The Palestinian Centre for Human Rights (PCHR)
expresses its reservations regarding the adoption of regulations by the
Palestinian National Authority (PNA) under the ongoing state of
fragmentation. These regulations include those made by the Change and
Reform Bloc in Gaza in the name of the Palestinian Legislative Council (PLC)
and Presidential Decrees issued by President Mahmoud ‘Abbas in the West Bank
on the basis of a lack of quorum in the PLC. PCHR calls upon the PNA
to refrain from adopting new regulations under the ongoing state of
fragmentation. The Centre views these regulations to be unnecessary as they
serve factional policies and programs that may increase the current
fragmentation. PCHR demands that these regulations to be added to the
agenda of the Palestinian national dialogue. They must be annulled or
reviewed by a reconvened legislature in accordance with the law.
The current crisis of the legislature and
the legislative process is the results of the same factors that led to the
unprecedented deterioration in the status of human rights and PNA
institutions following Hamas’ victory in the legislative elections of
January 2006. The first of these factors are the war crimes that the
Israeli occupation forces (IOF) continue to commit against the Palestinian
civilian population, including the arrests of PLC President Dr. ‘Aziz Dweik
and 40 other PLC members. The majority of those arrested are from the Change
and Reform Bloc (Hamas). IOF implemented these arrests less than three
months after Hamas’ formation of a new PLC. For the third consecutive year,
the PLC President and other PLC members remain in prison. These actions
constitute flagrant IOF intervention in the work of the legislature. Such
actions are intended to paralyze the legislative power and to undermine the
parliamentary majority that gained voters’ confidence and an electoral
mandate. Further, IOF flagrantly intervene in the work of the legislature
via movement restrictions, which include hindering PLC members’ access to
the offices of the PLC in Ramallah. Restrictions on movement have been
imposed by IOF since 1996; IOF are the only party that decides whether PLC
may convene or not.
The second factor that has contributed to
the deterioration taking place in the legislature is the internal crisis and
the fragmentation of PNA since the events of June 2007 and Hamas’ takeover
of Gaza. Shortly after the June events, President Mahmoud ‘Abbas issued a
set of presidential decrees to, inter alia, impose a state of
emergency and to suspend the application of some articles of the Palestinian
Basic Law in order to limit the power of the legislature and place full
power in the hands of the executive branch. Currently, the executive acts
without being held accountable by the legislature. PCHR has previously
objected to these decrees, deeming them unconstitutional.
After the formation of the new PLC, there
have been numerous political rifts between Fatah and Hamas. These rifts
have contributed to further disruptions in the work of the PLC. Since
November 2007, the Change and Reform Bloc began holding PLC sessions in Gaza
after obtaining written authorizations from imprisoned PLC members, and thus
claiming the quorum necessary for the PLC to convene. The rest of
the PLC members, from Fatah and other parties, have objected to this
decision and have refrained from attending PLC sessions in Gaza. PCHR have
previously stated its position as regards these sessions, considering them
to be part of the ongoing political crisis, without making legal discussions
about their legitimacy. These sessions have no legal basis; they are part
of the ongoing crisis and serve to deepen fragmentation between the West
Bank and the Gaza Strip.
Since then, the Change and Reform Bloc has
discussed, ratified and issued a number of laws, without ratification by the
PNA President, as required by Article 41 of the Palestinian Basic Law: “The
President of the National Authority shall promulgate the laws voted by the
Palestinian Legislative Council within thirty (30) days of their transmittal
to him. The President may refer a law back to the Legislative Council with
his observations and the reasons of his objection within the same period.
Otherwise, the law will be deemed promulgated and will be published in the
Official Gazette”. At the end of last May, the Change and Reform Bloc
ratified amendments made to: the Code of Criminal Procedure no. 3 for the
year 2001, Reform and Rehabilitation Centers Code no. 6 for the year 1998,
and the Penal Code no. 74 for the year 1936. The ratification of these
amendments was justified by claiming that there are gaps in the amended laws
and that there was a pressing need for the laws to be amended for the sake
of civilians.
