Situation in the Middle East: the Israeli-Palestinian peace process
24 September 1996
Rapporteur: Mr NEMETH, Hungary, Liberal, Democratic and Reformers' Group
II. The legal framework set up by the Israeli-Palestinian peace agreements
A. The status of the Palestinian Interim Self-Government Authority
B. Jurisdiction of the Palestinian Interim Self-Government Authority
C. Legislative powers
D. Judicial system
E. Human rights and the rule of law
III. The Palestinian Legislative Council (PLC)
A. The PLC's Rules of Procedure
B. The PLC and human rights practices of the Palestinian Authority
C. The PLC and the media
D. The PLC and the civil society
E. The legislative process: the elaboration of the Basic Law
1. In its Resolution 1013 (1993) on the peace process in the Middle East, the Assembly reiterated its readiness "to contribute to building a climate of confidence between the parties engaged in this process, especially in fields where its expertise and experience are recognised". Among these fields, the resolution made explicit reference to the "protection of human rights and recognition of the rights of minorities".
2. As a follow-up, a meeting on "the implementation of Resolution 1013 (1993): the Israeli-Palestinian Peace through Democracy" was organised by an ad hoc committee of the Bureau in Rhodes from 9 to 11 July 1995, in co-operation with the Council of Europe's North-South Centre. The focus was thus put on the Israeli-Palestinian peace process as part of the whole peace process in the Middle East region. During the Rhodes meeting, the participants proposed the setting up by the respective Assembly committees of five task forces to formulate specific proposals on the Council of Europe's contribution to the Israeli-Palestinian peace process. It was agreed that one of the task forces should deal with human rights and, in particular, the judiciary and penitentiary systems and the Committee on Legal Affairs and Human Rights was entrusted with its organisation.
3. The Committee on Legal Affairs and Human Rights set up an ad hoc sub-committee to organise the meeting of its task force, under the Chairmanship of Mr Fenech. It met on 4 March 1996 in Paris with the participation, among others, of the Minister of Justice of the Palestinian Authority, Mr Middein, an assistant/legal adviser of the Israeli Ministry of Foreign Affairs, Mr Taub, experts from the European Commission for Democracy through Law ("Venice Commission") and the Council of Europe's North-South Centre, and a legal adviser from the Norwegian Ministry of Foreign Affairs (see in Appendix I the complete list of the members of the task force).
4. A few days before and the very same day of the meeting of the task force, there had been bomb-attacks by Palestinian Hamas terrorists on buses and shopping centres in Jerusalem, Tel Aviv and Ashkelon which resulted in the death of sixty-six Israeli civilians. Nevertheless, the atmosphere during the meeting was positive. A minute of silence was kept at the beginning of the meeting for the deaths of the previous days and the Palestinian Minister of Justice started his statement by condemning those attacks which he characterised as directed against both people, the Israeli and the Palestinian. His words were mostly appreciated by the Israeli representatives present and the meeting proceeded with the two sides engaged in a constructive dialogue. Concrete proposals for assistance to the Palestinian Authority by the Council of Europe in the field of human rights and the judiciary were formulated at the end of the meeting. Those proposals were immediately communicated to the rapporteur of the Political Affairs Committee, Mr de Puig, who has included them in the draft resolution, adopted by that committee on 4 September 1996.
5. In his contribution to the debate, the rapporteur wishes to concentrate on issues of interest to the Committee on Legal Affairs and Human Rights which were addressed during the meeting of its task force and are not dealt with in the report of the Political Affairs Committee: the legal framework established by the Israeli-Palestinian peace agreements with regard to the status, jurisdiction and legislative powers of the Palestinian Interim Self-Government Authority, the Palestinian Council, as well as the provisions regarding the judicial system and respect for human rights and the rule of law (below under Section II). Moreover, another section will deal with the Palestinian Legislative Council (PLC): its rules of procedure, its position vis-à-vis human rights practices of the Palestinian Authority, the media and the civil society, as well as the legislative process, with particular regard to the elaboration of the Basic Law (below, under Section III).
II. The legal framework set up by the Israeli-Palestinian peace agreements
A. The status of the Palestinian Interim Self-Government Authority
6. The Declaration of principles on interim self-government arrangements (DOP) in Gaza and the West Bank, signed on 13 September 1993, in Washington, DC by the Israeli government and Yasser Arafat as the leader of the PLO, set out the framework and principles to govern Israeli-Palestinian relations during a five-year transitional period until the implementation of permanent status arrangements. It also defined the aim of Israeli-Palestinian negotiations as consisting, among other things, to the establishment of a Palestinian interim self-government authority, the elected Council, for the Palestinian people in the West Bank and the Gaza Strip, for a transitional period not exceeding five years, leading to a permanent settlement based on Security Council Resolutions 242 and 338.
7. The five-year transitional period started running from the signing of the agreement on the withdrawal of Israeli forces from the Gaza Strip and the Jericho area (the "Gaza-Jericho Agreement"), on 4 May 1996. The Gaza Jericho Agreement constituted the first stage of implementation of the DOP. It was followed by two further agreements providing for "early empowerment" arrangements throughout the West Bank (that is, not only the Jericho area) as a second stage of implementation of the DOP: the agreement on the Preparatory Transfer of Powers and Responsibilities (29 August 1994) and the Protocol on Further Transfer of Powers and Responsibilities (27 August 1995).
