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The Legislative Status in the Palestinian Territory

On Tuesday, 4 December 2012, the Institute of Law (IoL) at Birzeit University (BZU) organised a conference on The Legislative Status in the Palestinian Territory: Reality and Prospects.

The event brought together a significant number of specialists, experts, and representatives of official bodies as well as local and international civil society organisations.

In the opening ceremony, Dr. Samia Hulileh delivered an address on behalf of Dr. Khalil Hindi, BZU President. Dr. Hulileh expressed BZU’s thanks and gratitude to Mr. Hasan Al- Ouri, Advisor to President of the State of Palestine for Legal Affairs; Mr. Michael Mertes, Director of the Konrad Adenauer Stiftung (KAS) – Ramallah Office; Mr. Jamil Salem, IoL Director; and all representatives of participating institutions. Dr. Hulileh stated that the “Conference title is highly connotative: it characterises the Palestinian current situation and resultant consequences of the internal political division.” The conflict and tension between parties has adversely reflected on the legal and political context in Palestine.

His Excellency Advisor Hasan Al -Ouri congratulated the Palestinian people for “Palestine’s birth certificate and recognition as a non-member observer state at the United Nations.” Based on discretion of the President’s Office, Advisor Ouri explained that the President should implement his legislative powers in tandem with the higher interests of the Palestinian people. Decree laws have never been promulgated except after due consultation with relevant official and nonofficial bodies. Advisor Ouri emphasised that the President’s Office “is pinning hope on this Conference recommendations with a view to devise legal solutions once the national reconciliation effort materialises.”

Mr. Michael Mertes, Director of KAS Office, commended the years-long, distinctive working relationship between KAS and IoL. Mr. Mertes confirmed that legislative reform and review are a step towards state building. Mr. Mertes thanked organisers of the Conference, wishing that it would be a success.
In conclusion of the Conference opening session, Mr. Jamil Salem, IoL Director, expressed his thanks to the audience, including representatives of the President’s Office. Mr. Salem articulated IoL’s high appreciation to KAS for its continued support of the IoL activities. Mr. Salem noted that the Conference was an outcome of diagnostic studies developed by the IoL to explore discrepancies between regulations in force in the West Bank and Gaza Strip. To bridge the gap between these acts, the Conference “will provide an unbiased assessment of the legislative status in the Palestinian territory over the period 2007-2012.” In this context, the Conference “will come up with potential solutions that delineate how such regulations should be dealt with.” Mr. Salem concluded Entitled The Political Division: Between Law and Politics, the Conference first session was moderated by Advisor Ali Abu Dayyak, Chairman of the Bureau of Legal Counsel and Legislative in the West Bank. In his presentation on the Assessment of Reconciliation Agreements: From Cairo Agreement to Doha Declaration, Mr. Hani Al- Masri identified causes and roots of the internal Palestinian political division.

On behalf of Dr. Basem Zubeidi, Dr. Abdul Rahman Ibrahim, Professor of Political Science at BZU, made a presentation on the Assessment of the National Election Laws under the Internal Division from a Legal Perspective. Dr. Ibrahim provided an overview of provisions of the Decree Law on National Election, highlighting major pros and cons of this regulation.

In his paper on The State of Emergency under the Amended Basic Law of 2003 and Applications to the Palestinian Context, Mr. Ammar Jamous explained the difference between the ‘case of necessity’ and state of emergency, assessing the legal value of presidential decrees issued in 2007-12 vis-à-vis the Basic Law and ordinary legislation.

Commenting on the first session, Dr. Abdul Rahman Ibrahim explained that the national reconciliation effort involves both a legal and a political component. “Parties to the conflict are looking for quotas, not reconciliation.” Dr. Ibrahim asserted. The internal political divide has gone through difficult stages. Still, a mutual agreement should be in place to ensure desired objectives are accomplished.
The Conference second session on The Legislative Process and Problems Generated by Dichotomous Authorities was moderated by Advisor Fawwaz Abu Zirr, Assistant to the Cabinet Secretary for Legal Affairs. The session included talks by Dr. Ahmed Al -Khaldi, Professor of Constitutional Law, who made a presentation on The Problem and Practices of Dual Palestinian Authorities: Causes and Proposed Remedies of Negative Impacts.

In her paper on The Legislative Process in the Palestinian Territory between 2007 and 2012, Mrs. Haya Al -Hajj Ahmed elaborated on dichotomous legislative mechanisms, which have been given rise after the internal political division. Article 43 of the Amended Basic Law grants the President the power to issue decrees that have the power of law in cases of necessity that cannot be delayed. Advocate Ahmed also made a briefing note about major decree laws issued by the PNA President in 2007-12.

Addressing Post-2007 Law-making Mechanisms in the Gaza Strip, Mr. Nidhal Barham stated that a drafting committee, including ministers and members of the Palestinian Legislative Council (PLC), was established in Gaza. Towards 9 January 2009, laws used to be sent by fax or email to the PNA President for approval within 30 days. Otherwise, laws would automatically enter into force. According to the new Law on the Official Gazette, these were published in the Official Gazette. After 9 January 2009, however, no laws have been sent to the President’s Office for approval and promulgation. In this context, Mr. Barham went over major laws passed by the Gaza-based PLC.

