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The Supreme Criminal Chamber in the Gaza Strip: Problems and Reality

On Wednesday, 15 June 2022, the Institute of Law (IoL) of Birzeit University held a legal encounter on The Supreme Criminal Chamberin the Gaza Strip: Problems and Reality. Bringing together a number of lawyers, members of the legal community, and interested persons, the presentation was made by Dr. Samia al-Ghusein, Associate Professor of Public International Law.

In her opening statement, Ms. Lina al-Tounisi, Coordinator of the IoL Gaza Office, welcomed the speaker and audience and made a briefing note about the Birzeit Legal Encounters Programme. Dr. Al-Ghusein stated that developed countries showed great interest in establishing and expanding specialised courts. These courts play an effective role in promoting independence, unity, and efficiency of the judicial system, achieving full justice, and ensuring summary disposition of cases. Proceedings used to take a long time before court, delaying or sometimes denying citizens’ access to their rights.

Dr. Al-Ghusein made a review of legal provisions on the formation of regular courts under the Palestinian law. According to the Law No. 5 of 2001 on the Formation of Regular Courts, the High Judicial Council (HJC) is vested with the power to establish specialised chambers or panels in the Conciliation Courts, Courts of Appeals, and High Court only. However, the Law does not authorise the HJC to create specialised chambers or panels in Courts of First Instance with either civil or criminal jurisdiction. Interpretative judgment shall not be resorted to wherever an explicit, unobscured and unambiguous provision is provided. Hence, based on the explicit provisions of the Law on the Formation of Regular Courts, the HJC may not put in place specialised panels or chambers in the Courts of First Instance, whose criminal jurisdiction is limited to relevant crimes and misdemeanours. Pursuant to Article 10 of the Law by Decree No. 30 of 2020 on the Formation of Regular Courts, “[t]he Court of First Instance shall establish a judicial chamber to hear civil cases and another judicial chamber to consider criminal cases.” Each chamber will consist of one or more panel(s) as determined by the presiding judge of the Court of First Instance and according to need. In the event the proper functioning of a court so requires, the presiding judge of the Court of First Instance is entitled to set forth a specialised panel within each civil or criminal chamber in the relevant Court of First Instance or Conciliation Court. In addition, Article 10(3) of the Law by Decree prescribes that “[t]he Chairman of the High Judicial Council shall be entitled to establish other specialised judicial chambers in the Court of First Instance in case the functioning of the judicial processes thus requires, provided that he specifies the subject-matter jurisdiction (jurisdiction ratione materiae), jurisdiction of value (amount in controversy jurisdiction), and territorial jurisdiction (jurisdiction ratione loci) for each in accordance with a regulation.”

Dr. Al-Ghusein elaborated on the High Criminal Court in the West Bank. After it had been promulgated, the Presidential Decree No. 20 of 2007 on the Formation of a High Criminal Court was repealed by the Palestinian Legislative Council (PLC). While a high criminal court was not needed at the time, the Decree was in contravention to the Law on the Formation of Regular Courts. The Law by Decree No. 24 of 2017 and Law by Decree No. 9 of 2018 on the High Criminal Court were passed. Later, the Law by Decree No. 14 of 2019 on the Repealing of the Law by Decree No. 9 of 2018 on the High Criminal Court was enacted. Dr. Al-Ghusein explained that the Law by Decree on the High Criminal Court was met with strong opposition across the West Bank for several reasons. Most importantly, the formation of a high criminal court by a law by decree was in violation of the provisions of the Palestinian Basic Law, particularly Article 97 thereunder. The law by decree also contravened many fair trial guarantees, which should be provided to the accused under Palestinian national legislation and international conventions, which the State of Palestinian acceded to.