8. As foreseen in the DOP, an Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip was signed on 28 September 1995, in Washington, DC. The Interim Agreement, being the third stage of implementation of the DOP, provided for the establishment of an elected Palestinian Council and for the redeployment of Israeli forces throughout the West Bank, that is from all areas where redeployments had not yet taken place under earlier agreements. The latter were actually superseded by the Interim Agreement.
9. The nature of the regime provided by the Interim Agreement is that of a Palestinian autonomy in the West Bank and the Gaza Strip under the supreme authority of the Israeli military government. The Agreement set out all details for the direct election of the self-governing authority, the Palestinian Council, by the Palestinian people of West Bank, Jerusalem and the Gaza Strip.
10. Following the election of the Palestinian Council, on 20 January 1996, and its subsequent inauguration, on 7 March 1996, powers and responsibilities from the Israeli military government and its Civil Administration were transferred to the Palestinian Council, in accordance with the terms of the Interim Agreement. At the same time, the Israeli military government continues to exist and retains all necessary authority to exercise powers and responsibilities not transferred to the Palestinian Council.
11. In accordance with the Agreement, Israel, through its military government, has authority over areas that are not under the territorial jurisdiction of the Palestinian Council, powers and responsibilities not transferred to the latter (functional jurisdiction) and over Israelis (personal jurisdiction). To this end, the Israeli military government retains the necessary legislative, judicial and executive powers and responsibilities. One of the responsibilities which is explicitly retained by Israel is that of external security and external relations of the West Bank and Gaza Strip.
12. Moreover, residual powers are also vested with Israel (see Article I, pararaph 1 of the Agreement). Thus, if the Agreement is silent on the question of where a particular power vests, that power is retained by Israel. Both responsibility for external relations and possession of residual powers by Israel is indicative of the establishment of an autonomous Palestinian regime under the supreme authority of the Israeli military government.
13. In accordance with the DOP, the Interim Agreement provides for negotiations on permanent status to begin not later than the third year of the interim period, that is on 4 May 1996, and for permanent status arrangements to be implemented at the conclusion of the five-year transitional period. Among the issues left to be discussed at this stage are: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbours and other issues of common interest. The demand of the Palestinian people to establish an independent Palestinian state should be dealt with during these "permanent status" negotiations. The present Israeli government is clearly opposed to granting Palestinians a statehood. Whatever the conclusion of the negotiations may be on this question, it is clear that, pending their outcome and throughout the transitional period the status of the West Bank and Gaza Strip as defined by the Interim Agreement must be preserved. Both sides are prohibited from taking any unilateral step to change this status, such as by declaring an independent Palestinian state or annexing these areas to Israel. Finally, according to the Agreement, interim arrangements are not to prejudice the outcome of the permanent status negotiations. In particular, "neither party shall be deemed, by virtue of having entered into the [Interim] agreement, to have renounced or waived any of its existing rights, claims or positions" (Article V, paragraph 4 of the DOP and Article XXXI, paragraph 6 of the Interim Agreement).
B. Jurisdiction of the Palestinian Interim Self-Government Authority
14. The Interim Agreement defines the jurisdiction of the Palestinian Council in West Bank and Gaza Strip in accordance with three cumulative criteria: territorial, functional and personal.
a. Territorial jurisdiction
15. The territorial jurisdiction of the Palestinian Council is confined to those parts of the West Bank and the Gaza Strip in which powers and responsibilities have been transferred. Transfer of territorial authority to the Palestinian Council was completed in May 1994, immediately after the signing of the Gaza-Jericho Agreement, with regard to these areas. With regard to the rest of the West Bank (that is apart from Jericho), the transfer of territorial authority is to be effected in a series of stages along with the gradual redeployment of Israeli forces. Thus, the territorial jurisdiction of the Palestinian
Council is not static but will continue to expand throughout the process. At the conclusion of the process, the territorial jurisdiction of the Council will cover the whole territory of West Bank and Gaza Strip with the exception of Israeli settlements and military locations (issues to be discussed under the permanent status negotiations).
b. Functional jurisdiction
16. The functional jurisdiction of the Palestinian Council covers all powers and responsibilities transferred to the Council from the Israeli military government and its civil administration, according to the Interim Agreement. The latter specifies forty separate spheres of civil authority and provides for special arrangements of transfer of powers either unconditionally or subject to specified restrictions. Responsibility over areas not specified in the Interim Agreement is retained by Israel. The functional jurisdiction of the Palestinian Council generally only applies in areas placed under its territorial jurisdiction.
17. High sensitive spheres are those of authority over water resources and over religious sites. Special arrangements for transfer of authority in these spheres are made in the Agreement. Among the other spheres of civil authority transferred to the Palestinian Council is that of legal administration. The Agreement specifies that this sphere includes inter alia:
— administration, planning and management of the Palestinian judicial system and its different organs;
— appointment of judges;
— licensing and supervision of public notaries.
c. personal jurisdiction
18. The personal jurisdiction of the Council covers all persons present within its territorial jurisdiction, except for Israelis (that is, Israeli citizens, including Israeli statutory agencies and corporations) "unless provided otherwise" [Article XVII, paragraph 2.c]. Such "otherwise" provisions exist for Israelis conducting ongoing business within the territorial jurisdiction of the Palestinian Council who are thus subject to its civil jurisdiction. This jurisdiction does not, however, extend to criminal matters. Thus, an Israeli who conducts business in an area under the territorial jurisdiction of the Palestinian Council, must obtain all necessary business permits from the Palestinian Council and may be sued (for example, for breach of contract) in a Palestinian court. Nevertheless, he may not be tried in a Palestinian court if he or she commits a criminal offense, in which case the jurisdiction remains with the Israeli authorities.
