Impact of the Internal Palestinian Political Split on the Rule of Law: Legal, Political and Economic Perspectives
Held simultaneously in the West Bank and Gaza Strip via videoconference, the conference brought together a select number of legal specialists, experts, and representatives of government bodies and civil society organisations.
Dr. Samiya Huleileh, BZU Vice President for Community Outreach, welcomed the speakers and audience in both the West Bank and the Gaza Strip. Dr. Huleileh expressed her thanks to Mr. Hans Maria Heyn, representative of the Konrad Adenauer Stiftung (KAS) Office, Ramallah, Mr. Jamil Salem, IoL Director, and representatives of institutions invited to the conference. Dr. Huleileh asserted that the event would cast light on consequences of the internal Palestinian political split on the Palestinian legal system, particularly the rule of law principle. The conference themes would be informed by an IoL research initiative, which examined impact of the internal Palestinian divide on the rule of law in the Gaza Strip. In light of limited literature on various components of this issue, the conference covered legal, political, and economic aspects of the internal division in the Palestinian territory.
Mr. Hans Maria Heyn, KAS representative, provided a briefing note on the KAS role, establishment, areas of focus, and activities throughout the world, and in Palestine in particular. “KAS pays special attention to promoting and consolidating rule of law, democracy, and public rights and freedoms.” Mr. Heyn further commended the significant partnership between KAS and IoL.
Having welcomed the audience, Mr. Jamil Salem, IoL Director, conveyed his thanks and gratitude to KAS for its ongoing support of IoL activities. In terms of its concept and role, Mr. Salem explained that “rule of law is the foundation for promoting accountability.” Adversely reflecting on the Palestinian legal system, the internal Palestinian political split has resulted in two de facto governments that both exercised functions at the same time. According to Mr. Salem, the conference was designed to examine the reality of rule of law and impact of the internal division on the rule of law status. Besides the institutional role of law enforcement bodies, institutional practice should be in line with the principle of the rule of law.
Mr. Mahmoud Alawneh, Manager of the IoL Legislative Support Department, welcomed the speakers and audience and presented an overview of the conference goals, events, components and session themes. Mr. Alawneh stressed that the rule of law principle should be enhanced in the Palestinian legal system. The internal Palestinian political divide has negative affected the rule of law and state authority functions.
Entitled Public Rights and Freedoms: Between Political Structures and Hierarchy of Laws, the first conference session included a presentation by Mr. Hani al Masri on the Palestinian Political System and Rule of Law under the Internal Palestinian Political Split. Making clear that Palestinian sovereignty was short, Mr. Masri elaborated that “sovereignty is a victim of the internal Palestinian political divide.” A plethora of predicaments have been created by the internal split, affecting the Palestinian political system, state institutions, and the society from across the spectrum.
In a second presentation, Reflections of the Internal Palestinian Political Split on the Exercise of Rights and Freedoms and Enforcement of Regulatory Laws in Gaza, Dr. Mohammed Abu Matar explored the legal regulation of public rights and freedoms in the Gaza Strip. With a particular focus on laws governing these rights and freedoms, Dr. Abu Matar’s presentation investigated the impact of the internal Palestinian political division on performance of the Palestinian legal framework.
In his paper on The Rule of Law and Media: The Gaza Strip as an Example, Dr. Anwar at Tawil stressed the media role in promoting and disseminating a culture of the rule of law. Exploring challenges to the media role, Dr. Tawil explained that the internal Palestinian political divide has restricted freedom of the press as well as functions of media representatives.
Focusing on the rule of law and media freedom in the West Bank, Advisor Nasser ar Rayyes reviewed reflections of the internal Palestinian political split on media freedoms. In addition to inequality between citizens across the West Bank and Gaza Strip, the internal Palestinian political split has undermined the concept of judicial unity, given rise to a systematic policy of encroachments on public freedoms, affected the consolidated status of the Executive Authority, and entrenched an autocratic regime in the West Bank. On the other hand, a one-party rule prevailed in the Gaza Strip. After Palestine acceded to international conventions, the Palestinian Legislature should comply with and apply principles and standards in relation to media freedom.
In his paper on The Rule of Law and Oversight and Accountability Tools in the Gaza Strip, Dr. Walid al Mudallal explained the concept of the rule of law and relevant guarantees. According to Dr. Mudallal, Political, administrative and judicial oversight was notably ineffective during the internal Palestinian political divide.
The first conference session was moderated by Dr. Firas Milhem, Expert on Rule of Law and Judicial and Constitutional System Development. Dr. Milhem overviewed the context of public rights and freedoms in the West Bank and Gaza under the internal Palestinian political divide. In the opinion of Dr. Milhem, “the internal Palestinian split is the root cause of a declining status of these rights and freedoms.” Prior to the internal split, the status of public rights and freedom in Palestine was far better than some Arab countries. However, the Palestinian dichotomy has marked a major deterioration of these entitlements, particularly freedom of expression and media freedom.
The second conference session, Public Authorities: Between Approach to Political Split and Dichotomous Sovereignty, included several presentations. In the paper The Legislative Process and Principle of the Rule of Law: An Assessment of Potential Tools and Solutions, Mr. Mahmoud Alawneh addressed reflections of the internal Palestinian political split on the legislative process in the West Bank and Gaza. Exploring potential legislative and institutional scenarios and solutions for this dichotomy, Mr. Alawneh also reviewed possible remedies for legislation enacted during the internal divide after the Palestinian national reconciliation effort materialises.
