PRESS RELEASE

Released @ 11:00 hours GMT 3^rd December, 1998

PCHR expresses its concerns with Presidential Anti-Incitement Decree Number 3 of 1998

On November 19, 1998 Palestinian President Yasser Arafat issued Decree Number 3 of 1998 regarding “strengthening national unity and preventing incitement.” The decree specified a number of acts that would be considered illegal and punishable by law. These acts included incitement, racial discrimination, the use of violence, and incitement to violence in a manner damaging to Palestinian relationships with foreign countries. Moreover, the decree prohibits the formation of illegal associations and incitement to violate agreements signed between the Palestine Liberation Organization (PLO) and foreign countries.

This presidential decree is considered as part of the Palestinian Authority’s commitment resulting from the Wye River Memorandum of October 23 signed by the PLO, Israel, and United States. Under the agreement, the Israelis have no “reciprocal” responsibility to change their relevant laws. PCHR warned at the time of the negative consequences of the memorandum, especially the security aspects, and called on all parties not to violate human rights once again during the implementation of the peace process. PCHR strongly believes that a just peace will not be achieved by violating basic human rights.

The Palestinian Authority issued this decree in accordance with its commitment to the Wye River Memorandum, but Israel nonetheless continues its incitement against the Palestinian people and the PA itself. The Israeli government, including the prime minister and foreign minister, continues its incitement urging the Israeli settlers in the West Bank and Gaza to take over more Palestinian land for settlements.

PCHR received the new presidential decree with surprise and expresses its concern with it for the following reasons:

1. The Palestinian Executive Authority has issued this decree in contradiction to the laws governing the area. The decree constitutes a grave breach of the jurisdiction and authority of the Palestinian Legislative Council (PLC). According to Article 28 of the Constitutional System of 1962 (which is valid in the Gaza Strip), the Executive Council is entitled, in the absence of the Legislative Council, to issue orders with the power of the law in cases that cannot be postponed. Such orders, however, shall be brought before the Legislative Council as soon as the Council is re-convened. The article is intended only to allow the legislative process to continue with certain urgent matters when the Legislative Council is not convened. Yet this does not mean in any way that the Executive Authority can assume for itself the responsibilities of the Legislative Council.
2. It is well known that the PLC has been working in its third session since March 1998. The Council finished its annual vacation on October 20, a month before the presidential decree. Accordingly, PCHR believes that there is no legal justification for issuing this decree, with the power of law, especially as it relates to basic freedoms and rights.

 

 

 

 

 

Indeed, as the Council was in session, this can only be seen as a usurpation of the proper role of the legislative branch by the executive branch. Quite simply, the executive branch had no right to make such a decree.

3. All acts pronounced as outlawed by the decree are already illegal, prohibited, and punishable by current Palestinian laws valid in the West Bank and Gaza Strip. In fact, the Palestinian Authority has inherited a significant amount of law and legislation promulgated in the area by the Ottoman rule earlier this century, the British Mandate, and the Israeli occupation. In each of these eras there were laws that prohibited acts such as incitement, violence, and illegal association. Most of these laws constitute a grave breach to political and civil rights and are imposed on the region by alien powers to guarantee maximum control. PCHR believes that the new decree added very little of significance to the already existing restrictions.
4. The only new element in the decree is that it considers illegal any incitement to violate agreements between the PLO and foreign countries. This very specific issue raises legal arguments regarding whether such agreements are valid in the West Bank and Gaza Strip. International agreements become part of local law after ratification by the legislative branches of each country. Neither the Palestinian National Council (the legislative branch of the PLO) nor the PLC, the legislative branch of the West Bank and Gaza Strip, have ratified such agreements in order to bring them into alignment with local law. In addition to this, the decree is very broad if we consider that hundreds of agreements have been signed between the PLO and foreign countries since its foundation in 1965. As the majority of Palestinians do not know about these agreements it is very possible that a citizen may violate one of these agreements without being aware of it, unless the meaning is restricted to the interim agreements with Israel.
5. In addition to this, it is not clear what is meant by incitement to violate agreements. It is not clear what the borders are between such acts of incitement and opposing the interim agreements and expressing opposing political views on the agreement. We believe that the freedom of expression is a human right guaranteed by international human rights law. The borders between freedom of expression and incitement must be clarified.
6. The pre-amble of the decree contradicts the contents. It relies on the 1979 Revolutionary Penalty Law of the PLO. This law has never been promulgated in the West Bank and Gaza Strip by a presidential decree prior to the establishment of the Legislative Council in 1996 or by the Council itself after that time. Legally speaking, PCHR believes that this law is not valid under the current legal system in the area. In addition to this, the 1979 Revolutionary Penalty Law implies incitement against a foreign country (Israel). This may result in confusing citizens even more. Indeed, merely to state what is mentioned in the Revolutionary Penalty Law could itself be considered as incitement against Israel.

The PCHR calls upon the PA to cancel this decree, to respect the principle of the separation of powers, and to assure that the executive branch does not exceed its powers. Furthermore, PCHR expresses its surprise at the lack of reaction and silence of the Legislative Council toward this case and the limitation it puts on the legislative role.

PCHR expresses its concern that at the very same time, the Council took no steps to make sure that the Palestinian Basic Law passed by the third reading in the Council in October 1997 was put into effect.