C. Legislative powers
19. The Palestinian Council has both executive and legislative powers (see for distinctions the report of the Political Affairs Committee). The legislative powers of the Council cover both "primary and secondary legislation" (Article XVIII, paragraph 1 of the Interim Agreement), including laws, regulations and other legislative acts (for the elaboration of a Basic Law see below, Section III, E).
20. According to the Gaza-Jericho Agreement of 1994, the legislative powers of the Council were subject to an effective Israeli veto. This meant that all legislation had to be translated into Hebrew and submitted to the Israeli side for prior approval. Such a restraint proved impractical for both sides. Therefore, under the Interim Agreement, the Israeli veto was removed.
21. What is provided in the Interim Agreement is that the Council has the power to adopt legislation as long as that legislation does not exceed its jurisdiction (see above)
and is not otherwise inconsistent with the DOP and/or the Interim Agreement. Thus, the peace agreements acquire a quasi-constitutional status, in that laws must conform with their provisions. However, there is no judicial system for enforcing the agreements and presumably such enforcement would take place only by political means if necessary. In any case, the Interim Agreement provides that legislation which does not respect the above-mentioned conditions shall have no effect and shall be void ab initio. Moreover, a specific obligation is placed on the Ra'ees (President) of the Executive Authority of the Palestinian Council not to promulgate any legislation which fails to satisfy these requirements.
22. Finally, the Interim Agreement, while removing the possibility of an Israeli veto, establishes a mechanism for Israeli review of legislation adopted by the Palestinian Council regarding its jurisdictional limitations. A Joint Legal Committee is set up with an equal number of Israelis and Palestinians through which Israel and the Council cooperate on matters of legal assistance. All legislation adopted by the Palestinian Council must be communicated to the Israeli side of the Legal Committee (Article XVIII, paragraph 5 of the Interim Agreement). The Israeli side of the Legal Committee, in its turn, is empowered to refer to the full committee's review any legislation which it believes exceeds the scope of the Council's authority. The Joint Legal Committee is to reach its decisions by consensus and, if this is not possible, to appeal issues to a Monitoring and Steering Committee and/or a Joint Israeli-Palestinian Liaison Committee. Having met once or twice prior to the February-March bombings, the Legal Committee has not convened since that time. It is to be hoped that the recent reopening of dialogue between the two sides will allow the proper functioning of the Joint Legal Committee.
D. Judicial system
23. The Interim Agreement provides that the Palestinian Council shall have, within its jurisdiction, an independent judicial system composed of independent Palestinian courts and tribunals (Article IX, paragraph 6). The Agreement also provides for the establishment of a Palestinian Court of Justice with powers of judicial review. This court may review any act or decision of the Ra'ess or any member of the Executive Authority of the Council and decide whether such act or decision is ultra vires, or otherwise incorrect in law or procedure.
24. In the meeting of our committee's task force the Palestinian Minister of Justice, Mr Middein, said that the Palestinians wanted to apply the Anglo-Saxon model in establishing their judicial system: district courts, appeal courts and a (High) Court of Justice. He also noted that the problem in setting up Palestinian courts was mainly the absence of qualified judges. Low salaries discouraged Palestinian lawyers from becoming judges. Training of judges was one of the areas where the international community could greatly contribute. The report of the Political Affairs Committee has indeed included training of judges among the areas where the Council of Europe could contribute.
25. The setting up of Palestinian courts does not mean that existing courts of the Israeli military government will cease to function. It was already noted above that the Israeli military government continues in existence, retaining inter alia all its judicial powers and responsibilities not transferred to the Council. It follows that Israeli military courts may continue to function in the West Bank and Gaza Strip with jurisdiction over all offenses that are retained under the authority of the military government, that is primarily security offenses.
E. Human rights and the rule of law
26. According to the Interim Agreement, both Israelis and Palestinians undertake to exercise their powers and responsibilities with due regard to the principle of human rights and the rule of law. In addition, the Israeli security forces and the Palestinian police are required to carry out their functions and responsibilities while adhering to international norms, guided by the obligation to protect the public, respect human dignity and avoid harassment.
III. The Palestinian Legislative Council (PLC)
27. The PLC comprises 88 elected members. Since its inauguration, it has established its internal mechanisms. It elected its leadership, consisting of a Speaker, two Deputy Speakers and a Secretary General. It adopted its rules of procedure, formed committees and elected committee members.
28. In the six weeks which elapsed between its election and its inauguration, the PLC hardly had any sufficient time to establish its administrative infrastructure. The political decision to hold its meetings both in West Bank and Gaza Strip, further complicated the situation. There are hardly any adequate facilities for basic Council functions in both locations. In West Bank, the PLC uses temporarily the building of the Minister of Education in Ramallah. There are no offices for members, no permanent committee meeting rooms and only very limited space for the staff. Neither Gaza nor Ramallah has sufficient gallery space to accommodate press and the public.
A. The PLC's Rules of Procedure
29. When considering the rules of procedure, members showed a clear desire to ensure that the PLC function according to democratic rules. The draft submitted by the Ministry of Justice was substantially amended by the temporary Legal Committee and then in the plenary. The rules of procedure, as finally adopted on 21 March 1996, include several significant changes in the direction of strengthening the role of the Council, including mandatory committee consideration of draft laws and individual rather than collective approval of ministers (that is, members of the Executive Authority). They provide the basis for an independent and professional legislature.