In his presentation on The Judicial Reality in Gaza after the Internal Palestinian Political Split and the Rule of Law, Dr. Adnan al Hajjar addressed the status of the Judicial Authority before and after the internal Palestinian political divide took place. Highlighting negative reflections, Dr. Hajjar provided a briefing note on the organisational structure of the High Judicial Council and Judicial Authority in the Gaza Strip following the split. In addition to a backlog of cases, the litigation process has been unduly slow. Courts are under-resourced and appointed judge are inadequately experienced. Newly enacted legislation jeopardised judicial functions and regulation.
With a particular focus on reflections on the judiciary, Advocate Raed Abdul Hamid addressed the current status of the Judicial Authority in the West Bank. In his presentation The Judicial Reality in the West Bank, Advocate Abdul Hamid stressed that a comprehensive review should cover all regulations relating to the Judicial Authority. Besides independence of the judge, judicial independence will be safeguarded and consolidated. The Judicial Authority has been adversely affected by the internal Palestinian political split. Predicaments have effectively disrupted normal judicial functions.
In her paper on Women’s Access to Justice in the Gaza Strip: Challenges and Opportunities, Ms. Zeinab al Ghuneimi asserted that key challenges have impeded women’s access to their rights. With regard to disposition of cases involving women, both regular and family courts apply discriminatory laws that encroach on women’s rights. Inter alia, the internal Palestinian political split has affected the Judicial Authority. Court decisions entered in Gaza are not recognised in the West Bank. The converse is also true.
Mr. Mohammed Khader reviewed consequences of the rule of law absence before and after the internal Palestinian political divide took place. In his presentation The Executive Authority and the Rule of Law, Advocate Khader overviewed that impact of the internal Palestinian split on the separation of powers. The fact that this principle had not been in place was one cause of the internal division in the Palestinian territory. Violations of the law were not duly monitored. A mechanism was not in place to control performance of public authorities. According to Advocate Khader, informed mechanisms should be developed to maintain the rule of law principle within the Palestinian legal system.
In Summons-based Appearance of Individuals before Security Services, Mr. Mohammed Awadh at Tilbani addressed the legal reference, regulatory rules, and guarantees of summonses issued by security agencies. In this context, arrests and detentions based on illegal summonses pose a grave encroachment on constitutionally prescribed personal freedoms. In the Gaza Strip, individuals were summoned to report to security agencies in cases that did not constitute offences. These were triggered by political activity or exercise of constitutional rights and freedoms, including the freedom of expression.
The second conference session was moderated by Dr. Yasser Amouri, Professor of International Law at BZU. Highlighting significance of the presentations made, Dr. Amouri elaborated on key challenges to the Palestinian legal system. The rule of law principle was severely impeded by the internal Palestinian political divide.
The last conference session was entitled Economic Legislation and Rule of Law: Approaches between Text and Context. In this first presentation Tax and Customs Legislation and Reality of the Rule of Law in Gaza. Dr. Nafeth al Mad’houn explored the theoretical framework of the concept of the rule of law as well as tax and customs legislation. Following a historical overview of tax legislation development in Gaza, Dr. Madhoun addressed challenges to enforcing tax legislation under the internal Palestinian political split and siege imposed on the Gaza Strip. Dr. Madhoun explored legal rules needed to implement tax regulations and rule of law. To this effect, tax and customs regulations should be consolidated within the Palestinian legislative system.
Economist Nassr Abdul Kareem reviewed impacts of the internal Palestinian political division on economic legislation. Following the internal divide and in line with the Basic Law, the free market model has been maintained. Several changes and modifications have affected economic regulations in the West Bank and Gaza. These were introduced in the context of routine reviews provided by both governments to accommodate new developments. Dr. Abdul Kareem explained that laws by decrees issued in the West Bank and laws enacted in Gaza were not in conflict with principles of the free market economy. Even more so, these were in tandem with the requirements of economic globalisation. It is worth noting that few economy-related laws were passed in the Gaza Strip.
In his paper on Mechanisms of Legal Empowerment as an Entry-point to Promoting Socioeconomic Accountability, Mr. Ibrahim Abu Shammalah explained the concept and implications of legal empowerment. Having explored the current status of economic and social rights in Gaza following the internal Palestinian political division, Mr. Abu Shammalah overviewed the Gaza civil society’s experience in legal empowerment. To tackle obstacles to enforcing economic and social rights in the Palestinian context, the role of litigation process in promoting these rights should be strengthened.
The third conference session was moderated by Dr. Omar Rahhal, Director of the Human Rights and Democracy Media Centre (SHAMS). Having addressed the historical background of economic legislation, Dr. Rahhal explained that the West Bank and Gaza were in a race to enact regulations. Some regulations were specifically designed to fit certain persons. According to Dr. Rahhal, a legislative revolution should be in place with a view to upgrade the Palestinian legal structure.
In the ensuing discussion, a number of interventions and recommendations were made by participants in both the West Bank and Gaza Strip. These centred on the future of legislation after the internal Palestinian political split is brought to an end. In addition to addressing legal positions created by this legislation, participants called for consolidating regulations in both the West Bank and the Gaza Strip. New enactments, including a Law on Access to Information, will be passed to regulate media freedom. Regulations passed during the internal split will be reviewed, particularly those that govern judicial functions. Items of legislation, which feature discrimination against women or obstruct women’s access to justice, will be revisited. All justice sector components will be engaged when the institutional and legislative status of the Legislative Authority is readjusted after the Palestinian national reconciliation effort materialises. To solve problems created by duplicate public authorities, institutional frameworks created in the aftermath of the internal split will be reviewed.
The conference is a culmination of an IoL research paper on The Internal Palestinian Political Split and Reality of the Rule of Law in the Gaza Strip: Selected Legal Treatises. The Conference was organised with support from KAS as part of the KAS Rule of Law in the Middle East/North Africa Programme – Beirut.
Venue
Institute of Law- Birzeit University
Date
2014-05-28
