Introduction

As part of the overall focus on human rights of the Palestinian Centre for Human Rights (PCHR) focus on human  rights, the Democratic Development Unit (DDU) pays special attention to civil and political rights. The DDU establishes indicators to measure the democratic reform process within the Palestinian Authority (PA). This is part of our belief that such indicators enable us to indentify future trends as well as the required efforts to build a democratic society where all people enjoy their rights, which are ensured by international conventions through the principle of the separation of powers, the rule of law and political participation.

The right to freedom of opinion and expression are fundamental pillars of any democracy and without them a robust democracy is unachievable.Therefore, PCHR exerts a lot of effort towards protecting and strengthening these rights and ensuring they are enjoyed by all persons. In this regard, PCHR’s Democratic Development Unit has been issuing periodic reports, which document human rights violations related to the right to freedom of opinion and expression and the right to the peaceful assembly under the PA. This report represents the ninth such report of November 2010.

The reporting period saw the continued political split between the Gaza Strip and the West Bank. The government established by President Mahmoud Abbas, and led by Dr. Salam Fayad continued to manage affairs in the West Bank, while the Gaza Strip government, led by the dismissed Prime Minister Ismael Hania , managed affairs in the Gaza Strip.

The period was typified by increased security chaos, coupled with security forces increasing their control over their respective spheres of control, at a level unseen since the creation of the PA in 1994. Also, there was no improvement with regard to the right to freedom of opinion and the right to peaceful assembly; they were the victim of the political split.

During the reporting period, no structural reforms concerning the legal framework which regulates and limits on the right to freedom of opinion and expression in the PA areas, took place. The Palestinian Basic Law, amended in 2003 (the temporary constitution), Press Law No. 9 of 1995, the presidential decree concerning perpetuation of the national unity and the prohibition of incitement, remain the constitutional framework which regulates enjoying these rights.

The Basic Law provides special protection for the right to freedom  of opinion and expression. However, legislation has undermined these rights giving the concerned authorities wide-ranging powers to impose limitations that undermine the essence of the right to freedom of opinion and expression.

For example, the Press Law No. 9 of 1995, which was issued by late President Yasser Arafat, is a law that serves to undermine the Basic Law’s assurance of freedom of opinion and expression. The Law limits the right in the following ways: (1) limits ability to be licensed – the law gives the Information Minister the right to refuse any license for the printing house, the printed material  and licenses for newspapers; (2) Prevented and the prohibited material – the law includes a long list of prohibited materials which are elastically, vague and subjectively formulated. For example, the list of prohibitions includes the publication of everything that contradicts democratic principles and national responsibility, anything against morals, values and Palestinian traditions
and anything that can agitate violence, hatred and fanaticism. These concepts are elastic and vague and can be misused. The list of prohibitions includes banning foreign funding, preventing a journalist from working with any foreign bodies but through the system of foreign mass media correspondents; (3) Prosecution: the law includes a long list of punishments such as imprisonment, fine or both. Such punishments may be imposed on editors-in-chief, journalists, authors of articles, owners of the printing house and owners of the printed material. This issue has contributed to imposing self-constraints on press due to fear of legal persecution.

PCHR has criticized this law because it limits the right of press and publication freedom as well as the freedom of journalists. Also, PCHR has always emphasized that the Press Law was issued by a presidential decree before the Palestinian Legislative Council (PLC) was established. The PLC should have reconsidered the law and determined whether to reissue, amend or cancel the decree. PCHR called for amending that law in a way that guarantees applying the right of freedom of opinion and expression according to the provisions of the Basic Law (the temporary constitution) and relevant international standards. So far, PCHR’s calls have not been heeded by the PLC.^[1]

The Presidential Decree No. 3 issued in 1998 by late President Yasser Arafat also impinges the right to freedom of opinion and expression. The Decree was issued within the framework of obligations imposed on the PA as part of the “Wye River” Memorandum of Understanding (MOU) that was signed by the Palestinians and Israelis in October 1998. The MOU included, amoung other things, mechanisms of security and cooperation between the two sides.^[2]  The Decree concerned the perpetuation of national unity and incitement prevention. PCHR has long held that the Decree constitutes a critical threat against the rights of opinion and expression because of the limits imposed by the law, which in turn minimize the space available for persons who should be allowed to enjoy their right to freedom of opinion and expression.

During the reporting period, no changes concerning the legal framework which regulates the right to peaceful assembly in the PA areas were made. The Basic Law (the temporary constitution) and the Public Meetings Law No. 12 of 1998 form the constitutional and legislative framework, which ensures this right. However, the Executive Bill of the Public Meetings Law No. 12 issued in 1998, entering into force on 30 April 2000, by the late President Yasser Arafat, serves as a major limit to the enjoyment of the right to peaceful assembly. While the established legal framework guarantees special protection for the right to peaceful assembly, including the right organize peaceful rallies, holding public meetings and other right manifestations within the assembly, the Executive Bill remained a major tool for the executive authority to limit exercise of this right.