30. Calendar and scheduling provisions of the rules of procedure give the PLC sufficient control over its own schedule. The PLC will meet in two regular sessions from February to June and from September to December. Extraordinary sessions can be called by the Executive Authority or by one quarter of the members.
31. A strong committee system is provided. Eleven committees have been set up. Reference to committee for consideration of draft laws is a mandatory stage in the legislative process. Moreover, committees have responsibilities of control over the executive and they can hold meetings open to the public. Ministers are allowed to attend committee meetings but they have not the right to vote.
32. Draft laws can be introduced by the Executive Authority or by one or more member. Draft laws are first considered in committee and then in plenary. In plenary, draft laws are reviewed in two separate readings. The question of whether a draft law can be vetoed by the Ra'ees is to be settled in the Basic Law. The rules of procedure mention simply that the draft laws approved by the PLC are forwarded to the Ra'ees for "assent and publication" [Article 66.c]. The draft Basic Law which has been considered in first reading by the PLC provides that the Ra'ees can refuse to promulgate a law and return it to the PLC within 30 days after its approval by the PLC. If the latter adopts it
again with a two-thirds majority the law "shall be considered ratified".
33. One uncommon feature of the rules of procedure is that there is no provision for roll call votes. Moreover, while the Rules provide for minutes to be published, it seems that no minutes have so far been made available.
34. A substantial section of the rules of procedure concerns the immunity of members. The immunity provisions cover not only statements and votes during PLC proceedings but also "any action taken outside the Council in the course of his or her function as a member of the Council" [Article 89.a]. The rules of procedure encompass immunity from all criminal charges (except for members apprehended in flagrante delicto) and protect members and their possessions and homes from being searched. The rules of procedure establish also the procedure for lifting a member's immunity.
35. On 10 April 1996, a heated discussion about the lifting of the immunity of four members took place between Ra'ees Arafat and several PLC members. The four members in question had issued a statement denouncing the Palestinian Authority for violating the human rights of Hamas prisoners. The Attorney General, upon the request of Ra'ees Arafat, sent a letter to the PLC asking that the immunity of those members be lifted because of defamation of the Palestinian Authority. The letter was seriously criticised and the PLC voted to send it back to the Ministry of Justice. No follow-up was given to the matter. The rapporteur finds that this incident is indicative of the determination of the PLC members to struggle for their independence vis-à-vis the executive.
B. The PLC and human rights practices of the Palestinian Authority
36. The rapporteur of the Political Affairs Committee has already discussed the problem of lack of clarity in the Interim Agreement with regard to the delimitation of powers between the legislative and the executive. What seems to be the aim of the PLC is to define this relationship in a way that would ensure its independence and authority. Separation of powers, accountability of the executive, respect of human rights and transparency were the key issues, according to the Chairman of the PLC's Political Committee.
37. The democratic legitimacy of the PLC makes its members feel that oversight of the executive is the purpose for which they were elected. On this topic, members of the Arafat-led Fatah party are no less eager than their no-Fatah colleagues. Need to oversee the Palestinian Authority human rights practices is a priority for the PLC.
38. Following the bombing attacks of February and March 1996, the Palestinian Authority has been criticised by human rights activists for massive arrests of Hamas suspects who, it was argued, were being tortured. The Authority was also accused for press censorship and restrictions on freedom of speech and assembly. Thus, Berzeit University and Human Rights Action Project issued a press release on 6 April 1996 calling the Palestinian Authority and the PLC to "take action without delay to protect the health and well-being of student Adeeb Muhammad Ziadeh", a 26-year old student arrested and held incommunicando for twenty-four days. On 18 April 1996, Al-Haq, a human rights organisation in Ramallah, asked the PLC to take up the cause of political prisoners held by the Palestinian Authority since late February and early March.
39. The Palestinian public in the West Bank and Gaza Strip have also protested against the police practices of the Palestinian Authority. What provoked a real public outcry was the arrest by the Palestinian Authority of more than 700 alleged Hamas and Islamic Jihad members, including university students. One thousand, five hundred students from four universities demonstrated in front of the Ramallah central prison to protest against the Palestinian Authority's raid of Al-Najah University on 30 March 1996. Demonstrations organised by momen were also held in Gaza Strip throughout April demanding the release of prisoners.
40. According to press reports, PLC members had joined the women during the Gaza demonstrations. The Chairman of the Human Rights and Oversight Committee, Mr Abdul Jawad Saleh, was reported to have said that he was working on a bill to prevent arrests without official warrants. He said citizens should not be kept for long periods of time without any charge. Four members of the PLC criticised the Palestinian Authority for having tortured Hamas prisoners in Palestinian jails (see above for the request to lift their immunity which finally failed).
41. Early May 1996, the PLC called for the release of all student prisoners to allow them to participate in exams. They also called for the release of all prisoners who had not been charged. Upon their request, the Minister of Justice provided them with a list of all prisoners with the dates of their arrest in early June. Release of prisoners had been the subject of heated debates before the PLC throughout the summer months.
42. The death of Mahmoud Jumayil, the seventh Palestinian who died while in detention in Palestinian prisons, on 30 July 1996, prompted the setting up by the PLC of an ad hoc committee to support and follow up the investigating committee which the executive had already created.
