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His Excellency Dr. Salam Fayyad
Palestinian National Authority
Dear Mr. Prime Minister,
Believing in the obligation to make a consolidated official and civil society effort towards establishing and promoting the whole set of Palestinian values, rights and freedoms in line with principles and norms approved and safeguarded by the international bill of human rights; confirming the duty of the Palestinian National Authority (PNA) and civil society organisations to meet their national and legal obligation to safeguard human rights and defend them against any action that undermines them or limits the scope of their exercise; to ensure that everybody respects human rights and freedoms and abstains from seizing, politicising or controlling their exercise, enjoyment and enforcement; and paying due attention to put in place the principle of the separation of powers, embody the principle of legitimacy and rule of law and recourse to the Palestinian Basic Law as a legal reference that regulates public rights and freedoms as well as PNA agencies’ tasks and action,
AL-HAQ has deemed it relevant to submit this Memorandum to Your Excellency in order to brief you on impediments and challenges affecting public rights and freedoms. These predicaments prevent us from developing our society and consolidating its cohesion, perseverance and hope of a better future.
AL-HAQ highly appreciates your honest approach towards establishing legitimacy and rule of law. On the ground, we have witnessed a qualitative and de facto transformation in the institutionalisation of PNA bodies. Citizens have perceived a termination of the phenomena of instability, armed chaos and other negative aspects of insecurity, which are now a legacy of the past. Despite the fact that we admit the serious and honest approach towards realising these achievements, we still face a number of challenges which are posing a real risk to public rights and freedoms. Should they persist, these challenges may lead Palestinian society and its civil institutions towards an ever more authoritarian power.
In addition to complaints and requests for legal advice submitted by individuals to AL-HAQ’s Legal Research and Advocacy Department, reports by field researchers of AL-HAQ’s Monitoring and Documentation Department reveal that a number of serious violations continue to take place. Grave infringements include the following:
1. Arbitrary detention on grounds of political affiliation
In the West Bank, PNA security agencies continue to detain civilians accused of affiliating with the Islamic Resistance Movement (Hamas). Civilians are detained in line with arrest warrants issued by the Military Justice Authority in accordance with the 1979 Revolutionary Penal Law of the Palestine Liberation Organisation. Arbitrary detention is illegal as it violates the provisions of Articles (11 and 12) of the Palestinian Basic Law and Law of Penal Procedure No. (3) of 2001. Rulings of the Palestinian High Court of Justice – the highest judicial authority – clearly emphasise that the Military Justice Authority may not detain civilians.
Pursuant to Article (112) of the Basic Law, only the Attorney General or the appropriate court is entitled to detain civilians even in a state of emergency. Therefore, security services, which exercise the judicial police power, must respect and enforce this procedure in the event they arrest any civilians.
2. Failure to present arrest and search warrants
According to dozens of affidavits documented by AL-HAQ, Palestinian security officers do not present any legal warrants when they arrest or search civilians, limiting their approach to , verbally identify themselves and their mission and therefore gravely impinging on applicable procedures. Articles 29, 30, 39, 40, 41, 48, and 50 of Palestinian Law of Penal Procedure No. (3) of 2001 oblige law enforcement officials to present arrest and search warrants as well as to abide by of the applicable rules when they detain or search individuals. Additionally, Article (41) prescribes that “domiciliary searches must be conducted during the day, and houses may not be entered at night unless they are the scene of a flagrant crime or if exigencies so warrant”.
3. Circumventing the Palestinian High Court of Justice’s rulings on the release of prisoners
You have made a clear and definitive decision obliging official bodies and security services to respect and implement court rulings. Your decision manifests the truth of your serious and honest willingness to promote the rule of law and judicial independence, impose the respect of law and order, and reinstate the Palestinian Judiciary and consolidate its status and solemnity, which had been debilitated due to security agencies’ disrespect of its decisions. As is apparent, however, security services have responded to this development with a logic of circumvention and elusion. Though security agencies are in principle committed to implementation of the High Court’s decisions on the releasing of detainees, they frequently nullify the practical effects by detaining released persons under the pretext of other charges. In other cases, the named security service does implement the court decision, but the detainee would be arrested by another service within hours or days. In practice the original release order is deprived of any value. The detainee’s family will be exhausted as they will need to go back to court and apply for a new release order. In addition to the High Court of Justice’s decisions, security services also circumvent the decisions of lower courts. In this context, release orders are implemented, but affected persons are summoned and detained again.
