cases which are unreasonably delayed. Improvement to the records management system will improve the efficiency and prepare the court for the expected increased in caseloads. Although the records are orderly the current manual system is not geared to high volume filings. For example, in Ramallah, the filing system in the court of appeals is orderly. Files are kept in file folders in numbered order and under lock and key. There is a secondary storage area for closed case files which is also well maintained. The clerk

34 controls the movement of case files in the court house and maintains visual control of attorneys reviewing case files, an important element in protecting the integrity of the files. The problem lies in the future in which the volumes will and already have begun to increase dramatically. Project activities will consist of technical assistance in defining and documenting elements of the new system, purchasing necessary basic equipment, documenting the new system in operational manuals and training for personnel. Specific activities will include an initial overview of the current records management system; adopting standards for appropriate records management equipment; installing new records management equipment; revising the records retention schedule to allow for the destruction of unnecessary records; and creating a standing records management committee to oversee this area. Consultants will survey the present system of records retention to determine if there are some inactive records which no longer have a useful legal life and can therefore be destroyed or sent to secondary storage. An analysis will be conducted on how inactive records are stored to determine if these processes should be modified. Consideration should be given whether there should be a judicial archive in the West Bank or Gaza or in both. The consultants will also create a manual which will include the following: rules for numbering case files; a determination of the number and locale of registries on court actions; methods for handling exhibits; standards for records security, including access to records; and environmental controls for the protection of records against natural disaster. The consultants will give consideration to what legislative reform, if any, may be necessary to ensure adherence to the new system. There will be specific analysis of elements of the current system which are problematic such as the system for notifying parties of appearances. The court currently uses a system of mail and personal notification. Judges report that a major source of delay is that the parties do not respond to the notification because they do not receive the notification. Twenty five percent of the requests for additional personnel for Gaza is for notifiers. Once the standards for records management equipment are established, Project activity will focus on upgrading the records management equipment in the courts. In particular, consideration will be given to the most appropriate type of filing equipment, the introduction of manual register of action or case history cards, and specialized register equipment. The appropriate equipment will be introduced into the records management system.

35 SUBCOMPONENT: JUDICIAL STATISTICS AND MANAGEMENT INFORMATION Improve the Judicial Statistical and Management Information System to Assist in Defrning Workload Needs, Establish Case Processing and Accountability Standards and Analyze the Causes of Delay There currently is a judicial statistics program and reports on filings and dispositions are sent by the courts to the President of the High Court in Gaza. Automation is not used to track the progress of cases, uncover cases requiring action or cases which are unreasonably delayed. Improvement of the record management system will enhance efficiency and prepare the courts for the expected increased in caseloads (see the Gaza monthly statistical reports for September in Appendix 2). According to the overall statistics, the workload in the courts is increasing at dramatic levels and backlogs are developing. The Gaza report for November shows the following: Pending Terminated District Court 2, Magistrates Court 8,817 2,938 These figures suggest that, on the one hand, the population is seeking to settle disputes through the judicial system and, on the other hand, the current system is not capable of dealing with the volume of cases. An objective of this component of the Project is to improve the current statistical system and develop standards to measure progress within the courts. Project activity will focus on improving the current statistical system in terms of accuracy and ensuring that the appropriate data elements are maintained. The concept of measuring the performance of the judicial system has not been a subject of focus yet in WBG. There generally are no standards to control the movement of cases and administrative behavior except in the criminal law area. For judges to be active managers of their caseloads, there need to be case processing standards to provide a basis for measurement of progress, current status and backlogs. Similarly with administrative responsibilities, standards of practice need to be developed and built into the management reporting system. The steps to be taken include: Development of performance standards for the court system which focus on delivering services to the users of the court system.

36 Institution of methods to make the court system accountable to the public through such techniques as the state of courts annual report and, satisfaction surveys of the users of the courts. Implementation internal monitoring of performance through the creation of operational audit functions. Introduction of quality management concepts into the administrative structure Technical assistance will be provided to conduct the following: review the current statistical system relative to management information objectives and model judicial management information systems in use or proposed for similar court systems such as in Egypt and Jordan; summarize the statistics that are currently available into an annual report on judicial workload; establish new reporting regulations, forms and instructions; conduct training for personnel responsible to report to the manual statistical system; and, if appropriate, introduce software to allow for the initiation of the use of automation in the statistical reporting system. SUBCOMPONENT: TECHNOLOGY Improve the Basic Equipment of the Courts, Mainly Basic Automation Systems including Providing a System for Maintaining a Record of Oral Proceedings. Efficiency of the courts is being improved throughout the world by the introduction of modem information technology. As this technology expands, it is becoming cheaper and therefore more accessible. Pre-packaged user friendly software makes it easier for users to absorb technology. Within the judicial framework, the areas that can be significantly improved by the introduction of basic automation with pre-packaged software are: 1) Preparing judicial decisions and orders. 2) Maintaining a written transcript of proceedings. 3) Correspondence. 4) Automating required registers. 5) Creating a case history (registers of actions). 6) Creating court calendars. 7) Creating systems to trigger events such as court appearances. 8) Maintaining required judicial statistics. Given the current vacuum of technology in the WBG court system, the most basic systems are required. Only a few typewriters and copiers are in use in the system now. The introduction of technology will be accompanied by intensive training in typing, word processing, and basic data functions.

