By enforcing the Law by Decree No. 41 of 2020 concerning the Administrative Courts (hereinafter: Decree-Law) on January 11th, 2021, the administrative judiciary has become on two instances (the Administrative Court and the High Administrative Court). However, the Decree-Law set a transitional period pending the formation of the Administrative Courts. During this transitional period, the Court of Cassation was granted the competence of rendering decisions on administrative cases, deeming its rulings final and unappealable according to Article (54/3) of the Law by Decree.
On October 28th, 2021, a constitutional lawsuit was filed claiming the unconstitutionality of Article (54/3) due to its inconsistency with Articles (30), (104), and (117) of the Palestinian Basic Law of 2003. The Constitutional Court issued its decision on the matter on November 24th, 2021, declaring Article (54/3) unconstitutional due to, among others, its inconsistency with the Basic Law and its contradictory to the principle of equality and access to justice to all.
The Constitutional Court declaration has explicitly stated that by declaring the unconstitutionality of Article (54/3), the Article rendered unapplicable not only as of the Declaration’s date, but rather as of the day the Decree-Law’s enforcement. Hence, the Constitutional Court’s declaration will, retroactively, affect all the Court of Cassation’s rulings starting from January 11th, 2021. Therefore, as soon as the Administrative Courts are established and formed, all rulings issued by the Court of Cassation “in its Administrative Capacity”, will be subject to appeal before the High Administrative Court.
Furthermore, Article (39) of the Decree-Law sets a 30-day period, as of the date of the decision, to appeal rulings issued by the Administrative Court to the High Administrative Court. Yet, in our opinion, this period cannot be implemented and calculated as of the date of decision, in light of the non-existence of the High Administrative Court. Remarkably, the 30-days period has already lapsed for most cases.
Due to the non-establishment of the High Administrative Courts, which precludes exercising one’s right in appealing the Court of Cassation’s decision, it is our opinion that the appeal period should be calculated as of the day of establishing and forming the Administrative Courts rather from the decision’s date.
Moreover, the Attorney General, who represents the government in administrative cases, has addressed all authorities, including the Trademark Registrar, to cease enforcing verdicts issued by the Court of Cassation “in its Administrative Capacity”, until the High Administrative Court is established, assuming the said rulings are still appealable. This enhance that argument that all decisions issued by the Court of Cassation “in its Administrative Capacity” since January 11th, 2021, inter alia, those relating to Trademarks and Industrial Designs, will be subject to appeal.