By a decision of the Chairman of the High Council of Justice (HCJ), in January 2022, a supreme criminal chamber was established in the Courts of First Instance in the Gaza Strip. The Supreme Criminal Chamber is competent of hearing crimes and serious offences committed in Gaza over the past few years. The chamber has jurisdiction over the crimes of murder, narcotic drugs (acquisition and trafficking), and corruption (civil servants). Affiliated with the Court of First Instance, formation of the newly established Supreme Criminal Chamber in Gaza was clearly and directly contrary to the provisions of Articles 10, 21, and 28 of the Law on the Formation of Regular Courts in force in the Gaza Strip. The Law does not give the HCJ any power or authority to establish a specialised supreme criminal chamber or panel in the Courts of First Instance nor any competence that falls under the civil or criminal jurisdiction of the Court of First Instance.

Dr. Al-Ghusein also reviewed the nature of rulings entered by the Supreme Criminal Chamber in the Gaza Strip. In a summary trial that lasted no more than a month and a half, by consensus, the chamber handed down several sentences to death by hanging. The fact these death sentences were made in a short span of time was disquieting. It raised concern over compliance with guarantees of fair trial and whether the accused had the legally prescribed terms to be able to defend themselves against the charges imputed to them. This is particularly the case when a penalty as serious as death punishment is rendered.

Many interventions and recommendations were made in the ensuing discussion. Most notably, the establishment of a supreme criminal chamber in the Gaza Strip requires that judges specialising in criminal justice be appointed. These will have relevant experience in substantive and procedural matters of national penal laws as well as in international conventions and treaties, which the State of Palestine acceded to. Such a requirement is now lacking, however. The State of Palestine must fulfil its international obligations and abolish the death penalty under the domestic Palestinian legislation. To this end, needed legislative amendments will be introduced without delay. 

Students, legal researchers explore impact of amendments on procedural law in Palestine

Students, legal researchers, and faculty members discussed the changes introduced by laws by decree on Palestinian procedural law in a symposium organized by Birzeit University’s Institute of Law on March 31, 2022.

 

 

The symosium, part of a series organized by the Institute of Law in the West Bank and Gaza, featured legal experts that included judge Fateh Hamarsheh, lawyers and previous judges Raed Asfour, and Daoud Darawi. The speakers focused on recent amendments on the procedural law, evidence, execution, penal acts, and the commercial and civil code.

 

Mohammed Alkhader, an academic researcher, chaired the session, emphasizing in his opening remarks the destabilizing effects that laws by decree have on court proceedings as well as the system of rights and duties in Palestine.

Hamarsheh, who began the discussion, highlighted the consequences of amending procedural law through laws by decree, arguing that such amendments have an adverse impact on enforcing rights and the rule of law in Palestine. As an example, he discussed the 2022 amendments of the Code of Civil and Commercial Procedure No. 2 of 2001, arguing that such changes as the electronic serving of legal notices or changing the purview of conciliation courts undermine the guarantees to a fair trial and impede the swift administration of justice.

 

Along similar lines, Raed Asfour discussed the 2022 amendments to the   2005 Law of Execution, noting that they were redrafted from the Jordanian execution law without regard to their relevance to the 2005 execution law or  the Palestinian context. Among the more problematic effects of these amendments, Asfour noted, were that enforcement judges no longer handle substantive disputes and an apparent contradiction in how defendants can appeal verdicts ruled in absentia.

 

Daoud Darawi, the final speaker in the session, criticized the amendments to the 2001 Penal Procedure Law, noting that they’ve hampered the protection of human rights in Palestine. The amendments, Darawi explained, severely restrict how and in what form suits can be brought against public officials, requiring the written approval of the prosecutor general.

At the end of the legal encounter, the speakers gave the floor to attendees for questions, and a group discussion was held regarding how best to address the shortcomings of the law-by-decree amendments.

The Reality of Marginalised Groups in the Light of the Lockdown due to Corona Pandemic in Gaza Strip

The Institute of Law (IOL) Organizes a legal encounter in Gaza on

“The Reality of Marginalised Groups in the Light of the Lockdown due to Corona Pandemic in Gaza Strip.