37 A specialized function will be the introduction of tape recorders to create a record of oral proceedings. Currently the record of proceedings is maintained by hand written notes. As the judiciary develops, the ability to have a verbatim record will become increasingly important. The computers that will be purchased will have the greatest memory and operating capacities that are reasonable to purchase for the proposed applications. At a minimum, the equipment should have the following characteristics: 486 or Pentium 16 MB of RAM 600 MB hard drive Color monitor Mouse CD Rom player and speaker Modem 28.8 Pre-Installed software including word processing and spread sheet applications The computers will be equipped with CD Rom capability to allow for the use of the computers in training and research functions. It is envisioned that training materials will be produced in the CD Rom medium which will allow for interactive use by the judicial and non-judicial personnel. Printers will be ink jet for individual uses or laser if computers can be networked. Tape recorders will be basic systems with approximately five microphones for in-court operations. Project activity will involve the purchase of equipment, the development of operational manuals and training programs. SUBCOMPONENT: STANDARD FORMS Introduce Standardized Legal and Administrative Forms Standardized forms for use by judges and lawyers are a technique that has been successfully used to improve the efficiency and uniformity of practice in the courts. There is some evidence of legal forms in the current case processing system. In addition, it is reported that private lawyers have developed their own forms. Such forms can ensure that necessary steps in the legal process are completed. The development of standardized forms requires careful analysis of the processes to be reflected in the forms. These processes that are outdated, inefficient or inappropriate should be changed before incorporation into a standardized form. Consequently, the process requires the participation of representatives of the judiciary and the bar associations.

38 Project activities will consist of technical assistance and will focus on the following: 1) Identify areas in which standardized approaches among all judges are appropriate. 2) Establish a standing committee with representatives of the judicial branch, the bar and other interested groups to oversee the development and maintenance of standardized forms and provide the committee with appropriate professional staff. 3) Develop standardized forms for use in the legal procedures in criminal, civil, and all other legal areas. 4) Develop standardized forms for use in administrative procedures. 5) Develop training programs in the use of the standardized forms. These activities should lead to uniformity in procedures in each court and improved practice among lawyers. These activities will involve technical assistance, purchase of equipment and training.

39 Structure of Activities COMPONENT: COURT ADMINISTRATION SUBCOMPONENT: Central Policy and Administrative Structure a. Develop models of policy making and 6/97-12/97 administrative bodies b. Adopt policy making and administrative 1/98-6/98 procedures, systems, personnel and equipment necessary c. Appoint staff for central administrative office 1/98 d. Document procedures 6/98-9/98 e. Conduct training programs 9/98-12/98 f. Operationalize models in West Bank and Gaza 1/99-3/99 SUBCOMPONENT: Planning and Facilities Plan and Standards a. Establish planning position in central office 6/97-12/97 b. Establish design standards and norms for the design 1/98-6/98 of judicial facilities SUBCOMPONENT: Human Resource Management a. Establish elements of human resource system 6/97-12/97 b. Document procedures, regulations, and 1/98-3/98 administrative systems required c. Conduct training programs 3/98-6/98 d. Operationalize system in West Bank and Gaza 6/98-9/98 SUBCOMPONENT: Improve Records Management a. Establish elements of record management system 9/97-3/98

40 b. Document system adopted 3/98-6/98 c. Improve the records management equipment 6/98-12/98 in the trial courts(computers, copiers, fax, and tape recorders) d. Conduct training programs 1/99-3/99 e. Operationalize the system in West Bank and 4/99-6/99 Gaza SUBCOMPONENT: Judicial Statistics and Management Information Systems a. Review the current system 6/96-9/96 b. Develop model annual report 9/96-12/96 C. Conduct training programs 1/97-4/97 d. Operationalize the system in West Bank and Gaza 5/97-8/97 SUBCOMPONENT: Introduce Modern Technology a. Identify appropriate technology applications 6/96-9/96 for trial courts and conduct needs assessment for courts b. Develop terms of reference for hardware, 9/96-12/96 software, maintenance and training c. Acquire hardware 1/97-3/97 d. Conduct training in basic software 3/97-9/97 applications

