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23 June 2009

 

Position Paper

PCHR has Reservations about Regulations Adopted in the Context of Ongoing Political Fragmentation

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.