The Institute of Law Holds Conference on The Legislative Status in the Palestinian Territory Reality and Prospects

21 Jan 2013

On
Tuesday, 4 December 2012, the Institute of Law (IoL) at Birzeit University (BZU)
organised a conference on The Legislative Status in the Palestinian
Territory: Reality and Prospects. The event brought together a significant
number of specialists, experts, and representatives of official bodies as well
as local and international civil society organisations.

In the
opening session, Dr. Samia Huleileh, BZU Vice President for Community Outreach,
nbsp;delivered an address on behalf of Dr.
Khalil Hindi, BZU President. Huleileh expressed BZUrsquo;s gratitude to Mr. Hasan Al-Ouri,
Advisor to President of the State of Palestine for Legal Affairs; Mr. Michael Mertes,
Director of Konrad Adenauer Stiftung (KAS)-Ramallah Office; Mr. Jamil Salem, IoL
Director; and all representatives of participating institutions. She further stated
that the ldquo;Conference title is highly connotative: it characterises the
Palestinian current situation and resultant consequences of the internal
political division.rdquo; She added that the conflict and tension between parties
has adversely reflected on the legal and political context in Palestine.

nbsp;

His
Excellency Advisor Hasan Al-Ouri congratulated the Palestinian people for ldquo;Palestinersquo;s
birth certificate and recognition as a non-member observer state at the United
Nations.rdquo; Based on the discretion of the Presidentrsquo;s Office, Al-Ouri explained
that the President should implement his legislative powers in tandem with the
higher interests of the Palestinian people. He added that decree laws have
never been promulgated except after due consultation with relevant official and
nonofficial bodies. Al-Ouri emphasised that the Presidentrsquo;s Office ldquo;is pinning
hope on this Conference recommendations with a view to devise legal solutions
once the national reconciliation effort materialises.rdquo;

Mr. Michael
Mertes, Director of KAS Office, commended the years-long, distinctive working
relationship between KAS and IoL. Mertes confirmed that legislative reform and
review are a step towards state building. He thanked the organisers of the
Conference, wishing that it would be a success.

In conclusion
of the Conference opening session, Mr. Jamil Salem, IoL Director, expressed his
thanks to the audience, including representatives of the Presidentrsquo;s Office.
Salem articulated IoLrsquo;s high appreciation to KAS for its continued support of
the IoL activities. He noted that the Conference is an outcome of diagnostic
studies developed by the IoL to explore discrepancies between regulations in
force in the West Bank and Gaza Strip. To bridge the gap between these acts,
the Conference ldquo;will provide an unbiased assessment of the legislative status in
the Palestinian territory over the period 2007-2012,rdquo; he added. In this
context, the Conference ldquo;will come up with potential solutions that delineate
how such regulations should be dealt with,rdquo; Salem concluded.

Entitled
The Political Division: Between Law and Politics, the Conferencersquo;s first session was moderated by Advisor Ali Abu Dayyak,
Chairman of the Bureau of Legal Counsel and Legislation in the West Bank. In
his presentation on the Assessment
of Reconciliation Agreements: From Cairo Agreement to Doha Declaration,
Mr. Hani Al- Masri identified causes and roots of the internal Palestinian
political division.

nbsp;

On
behalf of Dr. Basem Zubeidi, Dr. Abdul Rahman Ibrahim, Professor of Political
Science at BZU, made a presentation on the Assessment of the National
Election Laws under the Internal Division from a Legal Perspective. Ibrahim
provided an overview of provisions of the Decree Law on National Election,
highlighting major pros and cons of this regulation.

In his
paper on The State of Emergency under the Amended Basic Law of 2003 and
Applications to the Palestinian Context, Mr. Ammar Jamous explained the
difference between the lsquo;case of necessityrsquo; and state of emergency, assessing
the legal value of presidential decrees issued in 2007-12 vis-agrave;-vis the Basic
Law and ordinary legislation.nbsp;

Commenting
on the first session, Ibrahim explained that the national reconciliation effort
involves both a legal and a political component. ldquo;Parties to the conflict are
looking for quotas, not reconciliation,rdquo; Ibrahim asserted. The internal political
divide has gone through difficult stages. Still, a mutual agreement should be
in place to ensure desired objectives are accomplished.

The
Conference second session on The Legislative Process and Problems Generated
by Dichotomous Authorities was moderated by Advisor Fawwaz Abu Zirr, Assistant
to the Cabinet Secretary for Legal Affairs. The session included talks by Dr.
Ahmed Al-Khaldi, Professor of Constitutional Law, who made a presentation on The Problem and Practices of Dual
Palestinian Authorities: Causes and Proposed Remedies of Negative Impacts.

In her paper on The Legislative
Process in the Palestinian Territory between 2007 and 2012, Advocate Haya Al-Hajj
Ahmad elaborated on dichotomous legislative mechanisms employed after the
internal political division. Article 43 of the Amended Basic Law grants the
President the power to issue decrees that have the power of law in cases of
necessity that cannot be delayed. Al-Haj Ahmad also made a briefing note about
major decree laws issued by the PNA President in 2007-12.