41 -37 - SUBCOMPONENT: Introduce Standardized Forms a. Analysis of the present procedures to determine 1/98-6/98 where standardized forms may be useful b. Develop forms design manual and 7/98-12/98 standardized forms c. Develop training programs related to use of forms 1/99-6/99 d. Implement program in West Bank and Gaza 7/99

42 APPENDIX 1 NON-JUDICIAL PERSONNEL DISTRIBUTION ACTUAL AND REQUESTED BY THE JUDICIAL BRANCH December 1996 GAZA HIGH COURT/SUPREME COURT Current Clerk for the High Court I Court Secretary and Assistant to the Head Clerk I Head Clerk for the Magistrates in Khan Younis 1 Secretary and In Charge of Disciplinary Section 1 Secretary and In Charge of Law Section 1 Registration Officer I Computer Officer 1 Secretary 2 Messenger 4 Notifier 1 Total 14 Requested by the Judicial Branch Secretaries to the Court 3 Archivist 1 Head of the Section of Supreme Court Cases 1 Head of Revenues I Total 6

43 CENTRAL COURT Current Writer of Justice 1 Head Clerk for Central Court--Gaza 1 Commander of Procedures and Possessions I Secretary-Committee 1 Committee Secretary and in Charge of Archives 1 Bailiff and Disciplinary and Court Secretary 1 Head of Appeals and Legal Appointments Secretary I Secretary Head of Case Laws-Land 1 Head of Special Cases and in Charge of Typing 1 Head of Computer Section 1 Notifier 3 Total 13 Requested by the Judicial Branch Assistant to Writer of Justice I Assistant to Head Clerk 1 Assistant for Commander of Procedures 1 Secretary 2 Assistant to Divisions 3 Notifier 2 Total 10 COURT OF FIRST INSTANCE-GAZA Current Deputy Clerk 1 Traffic Division I Writer in Traffic Division 1 Commander of Procedures 1 Head of Traffic Division 1 Archivist I Notifier 1 Notifier and Writer when needed 1 Notifier I Law Division I Total 10

44 Requested by the Judicial Branch Head Clerk 1 Deputy Clerk 1 Disciplinary Head 1 Assistant Disciplinary Head I Head of Law Division I Assistant to the Head of the Law Division I Secretary 2 Computer Operator I Notifier 2 Archivist 2 Total 13 COURT OF FIRST INSTANCE: DEIR EL - BALAH Current Writer of Justice 1 Commander of Procedures and Secretary when required I Treasurer and Requests 1 Writer in the Law Division 1 Traffic Division 1 Disciplinary Section and Assistant Treasurer 1 Disciplinary Section and Assistant Secretary I Secretary and Archivist I Notifier I Total 9 Personnel Requested by the Judicial Branch Notifier 3 Traffic Division 1 Secretary 1 Computer Operator 1 Total 6

45 COURT OF FIRST INSTANCE: KHAN YOUNIS Current Deputy to Head Clerk and Law Writer and Bar Requests 1 Disciplinary Measures 1 Treasurer I Law Division and Traffic Violations I Archivist and Secretary 1 Notifier I Total 6 Personnel Requested by the Judicial Branch Notifier 3 Traffic Division Secretary 1 Secretary 1 Computer Operator 1 Total 6 COURT OF FIRST INSTANCE: RAFAH Current Head Clerk and Writer of Laws 1 Secretary 1 Head of Justice I Treasurer and Assistant Clerk I Secretary and Violations Division 1 Disciplinary Division 1 Notifier 3 Total 9 Requested by the Judicial Branch Notifier 2 Secretary 1 Traffic Division I Computer Operator 1 Total 5 TOTALS CURRENT 58 REQUESTED BY THE JUDICIAL BRANCH 46

46 -42 - APPENDIX 2 GAZA JUDICIAL BRANCH SEPTEMBER 1996 STATISTICAL REPORT CATEGORY FILED YR TO FILED TERMINATED BACKLOG DATE Supreme Justice Civil Appeals Disciplinary Appeals riminal Cases Varied Applications Total Suprerne Court Cases Centralized Beginners Law Centralized Beginners Lands Centralized Appeals Law entralized Disciplinary Law Centralized Disciplinary Cases entral Applications Total Centralized Cases Beginners Magistrate Law Beginners Land Magistrate Criminal Investigation Crimes Traffic Magistrate Division Arbitration Division Traffic Violations