 

Gaza – On Tuesday, the third of November 2020, the Institute of Law (IoL) of Birzeit University organised a legal encounter on “The Reality of Marginalised Groups in the light of the total ban due to Corona Pandemic in Gaza Strip“. It was held in partnership with Konrad Adenauer Stiftung-Palestinian Territories. Mr, Samir Al Manaama lawyer from Al Mezan Center for Human Rights, and Dr. Mohammed Nassar, Director of the Development Projects’ Department at the Ministry of Social Development in Gaza, had taken part in the presentation of the legal encounter via Zoom, with the participation of a group of lawyers, jurists and interested individuals.  

Then Mr. Samir Al Manaama had begun his address by talking about the difficult economic conditions in Gaza Strip, and the unprecedented deterioration due to what the world is currently experiencing from the spread of Corona pandemic, that has taken over the entire world, including Gaza Strip. In addition to other factors, which contributed to the deterioration of economic and social conditions in Gaza; the most important is the Palestinian political division for more than 13 years, and also the Israeli blockade

 

He added that the competent authorities had imposed a complete closure since the beginning of Corona pandemic’s spread last August in Gaza, and had closed all economic establishments, work centres and commercial markets. Tens of thousands of day labourers were suspended from work, which expanded marginalised group  categories, other than those recognised during normal circumstances, including women, children, people with limited income, people with disabilities, the elderly and the unemployed. He added that the new categories emerges as a result of the sudden closures and restrictions, imposed from time to time, and as a result of declaring a state of emergency in Palestine.

 

Lawyer Al Manaama had referred to the legal protection, which is provided by the Palestinian legislation and international human rights conventions for marginalised and vulnerable groups; as he emphasised on the necessity of harmonising these legislations with the obligations of emerging State of Palestine, when signing these agreements, after obtaining the status of a non-member observer state, at the United Nations in 2012.

 

Al Manaama had also indicated that the essence of protection, which is guaranteed by the national and international legal standards, is requiring to adopt policies and taking procedures that protect vulnerable groups from the danger of marginalisation, and to enable them to enjoy all the rights guaranteed to them, similar to other categories; whereas, in compliance with the constitutional and legal responsibilities entrusted to the public authorities. He also called to speed up the Palestinian political system’s building, and to make the relevant ministries, a subject to oversight and accountability, by elected legislative authority.

 

Al Manaama then proceeded to talk about the Ministry of Social Development’s tasks in the light of Corona pandemic, which, according to the Palestinian legal system, is entrusted with the tasks of providing protection and care for marginalised groups, as well as preparing development plans and programs that would remove those groups from the circle of poverty and marginalisation. Then he added that the Ministry had taken a set of procedures which focused on supporting the quarantine places, by providing relief aid. He added that this aid had expanded to those quarantined in their homes, after the spread of the epidemic on the 24th of August, and it focused on monetary and food aid.

 

Then Dr. Mohammad Nassar had discussed in his intervention some economic and social indicators before and after Corona pandemic crisis, and how this crisis affected those indicators. He talked about the indicators of poverty and unemployment, including what was mentioned in the report of the United Nations Conference on Trade and Development, issued in August 2020, as he indicated that 80% Gaza Strip people depend on international aid, which is constantly fluctuating, and that the World Bank and the Ministry of Social Development’s expectations indicate that the poverty rate after Corona pandemic will reach to 64% in Gaza Strip.

 

He also added that in the monetary assistance and food security’s indicator, the Ministry of Social Development’s data, is indicating that the number of beneficiaries of cash transfer program in the batch of July 2020, had reached to 115,000 Palestinian families; 80,000 are in Gaza Strip, and 35 thousand families are in the West Bank, and that in terms of food aid, the UN Relief and Works Agency (UNRWA), and the World Food Security Program are providing assistance to about 270,000 families in Gaza Strip. He pointed out that one of the main challenges which are facing the humanitarian sector was joining 65,000 families to the new poor circle.