In the meantime, Palestinian President
Mahmoud ‘Abbas issued a set of Presidential Decrees. In addition to the
above mentioned decrees issued after June 2006, numerous other decisions
that were not presented to PLC were taken. Under the pretext that PLC was
not in session, the President gave himself the right to issue decisions that
have the power of law as stipulated for in Article 43 of the Palestinian
Basic Law: “The President of the National Authority shall have the right, in
cases of necessity that cannot be delayed, and when the Legislative Council
is not in session, to issue decrees that have the power of law”. Decisions
taken by the Palestinian President included a decision, issued in September
2007, on the Law on Presidential and Legislative Elections. At that time,
PCHR criticized that decision viewing it as a continuation of efforts
intended to undermine the legislative branch.
PCHR have reviewed the abovementioned
amendments. Affirming its reservations about all the regulations
promulgated by the two parties to the crisis in Gaza and the West Bank,
PCHR:
1.
Views that regulations made by the Change and Reform Bloc in
the name of PLC in Gaza are beyond current needs and unnecessary. These
regulations tackled sensitive and basic issues by adopting unsound methods
aimed at providing more powers to security forces and law enforcement
officials and at ensuring absolute authority to the Hamas government. The
amendment to Article 206 of the Code of Criminal Procedure no. 3 for the
year 2001 stipulates that evidence shall be established in any criminal
proceedings relative to the use of drugs or other psychoactive substances
“using any methods of establishing evidence”. This amendment is aimed at
overcoming Article 220 of the same Code that stipulates: “During the process
of criminal procedure’s evidence compilation, all the reports made by the
official responsible for governmental or officially dependable laboratories
on the results of chemical tests or analysis of any suspected substances
shall be accepted”. Under the amendment made, there is no need to make
laboratory tests by a criminal laboratory as a way to test suspected
substances. Any other methods to test suspected substances shall be
accepted under this amendment.
2.
Considers that the mentioned regulations include trends to
gradually make politically and factionally motivated amendments and laws
aimed at serving the ideological objectives of the Change and Reform Bloc.
This is made clear in amendments made to the Penal Code.
3.
Stresses that the existing laws are sufficient to meet
current needs, and that there is no need to enact debatable laws that deepen
the state of ongoing fragmentation.
4.
PCHR has many reservations about PLC performance since its
creation in 1996, however, PCHR notes that the PLC has made reasonable
progress towards unifying the laws currently applicable in the OPT (which
include legacy Ottoman, British Mandate, Egyptian and Jordanian law).
Significant in this regard is the enactment of the Palestinian Basic Law and
the PNA Temporary Constitution. Putting an end to the role plaid by PLC,
and using it to enact laws and regulations which deepen the ongoing
fragmentation, affect the essence of PLC and its fundamental, unifying,
purpose.
5.
Notes with grave concern the continued disruption of the
other functions of the PLC, which include the supervision of the executive.
The executive power, divided into two governments in the Gaza Strip and the
West Bank, conducts its duties without any parliamentary supervision. The
PLC is completely sidelined, particularly in financial matters. There are
no approved budgets, no obvious data on the financial performance published
and no transparency and accountability principles are applied.
6.
Reiterates that there is no alternative to the national
dialogue which is the only choice for the resolution of the Palestinian
internal crisis, termination of the ongoing fragmentation, and returning
legitimacy to PNA institutions, including executive; legislative and
judicial powers. Until national dialogue is achieved, PCHR demands that the
two parties to the crisis annul all regulations made and refrain from
adopting new regulations that deepen fragmentation and serve only narrow
factional objectives. Further, PCHR demands that the issue of regulations
made during the fragmentation be added to the national dialogue program.
They must be annulled or reviewed by a reconvened, legitimate, legislature.
7.
Calls for restoring the legitimacy of the legislature
and demands the international community to exert pressured on IOF to release
PLC President and members who are held in Israeli prisons. PCHR also
demands the two parties to the conflict; Fatah and Hamas, to activate the
role of the legislative power, keep it apart from the conflict and empower
it to perform its duties, especially those relative to making supervision
over the executive power.