47 Juvenile Felonies Folonies Division unicipal Violations Total Magistrat Cas Total Cases Curt Division Magistrate Court-Gaza Magistrato Court-Deir EI-Balah agistrate Court-Khan Younis Magistrate Court-Rafah Total Magistrate Procedures

48 KHAN YOUNIS MAGISTRATE COURT: FIUNGS AND DISPOSITIONS NOVEMBER 1995 AND 1996 CATEGORY FILED YEAR FILED TERMINATED BACKLOG TO DATE November 1995 Criminal Felony Misdemeanors Infractions(contraventiones) Civil Land November 1996 riminal Felony Misdemeanor Infractions ivii Land

49 DEIR EL BALAH DISTRICT COURT: FILINGS AND DISPOSITIONS NOVEMBER 1996 CATEGORY FILED YR FILED TERMINATED BACKLOG TO DATE riminal Felony Misdemeanors Infractions(contraventiones) Other Infractions 3, Civil Land Executive Cases

50 VIII. JUDICIAL EDUCATION TERMS OF REFERENCE Background 1. The West Bank and Gaza judiciaries are separated both by geography and their different legal heritages and traditions. The West Bank legal structures and approach are modeled after civil law systems while Gaza laws, structures and legal approach are strongly influenced by the English model. In addition to the problem of competing legal structures, the status, powers and responsibilities of senior officials have yet to be determined. 2. The justice system is considered by many to warrant improvement insofar as impartiality, competence and efficiency are concerned. It is generally agreed that it is a priority to improve the reality and perception of judicial impartiality, competence and efficiency. Judicial education programs designed to promote these qualities for judges of all courts, prosecutors and court support staff will facilitate the achievement of these objectives. In view of the present transitional period of legislation this component emphasizes training in judicial integrity, independence, accountability and efficiency rather than competency. The only judicial education programs existing at this time are occasional ad-hoc ones of foreign donors. Judicial education is also required to successfully implement the other judicial reform components of the legal development Project. 3. There is also a need for judicial working tools, - copies of laws, case reports, practice notes, scholarly comments and text books. While some of these materials are available, the supply is inadequate and unevenly distributed. A systematic assessment by the judges of the material they need to properly do their work is required. This will be coordinated with the material being disseminated under the legal information component of this Project. 4. The definition of the Judiciary differs between the West Bank and Gaza. In West Bank, the prosecutors are "judges" and part of the judiciary. This is not so in Gaza with its British tradition. However, the Gaza Attorney General, the head of the prosecutors, is himself a High Court Judge and two senior members of his staff are seconded judges. The Attorney General's office is a prime source of candidates for the magistracy, (the first rung of what is generally a career judicial ladder). For these reasons the prosecutors are included in the judicial education Project along with the judges (including magistrates) and judicial support staff. 5. The existing conditions and present lack of judicial education capacity will require more consultant time and funding than usual for the successful design and

51 implementation of the judicial education program. The component also should be carefully supervised and monitored. However, despite the difficulties, all segments of the justice system are supportive of the Project and give high priority to judicial education. The President of the High Court has agreed to appoint a judicial education committee to work with the component consultant. In light of the circumstances, it may be best to have a committee with prosecutorial and support staff representation in addition to the judges. The concept of judicial independence will be protected as long as the judges control the judicial curriculum and faculty. Objectives 6. The objective of judicial education is to support an impartial, effective, competent and efficient judiciary. This involves not only the fact but also the community's perception that judges are free from external influence that might affect their impartiality. It also includes an understanding of the role and function of the judiciary in performing the public service of dispute resolution. Such a well functioning judiciary attracts foreign and national investment. Scope of Work (a) The judicial education committee will supervise the implementation of this component and will be assisted in performing its functions by a Consultant for the following purposes: (i) (ii) (iii) (iv) (v) to develop into a sustainable judicial education structure using internationally accepted standards of curriculum development and interactive teaching methods; to supervise a resource center for judicial education that would ensure cataloguing and collecting judicial education print, audio and video materials; to network with regional and international judicial education bodies to share human and material resources; to study and adopt judicial education objectives and standards; to train judicial educators - mostly judges - to be the nucleus of the judicial education committee. They will be trained to teach judges substantive law and the concepts of an impartial and accountable judiciary, judicial discretion, culture of service, their practical applications and necessary support mechanism. To do this, they will be taught substantive subjects including commercial law, as well as pedagogical techniques useful to achieve the changes in thinking processes and attitudes required to create a judiciary able to support a market economy;