Higher Sharia Court Council Circular on Travel Restrictions: Grave Mistake that Must Be Reversed
Date: 16 February 2021
Time: 08:00 GMT
The Higher Sharia Court Council in Gaza issued on 14 February 2021 judicial circular no. (01/2021) on travel restrictions. The circular includes 5 items that include serious discrimination against women and violates the right to freedom of movement guaranteed by the 2003 Palestinian Basic Law and Palestine’s obligations under the international law after its accession to several international conventions since 2014.
The Palestinian Centre for Human Rights (PCHR) expresses its shock at the issuance of this circular which constitutes a violation of the Palestinian Basic Law and Palestine’s international obligations. PCHR hereby calls upon the Council to reverse this illegal circular immediately.
The circular includes discriminatory items against women as Item (2) gives the father authority over his children’s right to travel without the mother’s permission if the latter loses her right to child custody after getting married on one condition that the father takes the court’s permission. On the other hand, women are not allowed, in all cases, to travel with their children except with the father’s permission, constituting unjustified discrimination. The circular has also ignored to mention the right of women, who do not have custody of their children, to give the approval on their children’s travel in all cases as she has the right to child viewing.
Item (4) of the circular also seriously discriminates against women as it prohibits unmarried woman, of all ages, from traveling without their guardian’s approval. Thus, according to this item, border security officers have the power to detain or return any unmarried woman who travels without showing her guardian’s approval, infringing on women’s freedom and independence. Although this item has limited its application to two cases: occurrence of harm or a lawsuit stipulating travel ban. However, the circular has not clarified the nature of the harm in question; also, the item has made the ban as the rule not the exception. It should be noted that the Gaza de-facto authorities’ practices on the ground reveal the trend toward this conduct even before the circular was issued.
PCHR emphasizes its absolute rejection of what was codified in this circular as it constitutes a blatant violation of Article (9) of the Palestinian Basic Law which guarantees equality for all citizens in Palestine. Moreover, the circular breaches Article (11) of the same law, which conditions that travel bans must be issued by a judicial order that is in accordance with the law. In this context, the latter condition is not available in the circular as there is no text in the Personal Status Law that allows such restrictions.
Also, this circular contradicts Palestine’s international obligations under all human rights conventions, in particular the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the International Covenant on Civil and Political Rights, which emphasize equality and enshrine a prohibition on discrimination, as well as, the right to liberty of movement. The requirement to obtain prior authorization for movement is an unacceptable restriction on this right, as confirmed by the Human Rights Committee in its general comment No. 27. Furthermore, these violations are multiplied by being biased towards gender, as the requirement for permission is exclusive to women.
The inclusion of the phrase “pure harm”, which is a vague phrase that allows for expansive interpretation, increases the seriousness of this circular, and may lead to imposing further arbitrary restrictions on the right to movement, affecting social stability, increasing family disputes and infringing justice.
PCHR stresses that the role of judicial circulars must be limited to the interpretation of laws in order to standardize their application and not to create laws, which is considered as an exclusive function of the legislative authority as stipulated in the Palestinian Basic Law.
PCHR reiterates its position rejecting all forms of discrimination contained in the Palestinian Personal Status Law, in particular those applicable in the Gaza Strip, as well as all forms of discrimination included in the judicial circulars, in particular those relating to custody, travel and dissolution of marriage.
PCHR also calls upon the council to respect the Palestinian Basic Law and Palestine’s international obligations in the interpretation and application of existing laws until they are amended by the competent legislative authorities.
Furthermore, PCHR reiterates its position rejecting all forms of discrimination and restrictions on freedoms and demands the Council to immediately reverse this circular and to abide by the limits of the law. PCHR also stresses that any restrictions relating to the protection of the right to custody or viewing must be equal between both parents, with the sole aim of protecting the best interest of the child.
PCHR calls on all border control agencies to cease any discriminatory practices against women with respect to the right to travel.
Finally, PCHR calls upon civil society, especially at this important phase as we prepare for general elections, to work jointly, to pressure decision-makers to remove all forms of discrimination against women from Palestinian laws and to adopt the Family Protection Law within the electoral lists’ programs, which ensures a comprehensive protection for women and establishes a conducive environment for strong and stable families.