Undoubtedly, circumventing rulings of Palestinian courts indicates the security officers’ disdain for the sovereign judiciary and sacred judicial decisions. So far, court decisions have not gained any value or respect. This attitude is a clear manifestation of a deep-rooted and prevalent culture of “circumventing and evading” the rule of law in cases where judicial decisions are in conflict with the security agencies’ desires and trends. In accordance with Article (106) Palestinian Basic Law, such an action is deemed to be a crime: “Judicial rulings shall be implemented. Refraining from or obstructing the implementation of a judicial ruling in any manner whatsoever shall be considered a crime carrying a penalty of imprisonment or dismissal from position if the accused individual is a public official or assigned to public service. The aggrieved party may file a case directly to the competent court and the National Authority shall guarantee a fair remedy for him.”
4. Continued exercise by the Military Justice Authority of the civil judiciary’s jurisdiction
In pursuance of the PLO Revolutionary Penal Law of 1979, the Military Justice Authority continues to exercise the power of issuing arrest warrants against Palestinian civilians. With disregard to scores of decisions entered by the highest Palestinian judicial authority, all detentions are conducted on grounds of arrest warrants produced by the Military Justice Authority. The Palestinian High Court of Justice has ruled that the Military Justice Authority should not have jurisdiction over civilians, who are intrinsically subject to that of the civil judiciary.
Subjecting civilians to the jurisdiction of the Military Justice Authority and Military Prosecution is a flagrant infringement on provisions of the Basic Law. To this avail, Article 101(2) affirms that military courts may not have any jurisdiction beyond military affairs. Such an activity also clearly and gravely violates the provisions of Articles 6 and 30 under the Basic Law.
Beyond doubt, a fair and independent judiciary is one of the most important safeguards of human rights and freedoms. A solemn and independent judicial system is an essential pillar of ensuring society’s stability and security in political, economic, social and cultural fields. Should this guarantee be absent or undermined by impunity, atrocity, disregard for judicial independance, or military judiciary acting ultra vires, society will surely lose expedient components of stability, growth and development.
5. Interference in the affairs of associations
According to complaints filed with AL-HAQ by charitable associations and civil society organisations, the competent department at the Ministry of Interior continues to infringe on the provisions of the Law of Charitable Associations and Civil Society Organisations and its respective regulations. Although these prohibit official authorities from intervening in meetings, elections, boards or members of associations and organisations, the Ministry of Interior insists on attending general assembly meetings and approving their elections. In some cases, the Ministry appoints and imposes board members or stipulates that certain nominees be excluded from the elections. AL-HAQ also noted that relevant departments have neglected the enforcement of High Court’s decisions regarding objections against the Ministry of Interior’s decisions and interventions. The combined action of the Ministry of Interior has rendered the freedom of incorporating charitable associations and civil society organisations worthless.
6. Torture and abuse
AL-HAQ would like to highlight major improvements in security services’ treatment of detainees. We have witnessed a noticeable decline in torture and in cruel, inhuman and degrading treatment of prisoners. As is obvious by relevant monitoring and documentation, incidents of torture have been isolated and sporadic.
Torture and other forms of cruel, inhuman and degrading treatment would have not occurred if there had been clear and explicit Palestinian legislation that addresses various aspects of this crime. Effective regulations of PNA do not adequately cope with torture. Article 208 under the Jordanian Penal Law No. (16) of 1960, which is in force in the West Bank, provides that torture is a misdemeanour, not a crime. Hence, it is expedient that this deficiency be addressed and adjusted. AL-HAQ believes that the absence of proper legal provisions on torture has contributed to the creation of an environment, which enabled the exercise and spread of torture. Moreover, the public has increasingly felt that accountability and prosecution are lacking. We believe that the Executive should adjust this defect by enacting a regulation that will prohibit and put an end to torture. and ensure that torture will not be exercised under any political or governmental changes.
7. Dismissal from civil service on political grounds
The PNA’s employment policy continues to be based on security vetting. Accordingly, administrative bodies do not employ or enter into a contract with any person, who is not recommended by Palestinian security agencies. Many are thereby excluded under the pretext of their “political affiliation with Hamas” or with other similar movements. Hundreds of employees have been sacked on the same grounds. In the domain of citizens’ rights to occupy public positions, an official policy of affiliation-based discrimination is prevalent in the Palestinian territory.
The PNA does have the right to protect its institutions while maintaining security and order. This right, however, must not in any way become an obsession that questions citizens’ loyalty. To occupy public functions is both a right and a freedom that must be provided to all citizens on an equal footing without any consideration of political or partisan grounds. In particular, the civil service is governed by rules and standards that allow competent bodies to hold accountable any employee who violates the code of professional conduct. Thus, no person is immune if they deviate or transgress from the work requirements prescribed by public administrations.
Voicing its concern and fear of these persistent practices, AL-HAQ hopes that Your Excellency intervene as you deem fit and take the necessary measures to curb the reported violations and put an end to the resultant adverse outcomes and risks. In the course of promoting the procedures, you have progressed towards establishing security and reinstituting the rule of law and judicial independence. AL-HAQ also hopes that Your Excellency prioritise and pay due attention to these predicaments and challenges.