Publications Law Prior to 18 May 1995
The legal situation in the Occupied Palestinian Territories is unique and complex. It reflects the various periods of foreign domination; the Ottoman Empire, the British Mandate, the Egyptian Administration in the Gaza Strip and Jordanian rule in the West Bank, and the Israeli Occupation which began in 1967. These periods of domination were characterised by the violation of the rights of the Palestinian people; every aspect of life was controlled, including the freedom of expression. This affected art, literature, and other social and cultural expression, as well as political, discourse.
British Mandate Period
During the British Mandate between 1916 and 1948 the British High Commissioner had governmental and legislative responsibilities in Palestine. On 19 January 1933, a law on publications came into force which regulated the printing and publishing of all material, including books, newspapers, and the machinery required to print these materials. This was the first legal instrument used to control publications in Palestine.
Under this publications law the British High Commissioner was granted wide powers to deal with unlawful activities. One such activity was publishing articles which would "jeopardise public tranquillity" or carried "false rumours or information" aimed at creating a "state of panic and despair. The High Commissioner under such circumstances could suspend the publication and, if the newspaper was published outside, he could prohibit its entry into Palestine for as long as he saw appropriate. This was supplemented by the Penal Code of 1936, which added categories of prohibited publications.
The British Defence (Emergency) Regulations of 1945 was the nadir of oppression during the Mandate period. The regulations instituted a system of censoring publications. The Censor could ban or deny the import and export of any publication which was deemed harmful to public safety or public order. Licences for publication could be refused "without justification", and conditions could be attached to the granting of licences. All political publications, including artistic materials, were banned unless there
was prior approval.
Egyptian Administration of the Gaza Strip
The Gaza Strip was under Egyptian administration from the entry of its army in Palestine in May 1948 until June 1967 when Israeli forces began their occupation, following the Arab-Israeli War.
The Egyptian Administrative Governor issued Order No. 6 which placed all executive, legislative and judicial functions under the control of Egyptian forces in the Gaza Strip. This Order also maintained British Mandate law, including those of the British Mandate period, in existence prior to 15 May 1948.
Even with the powers of the British Mandate era, the Egyptians still found it necessary to tighten laws on publication and extended it to the transfer of information. The Censor was entitled to ban or suspend the distribution of publications and to confiscate publications, presses and other machinery used for publications, and the places where the publications were prepared and printed.
Seven years later, the Egyptian Government issued the Basic Law of the Gaza Strip. This law set up a constitutional framework which included certain rights and freedoms of individuals. Article 6 stated that the "freedom of thought is guaranteed and everybody is entitled to express his opinion". However, this right could only be exercised within the law. As the Basic Law confirmed the maintenance of the legal regime which existed prior to 1948 - i.e. laws which suppressed freedom of expression - the statement protecting these freedoms hardly sought to establish a constitutional right. Interestingly, the law is not novel in its approach of claiming to protect the freedom of thought, opinion and expression, on ' the one hand, but, on the other, limiting this freedom to the requirements of laws which actually seek to diminish this right.
Jordanian Rule of the West Bank
While the Egyptians administered the Gaza Strip, the Jordanians subsumed the West Bank into the legal and political system of the Hashemite Kingdom.
In terms of the freedom of expression, a law on publications was passed in 1955 which imposed numerous restrictions on the freedom of the press. In 1967 a more comprehensive Press and Publications Law was passed, which repealed the 1955 law. This law empowered the Cabinet of the Hashemite Kingdom to withdraw licences for publishing and suspend publications when the materials threatened national life, national security, the constitutional basis of the Kingdom, or offended national feeling or morals. This law also banned publications carrying information on the King or the royal family, unless authorised.
The Israeli Occupation of the Gaza Strip and West Bank
On the second day of the Israeli occupation, two decrees were issued granting all governmental power to the commanders of the Israeli army occupying the Gaza Strip and West Bank. These orders, as with earlier regimes, retained law which had been in force prior to occupation by the Israeli army.
The law restricting freedom of expression was augmented early in the Israeli occupation by Orders No.50 and No.51. These Israeli Military Orders required the licensing of publications and occupying forces could confiscate newspapers or other materials published without licence. Israeli military censors had to approve all printed material and were free to edit or delete articles, or to refuse permission for publication. The Israeli Censor also drew up lists of books, amounting to more than 6,000 titles, which were banned from publication and distribution in the Occupied Territories.
Freedom of Press and Publication under the Cairo Agreements
The Cairo Agreements gave the Palestinian Authority limited legislative power. And maintained the Israeli Military Orders, which were to remain in force until negotiated away. Paradoxically, the Cairo Agreement sought to protect human rights whereas by maintaining the Military Orders - which had been used to suppress the rights of the Palestinian people - it also took these rights away. But, subsequent behaviour indicates that the priority, of Israel particularly, was the maintenance of a regime which protected security and involved oppression. Although, it is worth noting that the Palestinian Authority itself chose to reaffirm the oppressive existing legal regime.
A Press Law was envisaged under the Cairo Agreements. Article Xll(l) stated:
"Israel and the Palestinian Authority shall seek to foster mutual understanding and tolerance and shall abstain from incitement, including hostile propaganda, against each other and, without derogating from the freedom of expression, shall take legal measures to prevent such incitement by any organisations, groups or individuals within their jurisdiction."
The emphasis of this Article seems to be the suppression of material that may be harmful to relations between Israel and the Palestinians, especially whilst the negotiations are continuing, rather than to uphold the freedom of expression.
It is clear that if we compare it to the text of international treaties on human rights there is a fundamental difference in approach. In international human rights treaties, the freedom of expression is not absolute and the relevant articles detail the exceptions. The list of exceptions tends to be exhaustive and certainly jurisprudence, especially from the European Court of Human Rights, confirms this. The Cairo Agreement deals with this in the opposite way; the fostering of good relations is primary and information should be controlled in order to achieve this. The article merely makes reference to the freedom of expression.
The article should not be over-emphasised. It is not legally binding on the Palestinian Authority or Israel, but its intention article is clear; human rights should come secondary to negotiations in the peace process. As the Palestinian Authority has been obliged to consider,lsraeli security and, in particular, any incitement against Israel by opposition Palestinian groups as a priority in order to gain concessions at the negotiating table, Israel has been able to coerce the Palestinian Authority into taking firm measures against opposition groups within the autonomous areas of the Occupied Territories, (see note 17 above).