43. The rapporteur recalls that the issue of human rights abuses was raised also during the meeting of our committee's task force. The Minister of Justice himself had admitted that the overcrowding of Palestinian prisons was a real problem. He had said that the Palestinian penitentiary system was going through a dark period due to lack of finance. Moreover, Mr Shtayyed, Director of the Palestinian Council for reconstruction and Development, had noticed that after the Hamas bombing attacks of late February-early March 1996, "the Palestinian Authority was confronted with a dilemma: in order to advance the peace process with the Israelis the Palestinian authority should proceed with passive arrests of suspects of terrorist attacks etc. to show its efficiency and determination in combatting terrorism and crime in general and thus responding to Israeli security concerns. But often such arrests were made in violation of human rights standards".
44. The rapporteur understands the difficulties the Palestinian Authority is facing. Nevertheless, the protection of the peace process could not justify any derogation from international human rights standards. The Palestinian Authority should pursue its efforts in combatting terrorism while respecting such standards.
45. The rapporteur further notes that the PLC has so far shown its eagerness in checking up the executive with regard to human rights abuses. Oversight of the executive by the PLC -a directly elected legislative body - is probably the best guarantee against human rights abuses by the executive at this stage, when the Palestinian judicial system is still to be set up. This is why the PLC must be encouraged and strengthened in its activities by both our Assembly and our national parliaments.
C. The PLC and the media
46. A critical problem facing the PLC is that media coverage is inadequate to inform Palestinians of its activities. The Palestinian Broadcast Corporation (radio and television), controlled by the Palestinian authority, has not paid enough attention to the activities of the new, potentially independent, legislative body. As to the written press, it seems to be intimated by the Palestinian Authority which has conducted a series of arrests of journalists. Therefore, Palestinian journalists were reluctant to cover debates in the PLC
which often led to serious challenges to Ra'ees Arafat's authority. Moreover, PLC sessions have often been closed to the public and the press, although according to the Interim Agreement and its own rules of procedure, sessions are open to the public. The Palestinian Authority security forces have reportedly used force in expelling journalists from PLC sessions.
47. The problems with regard to freedom of the press in the Palestinian Authority territories predate the PLC's inauguration. International observers had noted such problems in particular during the pre-electoral period. In December 1995, security forces had arrested the editor of Al-Quds, the Arab language newspaper with the largest circulation in the territories. Distribution of this newspaper has been blocked by security forces in several occasions.
48. The Press Law of 1995 is at the origin of the problems journalists are facing. The law "strictly prohibits": the publishing of any secret information about police and security forces; materials harmful to religion "and doctrines guaranteed by law"; articles which "may cause harm to national unity or incite to committing crimes or planting seeds of hatred, dissension and disunity, or instigate hostilities among the members of society" (Article 37 of the Press Law). Its numerous prohibitions include: "news, reports, letters, editorials, and pictures inconsistent with morals". The penalties for violating Article 37 of the Press Law include seizure and confiscation of all printed copies, temporary suspension of the perpetrator's media for a specified period not exceeding three months (Article 47). In addition, the law imposes a fine not exceeding 1 000 Jordanian dinars (approximately US$ 1 357) or one month imprisonment or both.
49. The rapporteur shares the concerns of the Palestinian journalists who think that such a restrictive law must urgently be repealed. Freedom of the press, as freedom of speech in general, is a fundamental human right, without the respect of which one can hardly speak about democracy. Moreover, unless journalists stop feeling intimidated, press coverage of the PLC activities will remain poor. A positive sign has been the installation of a closed circuit television to allow journalists to follow the proceedings.
D. The PLC and the civil society
50. Although the Interim Agreement and the rules of procedure provide for public sessions and publication of minutes, information about the PLC is still very difficult to obtain. Not all sessions have been open to the public, and when open, very few visitors can attend because of space limitations. Since press coverage is poor, Palestinians are thus unaware of the PLC's activities and the important steps towards institutional independence it has already taken.
51. Given the lack of publicity for the PLC activities by the media, the role NGOs can play in this field is important. Some NGOs have already started working with the PLC. PLC members had consulted with the human rights organisation Al-Haq on the drafting of the rules of procedure. The Palestinian Centre for Peace and Democracy has developed a plan for constituency-level discussions with members.
52. Given the extensive network of Palestinian NGOs, the rapporteur considers that the PLC has not yet gained a central place in their activities. Such a development should be encouraged since it could probably be the only means for increasing public awareness of the PLC achievements.
E. The legislative process: the elaboration of the Basic Law
53. As was stressed during the meeting of our committee's task force, a great challenge for the newly-elected PLC is the establishment of a unified legal system in West Bank and Gaza Strip to replace the existing mixture of Egyptian, Jordanian, British, Ottoman and Israeli laws.
54. The elaboration and adoption of the Basic Law has been the main concern of the PLC after adoption of its rules of procedure. For the rest, its legislative priorities include the law on local self-government and local elections, the law on non-governmental organisations and the law on the operation of security forces. According to information the rapporteur had, the law on local self-government and local elections has been considered in first reading in mid-September before the PLC's recess.
55. The Basic Law is according to the Interim Agreement the act that will regulate the organisation, structure and functioning of the Palestinian Interim Self-Government Authority. In July, the PLC started considering in plenary the (seventh) draft prepared by the Legal Committee of the Palestinian National Council (PNC) and substantially amended by the Legal Committee of the PLC. The European Commission for Democracy through Law ("Venice Commission"), which has already participated in the task force of our committee, has been requested to give an expert opinion on the draft Basic Law or, in its present denomination, "Temporary Constitutional Law for the Palestinian National Authority in the transitional period".