Addressing
Post-2007 Law-making Mechanisms in the Gaza Strip, Mr. Nidal Barham
stated that a drafting committee, including ministers and members of the Palestinian
Legislative Council (PLC), was established in Gaza. Towards 9 January 2009, laws
used to be sent by fax or email to the PNA President for approval within 30
days. Otherwise, laws would automatically enter into force. According to the
new Law on the Official Gazette, these were published in the Official Gazette. After
9 January 2009, however, no laws have been sent to the Presidentrsquo;s Office for
approval and promulgation. In this context, Barham went over major laws passed
by the Gaza-based PLC.

In his
presentation on the Scenarios
and Remedies of the Legislative Status in the Palestinian Territory,
Advocate Mahmoud Alawneh presented and highlighted legal consequences of three
scenarios: continued, maintained or legitimated internal Palestinian political
division. Alawneh stressed that another scenario should envisage legal
consequences and solutions of the current status quo once the Palestinian
national reconciliation is achieved and the division terminated. In this scenario,
the best legal remedies can be examined. To this avail, Alawneh explored
potential solutions for regulations promulgated in 2007-12 as well as for
duplicate public institutions. To be chaired by the Ministry of Justice, Alawneh
proposed that a legal committee be established to examine and consolidate these
regulations.

In
conclusion of the Conference second session, Dr. Issam Abdeen commented that
the internal political division should be overcome, and that any party may not claim
legitimacy except in accordance with clear legal principles.

Moderated
by Dr. Feras Milhem, the Conference third session was entitled Oversight of
the Constitutionality of Law: Diagnosis of the Current Reality and Outlook to
the Future. In this session, Advocate Abeer Dirbas made a presentation on Oversight of the Constitutionality of
Laws under the Internal Political Division and Role of the High Court in its
Capacity as a Constitutional Court.

In his working paper on The High
Judicial Councilrsquo;s Vision of the Formation of the High Constitutional Court,
Advocate Fateh Hamarsheh explained that it was not possible to form the Constitutional
Court under the current political conditions. In addition to several other
obstacles, the internal political division is a primary impediment to establishment
of this Court.

Concluding the Conference third
session, Dr. Issam Abdeen introduced some legal observations on the Decree Law
Amending the Law of the High Constitutional Court.

In his comment on the session, Dr. Asem
Khalil noted that the High Constitutional Courtrsquo;s role was negative under the
internal political division. Khalil stressed that the Court should play a more
effective and efficient role by applying principles of the Constitutional Law.
Literal enforcement of the Law should be avoided.

Entitled
Assessment of Legislation Enacted under the Political Internal Divide:
Selected Laws, the Conference fourth session was moderated by Ms. Reem Al
-Botmeh. In her paper on the Legal
Assessment of the Decree Law Amending the Company Law, Ms. Alaa Hammad shed light on relevant
major provisions, highlighting legal positions created by the Decree Law.

Advocate Ahmad Nassrah explained in his
paper The Effect of the Internal Political Division on the Judicial
Authority that the Judicial Authority ldquo;has been involved in a conflict, to
which it is not a party.rdquo; The Judiciary should have well maintained its independence
and impartiality.

In his
presentation on Assessment
of the Decree Law on the High Constitutional Court, Mr.
Ashraf Siyam made
clear that the provisions of this Decree Law have further empowered the
Executive to control the Constitutional Court, thereby undermining its
independence by law.

Mrs. Sama Isa elaborated on the functions
of family courts under the internal political divide. In her paper on Assessment
of the Laws on Family Courts and Impact of the Internal Political Division on
the Functions of Family Courts, Isa made a briefing note about major
changes introduced to the structure of family courts and relevant legislation.

Commenting on papers presented in this
session, Advocate Raed Abdul Hamid stressed that the rationale and philosophy
of legislation enacted in 2007-12 should be examined. He added that the
Constitutional Court should scrutinise decree laws and play its assigned role
in promoting constitutional norms within the Palestinian legal system.

In conclusion of the Conference, two
important recommendations were put forward. Firstly, an expedited action should
be launched to put an end to the internal political division between the West
Bank and Gaza. Secondly, there is a need for a political will to make the
higher interest outweigh personal and partisan interests. Participants also
submitted the following recommendations:

-nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;
Rearrange reconciliation priorities;

-nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;
Ensure that the national reconciliation
effort maintains a national context;

-nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;
Develop a unifying strategy;

-nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;
Examine legal scenarios and remedies of
dichotomous regulations and public institutions in the West Bank and Gaza;

-nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;
Establish specialised legal committees
to examine the legislative status in the Palestinian territory and explore
legal positions created thereby;

-nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;
Scrutinise how effective provisions of
the Basic Law are in coping with the current crisis;

-nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;
Create conducive conditions for
establishment of the High Constitutional Court, particularly under the current internal
divide;

-nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;
Review and examine thoroughly the Law
on the High Constitutional Court as well as any subsequent amendments; and

-nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;nbsp;
Establish legal committees to examine
problems associated with regulations issued forth in the West Bank and Gaza
Strip over 2007-12, including relevant effects and changes introduced to both institutions
and individuals.

nbsp;

It is
worth noting that this Conference is an outcome of activities carried out by
the IoL Legislative Support Department, as part of its Law and Politics
project, with a generous support from KAS Ramallah Office. This research
project is designed to assess the legislative status in the Palestinian
territory over 2007-2012, with a particular focus on the impacts generated by
the current Palestinian internal political divide on the broader Palestinian
legislative process. Research papers will be published in a book towards the
end of December 2012.nbsp;

nbsp;