 

At the end of the legal encounter, the discussion was opened, which included many interventions and recommendations. The most important is the need for the international community to assume its responsibilities in providing relief to the Palestinian territories’ residents, and for government agencies to initiate comprehensive development plans and measures. Also, the Palestinian legislator needs to adopt a modern law, to protect the marginalised groups, which aims to provide protection, care and development. In addition to the Palestinian government need to allocate sufficient resources and budgets, to enable the service ministries to carry out their tasks.

 

The Reality of Working Women's Participation in Justice Facilities

On Wednesday, 18 May 2022, the Institute of Law (IoL) of Birzeit University held a legal encounter on The Reality of Working Women's Participation in Justice Facilities. Bringing together a number of lawyers, members of the legal community, and female police officers, the presentation was made by Dr. Mohammed Suleiman Shubeir, Associate Professor of Administrative Law at the Faculty of Law, Al-Azhar University.

In her opening remarks, Ms. Lina al-Tounisi, Coordinator of the IoL Gaza Office, welcomed the speaker and audience and made a briefing note about the Birzeit Legal Encounters Programme. Dr. Shubeir discussed the role and impact of female staff members of justice facilities in the Gaza Strip on maintaining the privacy of women when they listen and provide legal advice to these women. Dr. Shubeir stressed the importance and role of female lawyers in women’s access to justice.

Dr. Shubeir addressed three issues. Firstly, in relation to the reality of working women’s participation in police and security services, positive engagement with the cases of battered women requires the participation of women working in justice facilities of all kinds. This support starts with recruiting female police officers who could deal with women, both as complaints and defendants, ensuring their privacy, providing all comforts, giving confidence, and encouraging them to move forward to access justice. In this context, Dr. Shubeir highlighted that what was needed was not a women’s police force. Rather, the tasks and powers of the Family and Children Departments at police stations should be enhanced and promoted. He indicated that women’s representation in the police service was low.

Secondly, on women’s participation in the Public Prosecution, Dr. Shubeir showed that there were five or six female assistants to prosecutors. Compared to 75 male prosecutors, there is not a single female prosecutor. Female presence in the Public Prosecution is a key requirement for access to justice in gender based cases. This is a constitutional requirement, which has a positive bearing on women. The absence of female investigators, criminologists, and judicial officers will negatively impact female complainants and defendants. On the other hand, male investigators find it extremely difficult to understand women’s psychology. When they feel embarrassed in some cases, women’s psychological condition drives them to take a passive attitude without hesitation.

Thirdly, Dr. Shubeir explored the impact of women’s participation in the judiciary on women’s right to legal recourse and access to justice. There are only two female judges out of 70 judges in Gaza. Procedures for applications for judicial office have made it difficult for women to be appointed as judges. Women are absent from courts. Court proceedings are so critical as they culminate in decisive judgements, which put an end to disputes and cases. As a consequence, women are deprived of their rights in cases to which they are parties. Female judges may, therefore, provide a crucial factor to support women. Female judges have the skill of recognising body language as well as drawing statements and facts. Dr. Shubeir made clear that the very low presence of women in the justice sector components was attributed to the nature of the patriarchal society of Gaza and to the way advertisements for judicial posts are drafted. In addition to the religious nature of the community, the public have recourse to informal (tribal) judicial system in some cases in general, and in cases involving women in particular. This was one of the key reasons that cause women to refrain from applying for judicial posts at different legal facilities.

Many interventions and recommendations were made in ensuing discussion. Most importantly, the principle of women’s access to justice needs to be consolidated by putting in place mandatory constitutional provisions. Effective laws should be amended to preserve the rights of women, including complainants, addressees of complaints, litigants, and defendants. In addition to defending themselves as they desire, women will be enable to make statements in full freedom and without hesitation. To this avail, women will be strongly visible throughout justice sector facilities. In particular, when they defend themselves in certain cases, women need to be heard by fellow women in issues of privacy and gender.