In his presentation on the Scenarios and Remedies of the Legislative Status in the Palestinian Territory, Advocate Mahmoud Alawneh presented and highlighted legal consequences of three scenarios: continued, maintained or legitimated internal Palestinian political division. Advocate Alawneh stressed that another scenario should envisage legal consequences and solutions of the current status quo once the Palestinian national reconciliation is achieved and the division terminated. In this scenario, the best legal remedies can be examined. To this avail, Advocate Alawneh explored potential solutions for regulations promulgated in 2007-12 as well as for duplicate public institutions. To be chaired by the Ministry of Justice, Advocate Alawneh proposed that a legal committee be established to examine and consolidate these regulations.
In conclusion of the Conference second session, Dr. Issam Abdeen, commented that the internal political division should be overcome. Not a party may claim legitimacy except in accordance with clear legal principles.

Moderated by Dr. Feras Milhem, the Conference third session was entitled Oversight of the Constitutionality of Law: Diagnosis of the Current Reality and Outlook to the Future. In this session, Advocate Abeer Dirbas made a presentation on Oversight of the Constitutionality of Laws under the Internal Political Division and Role of the High Court in its Capacity as a Constitutional Court.
In his working paper on The High Judicial Council’s Vision of the Formation of the High Constitutional Court, Advocate Fateh Hamarsheh explained that it was not possible to form the Constitutional Court under the current political conditions. In addition to several other obstacles, the internal political division is a primary impediment to establishment of this Court.

Concluding the Conference third session, Dr. Issam Abdeen introduced some legal observations on the Decree Law Amending the Law of the High Constitutional Court.
In his comment on the session, Dr. Assem Khalil noted that the High Constitutional Court’s role was negative under the internal political division. Dr. Khalil stressed that the Court should play a more effective and efficient role by applying principles of the Constitutional Law. Literal enforcement of the Law should be avoided.

Entitled Assessment of Legislation Enacted under the Political Internal Divide: Selected Laws, the Conference fourth session was moderated by Ms. Reem Al -Botmeh. In her paper on the Legal Assessment of the Decree Law Amending the Company Law, Ms. Alaa Hammad shed light on relevant major provisions, highlighting legal positions created by the Decree Law.

Advocate Ahmed Nassrah explained in his paper – The Effect of the Internal Political Division on the Judicial Authority – that the Judicial Authority “has been involved in a conflict, to which it is not a party.” The Judiciary should have well maintained its independence and impartiality.

In his presentation on Assessment of the Decree Law on the High Constitutional Court, Mr. Ashraf Siyam made clear the provisions of this Decree Law have further empowered the Executive to control the Constitutional Court, thereby undermining its independence by law.

Mrs. Sama Isa elaborated on the functions of family courts under the internal political divide. In her paper on Assessment of the Laws on Family Courts and Impact of the Internal Political Division on the Functions of Family Courts, Advocated Isa made a briefing note about major changes introduced to the structure of family courts and relevant legislation.

Commenting on papers presented in this session, Advocate Raed Abdul Hamid stressed that the rationale and philosophy of legislation enacted in 2007-12 should be examined. The Constitutional Court should scrutinise decree laws and play its assigned role in promoting constitutional norms within the Palestinian legal system.

A set of recommendations were proposed in conclusion of the Conference.
 It is worth noting that, as part of its Law and Politics project, this Conference is an outcome of activities carried out by the IoL Legislative Support Department with a generous support from KAS Ramallah Office. This research project is designed to assess the legislative status in the Palestinian territory over 2007-2012, with a particular focus on the impacts generated by the current Palestinian internal political divide on the broader Palestinian legislative process. Research papers will be published in a book towards the end of December 2012.

In conclusion of the Conference, a set of recommendations were proposed. Firstly, an expedited action should be launched to put an end to the internal political division between the West Bank and Gaza. Also, a political will should outweigh the higher interest to personal and partisan interests. Participants also submitted the following recommendations:

- Rearrange reconciliation priorities;
- Ensure that the national reconciliation effort maintains a national context;
- Develop a unifying strategy;
- Examine legal scenarios and remedies of dichotomous regulations and public institutions in the West Bank and Gaza;
- Establish specialised legal committees to examine the legislative status in the Palestinian territory and explore legal positions created thereby;
- Scrutinise how effective provisions of the Basic Law are in coping with the current crisis;
- Create conducive conditions for establishment of the High Constitutional Court, particularly under the current internal divide;
- Review and examine thoroughly the Law on the High Constitutional Court as well as any subsequent amendments; and
- Establish legal committees to examine problems associated with regulations issued forth in the West Bank and Gaza Strip over 2007-12, including relevant effects and changes introduced to both institutions and individuals.