56. The rapporteur participated in the meeting of the Venice Commission on 13 and 14 September 1996 during which a text prepared by the Secretariat on the basis of contributions by MM. Economides, Helgesen and Robert was discussed. The Venice Commission did not finally adopt its opinion, but decided to transmit its comments for use for the Assembly debate. These comments appear in Appendix II.
57. The rapporteur shares the fears expressed by the experts of the Venice Commission, in particular with regard to the role of Sharia law which is announced to be the main source of law, the declaration of Jerusalem as "the capital of Palestine" and the problems related to the criteria for granting Palestinian citizenship. According to up-dated information, these three issues have raised serious objections within the PLC itself.
58. The PLC completed its consideration in first reading of the draft Basic Law by mid-September, with the exception of the first chapter ("Palestine and the Governmental System") which contains all these contested issues. Another problematic aspect of the draft Basic Law was its seventh chapter on "the state of emergency provisions". The rapporteur is satisfied that this chapter was voted down by the PLC (17 to 11 votes).
59. Next month, the PLC will have to consider the draft law in second reading. It should also consider another draft that is expected to be submitted by the Executive Authority. The PLC has not yet decided how it will reconcile the two drafts if there are any major differences. It can in general be said that the PLC seems to be in a hurry not shared by the Executive Authority in adopting the Basic Law which should strengthen the PLC's independence vis-à-vis the executive.
60. The rapporteur recalls the interim character of the present self-government arrangements in the Palestinian Authority territories. A number of crucial issues are still to be settled in the framework of negotiations on permanent status which should have commenced in May 1996 in order to be completed within three years. He thus fully supports the text of the draft resolution, adopted by the Political Affairs Committee, which calls for an early resumption of permanent status negotiations. The Israeli-Palestinian peace process must move forward.
61. The rapporteur further shares the opinion that a new democracy is being born in the Palestinian Authority territories. The Palestinian Legislative Council in the few months of its existence clearly showed its willingness to build up its independence vis-à-vis the executive.
62. Control over the executive with regard to human rights abuses is an essential role which the PLC, enjoying democratic legitimacy, can offer. Freedom of the press must be guaranteed in order to allow inter alia greater press coverage of the activities of the PLC and thus insure public awareness. The Press Law of 1995 must be repealed and replaced by legislation compatible with international standards of human rights.
63. The adoption of the Basic Law, a kind of constitution for the interim period, will solve a number of issues which remain open at this moment, including protection of fundamental freedoms. It is worth noting that the PLC's concerns for freedom of press were at the origin of a separate chapter entitled "Press Authority" in the draft Basic Law considered by the PLC, which has now been incorporated in the second chapter on human rights and fundamental freedoms.
64. The rapporteur will transmit to the PLC the opinion of the Venice Commission on the draft Basic Law after its final adoption. Nevertheless, he finds that the comments already made by the experts should be immediately communicated to the PLC so that members could still take them into account when considering the draft Basic Law in second reading. The rapporteur expresses his satisfaction that the plenary of the PLC has not approved the provisions giving Sharia a predominant role as a source of law or those about Jerusalem and Palestinian citizenship. He hopes that the remarks made by the experts of the Venice Commission could help the PLC members in deciding on these issues. He will closely follow developments in this field and report back to the committee.
65. The rapporteur had communicated to the rapporteur of the Political Affairs Committee the areas of Council of Europe contribution which had been identified during the meeting of the task force of our committee which are thus already part of the draft resolution adopted by the Political Affairs Committee. They include:
— human rights education programmes and human rights and democracy seminars;
— advice to the Palestinian Legislative Council in the drafting of legislation and of the Basic Law;
— training of judges, lawyers and law enforcement officers.
66. A question which the rapporteur would like to add after having studied the relevant material is the training of staff members of the Palestinian Legislative Council and of the Palestinian Authority. It is a field in which the Parliamentary Assembly itself can contribute offering, for instance, training courses to members of the staff of the PLC. Such a contribution could be essential since it could address the problem of lack of experience members of the staff are facing. Therefore, the rapporteur proposes an amendment in this respect.
Amendment to the draft resolution on the situation in the Middle East:
the Israeli-Palestinian peace process
presented by the Political Affairs Committee
to be tabled by Mr NEMETH (Hungary, LDR), rapporteur for contribution, on behalf of the Committee on Legal Affairs and Human Rights
Amendment No. 1
In the draft resolution, paragraph 10.iv.f, after the words "law enforcement officers" add the following words:
", as well as of members of the staff of the Palestinian Legislative Council and of the Palestinian Authority."
List of members of the task force
Members of the ad hoc sub-committee
Mr Fenech, Chairperson (Malta)
Mrs Gelderblom-Lankhout, Vice-Chairperson (Netherlands)
MM. Alexander (United Kingdom)
Mrs Err (Luxembourg)
MM. Frunda (Romania)
Solé Tura (Spain)
Hagård (Sweden), Chairperson of the Committee on Legal Affairs and Human Rights (ex officio)
. Mr Daniel Taub, Assistant/Legal Advisor, Ministry of Foreign Affairs
. Ambassador Joseph Amihoud, in charge of relations with the Council of Europe
. Mr Freih Abu Middain, Minister of Justice
. Mr Abdullah Abdullah, Member of the Palestinian National Council
. Mr Mohamed Shtayyeh, Member of the Palestinian Council for Reconstruction and Development and Secretary General of the Central Electoral Commission
. Mrs Leïla Shahid, General Delegate in France
. Mr Saadedine Zmerli, Vice-President of the International Federation of Human Rights, Council of Europe North-South Centre
. Mr Roger-Vincent Calatayud, Adviser at the Human Rights Programme of the Council of Europe North-South Centre
. Mr Jacques Robert, Honorary President of the Paris University of Law, Economic and Social Science, Member of the Constitutional Council and Chairman of the Sub-Committee on the Mediterranean Basin of the European Commission for Democracy through Law
. Mr Egil Nærum, Legal Adviser, Ministry of Justice of Norway
Strasbourg, 13 September 1996 CDL (96) 66
No. 018/96 Or. Fr.