Scholars, researchers dissect recent Gaza judicial announcements on women’s travel, post-divorce compensation

Continuing its series of legal symposia focused on newly enacted laws and regulations in Palestine, Birzeit University’s Institute of Law organized a discussion on the Sharia Judiciary Council in Gaza’s judicial announcements regarding travel restrictions on women over 18 as well as compensation for women after an arbitrary divorce.

 

The symposium, held on Tuesday, March 22, 2022, was chaired by Lina Al-Tonisi, the Institute of Law’s administrative coordinator in Gaza, and featured Abdallah Sharsharah, a lawyer and legal expert. 

 

In his discussion, Sharsharah tackled the Sharia Judiciary Council’s judicial announcements from two interrelated standpoints:  whether the council has the legal power to produce such wide-ranging announcements that border on legislation, and whether the announcements themselves run afoul of any established legal precedents.

 

Regarding the first point, Sharsharah defined the Sharia Judiciary Council as an independent legal entity that oversees the work of Sharia courts in Gaza, formulates policies to advance Sharia judiciary, appoints judges, and proposes laws and regulations relevant to its purview. Producing broad judicial announcements based on independent legal reasoning, Sharsharah argued, is not explicitly part of the council’s purview. As such, the judicial announcements may violate the principle of judicial independence.

 

Discussing the recent judicial announcement regarding women’s rights to compensation after an arbitrary divorce, Sharsharah explained that the announcement, while providing women with recompense, supersedes the 1954 Law of Family Rights, which regulates, among other aspects, marriage and divorce. The judicial announcement, as Sharsharah concluded, is invalid.

 

After wrapping up the discussion, Al-Tonisi gave the floor to the attendees, who along with Sharsharah discussed several recommendations addressing gaps in the Law of Family Rights adopted in Gaza.

Legal Framework for Regulating the Energy sector in Gaza

The Institute of Law (IOL) holds a legal encounter in Gaza on

“Legal Framework for Regulating the Energy sector in Gaza”

Gaza – On Tuesday 20th of October 2020, the Institute of Law (IoL) of Birzeit University organised a legal encounter on “Legal Framework for Regulating the Energy sector in Gaza” It was held in partnership with Konrad Adenauer Stiftung-Palestinian Territories. The lawyer, Mr. Bakr Al-Turkmani from the Independent Commission for Human Rights (ICHR) and Mrs. Hala Al-Zibdah, Assistant for Vice President of the Energy Authority (Penra), had spoken at the legal encounter.

Mr. Bakr Al-Turkmani began his speech by indicating to the present electricity crisis that the Palestinian citizen suffers from in Gaza Strip. He pointed out that there were multiple causes for this crisis.  The crisis led to the presence of a private sector supplying electricity in Gaza Strip through generators for nearly five years. It was enlarged by the decisions of the official authorities in Gaza Strip regarding regulating the sector through licenses and fixed price of a kilo of electricity; And the legal procedures that were taken against generators’ owners, as a result of their rejection of these decisions. Whereas, on 9/15/2020 the Energy Authority announced a new price per kilo, which is 2.5 NIS. The Energy Authority had defended its decision regarding the pricing stating that it was based on in-depth and specialized studies. Whereas, the owners of generators believe that this price is unfair to them and it is not  agreed upon by the generators’ owners, and causes a heavy loss to them. The owners of the generators were forced to sign pledges not to stop their generators and to abide by the pricing starting from 1/10/2020, otherwise they will be subject to legal accountability.

He proceeded to talk about the legislative framework regulating electric power in Gaza Strip, as he reviewed the laws in force in Gaza Strip. He pointed out that the Law No. (12) of 1995 regarding the establishment of the Palestinian Energy Authority, remains the basic legislation governing for the energy sector in Gaza, Also, the agreement concluded between the Energy Authority and the Power Plant, which is a private company, in 2003. The most recent is the decision issued by the Committee for Monitoring Governmental work, regarding granting powers to the head of the Energy Authority to regulate the generators sector, and the decision issued by the Vice President of the Energy Authority in Gaza regarding determining the electricity price for generators and the necessity of licensing.

Al-Turkmani also discussed the agreement between the Energy Authority and the Contractors Union, to implement a project to generate an electricity from the commercial electrical generators in Gaza. He pointed out the danger of this type of project, and that we are heading towards privatizing all the electricity sector, starting from the power station, the private generators, and also solar energy projects. All of them tend to exhaust the citizen economically, where it was more appropriate for the government agencies and the Energy Authority to supervise the electricity sector, which indicates to a dangerous sign  for the withdrawal of the Energy Authority from its role in providing electricity, especially at the strategic level, so that the private sector becomes the main controller over the electricity in an advanced stage.

 Then Mrs. Hala Al Zebdah began her speech, noting that the reason of the disruption of major projects related to energy sector in Gaza Strip is the occupation. She indicated that the Energy Authority has many strategic plans that are constantly being developed, in order to cover the existing deficit, by expanding the presence of large generating units for electricity in specific areas; in addition to obtaining the fuel at a lower price, which is gas. She indicated that the two projects are exciting and being monitored.

 She also talked about the decision taken on 9/15/2020 regarding determining the electricity price for generators, and the dispute between the owners of generators and the Energy Authority carried out several studies to determine the price and issued the appropriate pricing. Mrs. Al-Zebdah added that there are solar energy projects of the Energy Authority which are under implementation for the next five years, and will be directed to schools, clinics and institutions.

 

At the end of the meeting, the discussion was opened, which included many interventions and recommendations. The most important is the need to increase the responsibility of the Energy Authority to provide the electricity to citizens in a low price, and the initiatives to implement public projects, which are directed to citizens, so that the electricity sector will not be fully privatized in the near future.

The Health Rights of Gaza Patients and Patient Transfers

On Thursday, 21 April 2022, the Institute of Law (IoL) held a legal encounter on The Health Rights of Gaza Patients and Patient Transfers. Bringing together members of the legal community, academics, and interested persons, the presentation was made by Mr. Ala’ as-Skafi, Director of the Al-Dameer Association for Human Rights, and Dr. Osama Bal’awi, a health consultant.

In her opening statement, Ms. Lina al-Tounisi, Coordinator of the IoL Gaza Office, welcomed the speakers and audience and made a briefing note about the Birzeit Legal Encounters Programme. As-Skafi explained the definition of the concept of health in International Humanitarian Law and right to health under Palestinian laws. The Palestinian Basic Law does not address the right to health directly. Instead, Article 10 of the Basic Law provides for compliance with fundamental human rights and freedoms. Accordingly, the Palestinian Authority will work without delay to accede to international conventions and declarations, which provide protection to human rights. As-Skafi demonstrated that the Palestinian Public Health Law No. 20 of 2004 assigns a set of tasks to the Ministry of Health (MoH), particularly maternal and child care, control of diseases and pandemics, quarantine, hospital, and clinic services. However, the law does not address important aspects, including the provision of health insurance and issues relating to the older population and people with disabilities.

As-Skafi elaborated on the 2000 General Comment No. 14 of the Committee on Economic, Social and Cultural Rights. The interpretation of the right to health comprises interrelated and essential elements, namely, availability, accessibility, acceptability, and quality of health care services. Finally, As-Skafi stressed the continuing complexities and obstacles, which face patients, constitute a violation of the right to health, run counter to the principle of progressive realisation of the right to health under the International Covenant on Economic, Social and Cultural Rights, and contradict the Palestinian National Health Strategy 2017-2022.

In his presentation, Bal’awi addressed the concept of specialised treatment and department of service purchase (treatment outside MoH facilities). The MoH is committed to working jointly with all partners to scale up and improve performance, and ensure professional management, of the health sector. The Palestinian government has put in place the patient transfer system to make up for shortfalls at governmental health facilities as well as the lack of medical experience, devices, and equipment, including specialties of the medical profession and ability of medical facilities to accommodate patients. This way, gaps are bridged by the purchase of medical services from local health providers outside the MoH, including private, civil society, or charitable health institutions. Also, medical services can be purchased from other countries in case they are unavailable at local health centres.