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
PRELIMINARY COMMENTS ON THE DRAFT TEMPORARY CONSTITUTIONAL LAW FOR THE PALESTINIAN NATIONAL AUTHORITY IN THE TRANSITIONAL PERIOD
on the basis of observations by C. Economides (Greece), J. Helgesen (Norway) and J. Robert (France)
The present opinion, given within the framework of the Venice Commission's participation in the work of the task force on human rights and the judicial system in the autonomous Palestinian territories of the Parliamentary Assembly of the Council of Europe, relates to the 7th draft of the constitutional law for the Palestinian national authority prepared by the Legal Committee of the Palestinian Legislative Council (PLC) on 9 July 1996 (document CDL (96) 61).
The Commission is aware of the fact that this constitutional law is still under consideration and that it is possible that other drafts be prepared during the discussion before the Palestinian Legislative Council. Under these circumstances, the Commission's observations will be limited to the main points of the project. Moreover, one should note that the Commission has not considered the compatibility of the present project with the Israeli-Palestinian Agreements of 13 September 1993 and 4 May 1994. The text of the draft has been examined as it stands, having regard to its nature as a basic law for Palestine.
First of all, the Commission finds, that the draft temporary constitutional law for the Palestinian national authority in the transitional period is a modern constitutional text very closely based on democratic principles.
The following comments should be made with regard to the text:
While it is entirely normal that in its first article the constitutional text indicates that Palestine is a part of the Arab world and that the Palestinian people are part of the Arab nation (a statement which generally appears in several Arab Constitutions, in particular in the countries of the Maghreb), it is surprising that Article 3 states without hesitation that "Jerusalem is the capital of Palestine". This city is not part of the Palestinian territories and its status, if it had to be modified, should be the object of very delicate diplomatic negotiations.
The fact that Islam is proclaimed the official religion in Palestine does not raise problems as such. Several legal systems in Europe recognise official religions and State churches without it being in conflict with international standards of protection of human rights and in particular with the European Convention on Human Rights (ECHR). Actually, since emphasis is given to freedom of conscience and religion, the only question which must be put is whether, notwithstanding the existence of an official religion, any individual enjoys freedom of conscience and religion. In this respect the provision of Article 5 must be read in conjunction with the guarantee of freedom of religion set out in Article 22 (see also infra). Consequently, no problem of conformity with international standards of protection of fundamental rights may arise at the level of constitutional law. It is in the implementation of these two provisions through legislation that problems may appear (for example, religious education in public schools; right to be exempted from State church taxes).
Secondly, it is questionable, or even dangerous, to set out explicitly that the principle of Islamic Sharia is the main source of legislation in Palestine. The terms used are also ambiguous. Do they mean that the principles of the Sharia are as such the basis of the law in Palestine or do they simply mean that these principles should inspire the Palestinian legislator?
In the first case it would be difficult to determine exactly which are the principles and what is their precise signification. The Sharia being at the same time theological and jurisprudential, this task would obviously be uneasy and the results uncertain.
Moreover, it would come within the competence of the High Constitutional Court to examine whether a law challenged before it is in conformity with the principles of the Sharia or not. However, the court which is competent to interpret constitutional texts will probably be unable to interpret holy texts which seem to have a "supra-constitutional" value.
One may add that it should be asserted that the principles of the Sharia are not in conflict with the principles, fundamental rights, public liberties and duties of the citizens set out in chapter II (Articles 11 to 39) of the constitutional law of Palestine. In case of conflict what should the Palestinian legislator do? Apply the Sharia or respect the principles of the constitutional law?
Article 9 states that Palestinians are Arab citizens who were normally resident in Palestine until 1947 and that the children of Palestinian parents are considered Palestinians.
Several questions arise:
a. about those Arabs who claim themselves to be Palestinians although they were never in Palestine during the above period?
b. what about the Palestinian diaspora all over the world?
c. must one necessarily be Arab to be Palestinian, or even Muslim?
This provision states that Palestine will recognise the fundamental rights of the individual which are enshrined in international law and that the Palestinian authority shall work to become party to these international treaties and agreements. The Commission welcomes this provision.
It nevertheless notes that contrary to the recent tendency in the new Constitutions of European states no provision of the draft gives international instruments for the protection of human rights precedence over internal Palestinian law.
This provision allows restrictions to personal liberty in accordance with the law. The basic law as such simply states that arrest and detention of a person are allowed in the case of flagrante delicto.
This constitutional guarantee appears insufficient. It is preferable that the Constitution itself lists in an exhaustive way the reasons for which deprivation of liberty is allowed. The legislator will then have to determine on the basis of the Constitution the modalities and the procedure in accordance with which this deprivation of liberty can be decided.
In addition to torture and inhuman treatment, this provision should also prohibit inhuman and degrading punishment.