Simple cases are transferred to local hospitals in the Gaza Strip as well as to national hospital, which require that patients cross the Beit Hanun (Erez) crossing point. These include the An-Najah hospital in Nablus and Al-Makassed and Augusta Victoria hospitals in Jerusalem. Patients whose treatment is not available in the Gaza Strip are transferred to hospitals inside the Green Line, including the Hadassah Ein Karem, Tel HaShomer hospitals, etc. Bal’awi made an overview of the total number of annual patient transfers. In 2019, patient transfers totalled 104,881. Representing a decrease of 23.7 percent, 80,020 patients were transferred to health centres outside MoH facilities in 2020.

Bal’awi indicated that the period required for the approval of a patient transfer application ranges from two to three weeks. In the meantime, an appointment is made, taking into account the availability of medical services or procedures. The cost of patient transfers is mostly covered by 100 percent. On the other hand, patients contribute 5 percent to the cost of other services. Patients and their families cover indirect costs, including companions, transportation, and accommodation.

Many interventions and recommendations were made in ensuing discussion. Most notably, an integrated set of health services needs to be provided, including medical specialties for which patient transfers are needed most, such as cancer, heart surgery, and cardiac catheterisation, at MoH or private hospitals. The Palestinian health system will be improved and capacity building provided to medical institutions. Qualified medical staff will be recruited to train physicians in the Gaza Strip. Medical teams will be dispatched on external missions for rehabilitation and then return to work at local hospitals.

Legal Problems of Penal Reconciliation in Gaza Strip

The Institute of Law (IOL) organizes a legal encounter in Gaza on

Legal Problems of Penal Reconciliation in Gaza Strip”

 

Gaza – On Tuesday 17th of November 2020, the Institute of Law (IoL) at Birzeit University organised an online legal encounter via Zoom Platform on “Legal Problems of Penal Reconciliation in Gaza Strip“, which was held in partnership with Konrad Adenauer Stiftung-Palestinian Territories. During this encounter Dr. Sami Ghonaim and Dr. Saher Al Waleed, professors in the College of Law at Al Azhar University, took part in the presentation, as a number of law students from the aforementioned College, jurists and interested individuals also participated. 

The encounter was firstly introduced by Lina Al Tunisi, coordinator of the Institute's work in Gaza, whom welcomed the attendees and presented a brief description of the Birzeit Legal Encounters Programme.

Subsequently, Dr. Sami Ghonaim had begun his speech by clarifying the concept of Penal Reconciliation and its theoretical contour, which is considered to be an embodiment of the concept of alternatives to the criminal case procedures that emerged of the traditional criminal justice system crisis, as Penal Reconciliation also aims to achieve a balance between social interests and the punishment of the perpetrator, which represents a special deterrent to the criminal and the application of the idea of general deterrence to those addressing the provisions of the law.

Dr. Ghonaim reviewed the legal aspect of the Penal Reconciliation, as he indicated that countries tend to administer criminal justice through alternatives to the criminal case, which began to make its way in the legal systems, alongside the public lawsuit. Dr. Ghoneim also added that the legislator’s regulation for the Penal Reconciliation in Gaza Strip included many legal difficulties which led to the demand for its amendment, even by its supporters and those who implement it, as many criminals had return to committing crimes, sometimes more serious crimes, which demonstrates the failure of the concept of the perpetrator’s deterrence. Moreover, the rate of crimes in general is on increase, which calls into question the utility of the concept of general deterrence. Besides, the increase in legislative intervention to criminalize new acts, had led to an increase in the number of convicts, and thus an increase in the number of prisoners, which ultimately leads to overcrowding in prisons, and an increase in the financial burden on the state’s shoulders.

In his part, Dr. Saher Al Waleed revised the procedures followed in the enforcement of the Penal Reconciliation Law’s in Gaza Strip, where he explained the concepts of reconciliation and conciliation and the difference between them, and their role in the termination of a lawsuit, in addition to the society’s need for them. In addition, Dr. Al Waleed revised the concept of reconciliation in the Palestinian Criminal Procedures Law, specifically articles 16, 17 and 18, indicating that its impractical as the legislator imposed this concept for violations in general, and misdemeanours punishable with fines, excluding misdemeanours punishable by imprisonment; which is considered impractical as the society desperately needs an expansion in the circle of reconciliation. Meanwhile, the Penal Reconciliation Law of 2017, which is applied in Gaza Strip, has expanded the scope of reconciliation, which includes misdemeanours punishable by imprisonment for no longer than 6 months.

 

Dr. Al Waleed also addressed the criminal justice crisis between the public lawsuit and its alternatives, as he indicated that the legislator in the Penal Reconciliation Law for 2017 has made a distinction between accepting the reconciliation before the stage of filing the lawsuit and going to trial, and the stage after filing it. Dr. Al Waleed also emphasized that a distinction must be made between the civil and criminal cases.

 

At the end of the encounter, a discussion between the attendees was present, which included many interventions and recommendations, highlighting the necessity to change the legislator’s philosophy in drafting the law, as it moves away from the ethical view and includes only the utilitarian view, in addition to the importance of applying the law in some cases, such as tax crimes, and the impossibility of applying it on other crimes, such as theft. In addition, the fact that this law is inconsistent with social justice was also highlighted, as it biases with the rich against the poor, while legislations must reflect the societal condition, and prevail over the public interest.

Book: Law and Revolution: Legitimacy and Constitutionalism After the Arab Spring By Dr. Nimer Sultany

Institute of law holds s discussion about

Book: Law and Revolution: Legitimacy and Constitutionalism After the Arab Spring

By Dr. Nimer Sultany

 

On Thursday, October the 15th, 2020, The Institute of Law held an online discussion session about the book “Law and Revolution: Legitimacy and Constitutionalism After the Arab Spring” through the online platform, Zoom. The Main speaker in this discussion was Dr. Nimer Sultany, author of the book and Reader in Public Law at SOAS University of London, whom holds a Doctor of Juridical Science degree from Harvard Law School. Dr. Nimer is also the editor-in-chief of the Palestine Yearbook of International Law, and has many publications on constitutional theory, comparative constitutionalism, and Israeli jurisprudence. His book “ Law and Revolution: Legitimacy and Constitutionalism After the Arab Spring” was awarded the winner of the 2018 ICON-S Book Prize and the 2018 Society of Legal Scholars Peter Birks Prize for Outstanding Legal Scholarship.

The discussion was firstly introduced by Dr. Jamil Salem, Academic Researcher at the Institute of law, whom welcomed the attendees and presented Dr. Nimer to them, and gave a brief introduction about the book. Afterwards, Dr. Nimer began the discussion by clarifying the book’s objectives of observing trends in comparative law and constitutional education; as the book brings the Constitutional Theory to the Middle East in order to study the Arab Spring through a realistic theory that observes revolutions in its true sense and reflects on our perspective on how we view our reality.

Subsequently, the discussion focused on the book’s position in analyzing and critiquing the role of law in the course of the Arab revolutions. This was made by studying the connection between law and revolution in ten chapters of the book, which included analysis of constitutional and legal developments in an Arab constitutional historical context. Hence, the book studied the revolution and the trials former regime-leaders in both Tunisia and Egypt, and the constitutional changes that took place at that time.

 

The book noted the difficulties encountered with these developments and the results that led to them, as the lack of previous studies relating to the Arab Spring in this context was also touched upon. Since it is rare for studies to address the role of law and its practices, this Book aims to question and criticize many of the prevailing political, legal and constitutional theories.

 

At the end of the session, a few minutes were saved for discussion, which featured many questions, interventions and recommendations.