Articles 19 and 21
The previous remark is also valid for the provisions whereby restrictions to the right to respect for home, correspondence and private life are permitted when they are in accordance with the provisions of law. In fact, granting the legislator discretionary power to restrict the exercise of human rights appears contrary to international standards. The Constitution should limit the power of the legislator. The latter must not be able to restrict the exercise of fundamental freedoms unless this restriction is necessary in a democratic society and pursues one of the aims which the Constitution recognises as legitimate (cf. the wording in Article 23 of the draft).
It is stated in this provision that the performance of religious rituals is guaranteed "in accordance with the customs in Palestine". This is unclear and does not seem necessary since in the same provision it is stated that the exercise of this right should not violate public order and public morals. This reservation as to protection of public order and public morals is sufficient as regards international standards. However, if a reference to customs is maintained in this provision it would be at least useful to precise its scope.
This provision, according to which the right to address to public authorities on behalf of groups is allowed only for "estimable individuals" appears to be unclear and may raise problems.
Right to marry
The right to marry and to create a family should be included in the rights set out in Chapter 2 of the Constitution.
It is indicated in Article 45 that the Council shall elect a President, two deputies and a Secretary General. It would be useful if the Constitution made clear what would be the powers conferred on the two deputies.
In Article 72, it is provided that the President can refuse to promulgate a law that has already been approved by the Council but the Council can veto this refusal if it passes the same text again with a majority of two-thirds.
It is not indicated in the text whether those two-thirds apply to members voting or to all members of the Council. In other words, should the Council pass again the text with the two-thirds majority of its 88 members in order to override the presidential veto or does a mere majority of two-thirds of the members present at the time of the vote suffice for this purpose? A clarification is necessary on this point.
Article 76 is rather incomplete. What are the competences of the "personal deputy" that the President can appoint and present to the Legislative Council for approval?
The same article (b) allows the President to delegate some of his powers at his discretion to any one of his "assistants" he chooses. How are those assistants designated? Are they mere collaborators, members of the Council, or members of the government?
Article 90 states that the President or ten members of the Council can request a vote of confidence for the Cabinet before the Council. A vote of no confidence requires an absolute majority. It is not indicated whether the required majority is a majority of the members present or one of all members of the Council.
In case of no confidence, the Prime Minister must submit his resignation to the President.
Article 90 says nothing on the possibilities for the President to revoke, on his own initiative, even without any vote of no confidence. However, such a possibility should exist if one refers to Article 87 which clearly indicates that ministers are responsible to the President and the Legislative Council for the general policy of the country.
Finally, the provisional constitutional law does not mention any right for the President to dissolve the Council. However, Article 6 of the text clearly states that the government of Palestine "shall be based on parliamentary democracy". And it is well-known that the right to dissolve the Parliament as a counterpart of the responsibility of the government is one of the characteristic features of parliamentarian regime.
This Article provides that the Court rulings shall be promulgated in accordance with the law, the Islamic Sharia's principles and the principles of justice. It might be useful to mention that they must also be promulgated in accordance with the Constitution.
This provision guarantees the freedom of press and excludes any measure of censorship by an administrative act. It follows that the Constitution does not prevent censorship measures being taken by means of Court decisions. In this case it is necessary that the Constitution sets out the principles that would make the framework within which these measures restricting the freedom of press could be taken (see above the observations under Articles 13, 19 and 21).
The following remarks should be made as regards these articles which concern the state of emergency:
The competences of the Legislative Council in the declaration of the state of emergency must be further clarified. It seems useful to grant more competences in this field to the body representing the people.
The Constitution could provide that details concerning the declaration of the state of emergency be regulated by special law.
Article 129 allows restrictions to all fundamental rights in case of declaration of the state of emergency (provided that these measures or limitations are necessary). However, it is generally admitted that several individual rights cannot suffer any restriction even in a case of emergency (cf. Article 15 ECHR).
Reporting committee: Political Affairs Committee (Doc. 7636).
This contribution was approved by the Committee on Legal Affairs and Human Rights on 23 September 1996.
Secretaries to the committee: Mr Plate, Ms Chatzivassiliou, Ms Kleinsorge and Ms Clamer.
 By the Committee on Legal Affairs and Human Rights.
 See Doc. 7636.
. The Rapporteur wishes to clarify that the term "Palestinian Legislative Council" does not appear in the Interim Agreement which refers simply to a "Palestinian Council". Nevertheless, as the Rapporteur of the Political Affairs Committee has also noted, the Agreement uses the term "Palestinian Council" or "Council" to refer both to the Interim self-governing body that includes executive, legislative and judicial powers, and the legislative branch of that body. In order to avoid confusion, the term "Palestinian Legislative Council" is used in practice to denominate the legislative branch of the Palestinian interim self-government authority. It is thus also used in this sense by the Rapporteur.
See Doc. 7636, under III, B, 3, paragraphs 146-149.
. The group said that prisoners hade been held without official arrest warrants and with no guarantees that their rights were protected. Al Haq further noted that while no cases of torture had been recorded, prison conditions were not good and prisoners had to rely on families for covers, food and hygiene products (An-Nahar, 19 April 1996; JMCC Daily Press Summary).
. The PLC has particularly insisted on the release of Dr Iyad Sarraj, Commissioner of the Independent Commission for Citizens Rights, a well-known psychiatrist who had set up a health organisation in support of Palestinians who had been detained in Israeli prisons.
. See the minutes of the meeting of the task force, document AS/Jur/Ad Hoc ME (1996) PV 2, pp. 6-7.
. Paragraph 4, Doc. 7636
. Paragraph 155, explanatory memorandum, Doc. 7636.
. See in the draft resolution, paragraph 10 (iv), b, c, e and f.