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Palestinian law

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Palestinian law is the law administered by the Palestinian National Authority within the territory pursuant to the Oslo Accords. It has an unusually unsettled status, as of 2021, due to the complex legal history of the area. Palestinian law includes many of the legal regimes and precepts used in Palestinian ruled territory and administered by the Palestinian Authority (West Bank areas A and B) and Hamas (Gaza Strip), which is not an independent nation-state.

The scope of this article is to explain the legal history, context and development of law, the current fields of study of law in Palestinian ruled territory, as well as the state of lawlessness in those territories. It is also to discuss the domestic and international positions on which set of laws are controlling in Palestinian ruled territory today.

Terminology

Due to the changing usages of the terms "Palestine" and "Palestinian" throughout history, the term may also be associated with regimes that are not associated with the Palestinian law of today. Examples include the discussion (in a reference work dating from 1906) of the Talmudic interpretation of laws from Palestine before 70 AD, also known as Halakha: "Those of the laws of Palestine that were extended after the Exile were originally enacted for the purpose of protecting the judicial administration and economic interests of Palestine, and with a view to encourage settlement there."[1] Such references to ancient Palestinian law do not apply to the Palestinian legal situation since at least 1948.

Jurisdictional background

Essentially, says one legal scholar, "the legal system in 'Palestine' consists of layer upon layer of law that almost all remain in effect."[2] The major issue is the:

question of whether the emerging state of Palestine will be capable of overseeing a system of rule of law. This debate is important not only in the political arena but in the legal arena as well, since a viable state must have a legal system that is functional and reliable. Despite the historically deteriorated condition of the Gazan and West Bank legal systems under occupation, the Palestinians recently have sought to seize the opportunity to determine the fate of their own legal heritage. To determine how this may be possible, we must look at what laws currently exist in the Palestinian territories. The law applied in different parts of the West Bank and Gaza strip is a combination of the various laws imposed on said areas throughout this century. Instead of each new law superseding the previous law, almost all of these laws remain in effect in the territories. Therefore, one would have to research multiple legal systems and codes to determine the law in one area. This is quite a confusing situation. The Palestinian legal system can be compared to a tossed salad, with layers of different laws and systems all mixed up into a confused mess. This situation in the Palestinian Territories is perhaps unprecedented in modern history.

— [2]

The laws that applied come from many jurisdictions through history: "Customary Law ... Ottoman Law ... British Law ... Jordanian Law ... Egyptian Law ... Israeli" law and even the informal strictures of the intifada, and finally, the Palestinian National Authority's Basic law.[2]

The subject of sovereignty is both controversial and unsettled; "neither the PLO nor the PA is recognized as a sovereign state by the United States.[3]

Basic Law

The Basic law, established in 2002, is the proposed constitution of a future Palestinian state.[4] According to one report, "Palestinians had been requesting that the law be signed into effect since 1997, in order to formally guarantee a modicum of basic rights."[4] It was enacted by the PLC (the Legislature of PNA) and signed by Yasser Arafat.[4][5] It was amended on March 19, 2003 "to allow the creation of the Prime Minister Position in the Palestinian National Authority...."[6]

The Basic Law is based loosely on Shari'a:

According to Article 4:

  1. Islam is the official religion in Palestine. Respect and sanctity of all other heavenly religions shall be maintained.
  2. The principles of Islamic Shari'a shall be the main source of legislation.
  3. Arabic shall be the official language.
    — Mideastweb.org[4]

The Basic Law is introduced with "In The Name of God, The Merciful, The Compassionate",[6] as are most documents in Islamic countries.[citation needed]

Articles of the Basic Law

With 121 articles, it is more akin to a state constitution in comprehensiveness, detail and length.

The "bill of rights" Articles of the Basic Law, as amended March 19, 2003, cover the following topics:

  1. "Palestine is part of the large[r] Arab World ... ."[6]
  2. "The People is the source of power" and the three branches of government enshrines "the principle of separation of powers".[6]
  3. States that "Jerusalem is the Capital of Palestine."[6]
  4. Islamic law is the basis, and Arabic is the official language, of Palestine
  5. Creates "a democratic parliamentary system based on political and party pluralism" and a popularly elected President
  6. Recognizes the "principle of the rule of law".[6]
  7. Regulates citizenship
  8. Defines the official flag
  9. Protects against "discrimination because of race, sex, color, religion, political views, or disability".[6]
  10. Protection of human rights
  11. Protection of freedom and procedural due process
  12. Rights to "be informed of the reasons for his arrest or detention",[6] to contact an attorney, and a speedy trial (Miranda rights)
  13. No duress, torture or forced confessions
  14. Rights to be "innocent until proven guilty",[6] to a defense, and to a lawyer for defense
  15. Crime and punishment defined by law
  16. Right to bodily integrity
  17. Prohibition of searches except by lawful order
  18. Freedom of private religious practice. "Freedom of belief, worship, and performance of religious rituals are guaranteed, provided that they do not violate public order or public morals."[6]
  19. Freedom of expression
  20. Freedom of movement
  21. Creation of a free market economy and prohibition against taking without fair compensation
  22. Insurance for health, disability, retirement, "welfare of families of martyrs’", and prisoners of war[6]
  23. Right to housing
  24. Right to an education

Statutes and legislation

There is some confusion amongst jurists, scholars and laymen about exactly what legal regime exists, and which laws apply, in Palestinian ruled territory.

Mahdi Abdul Hadi, a legal scholar, believes that all prior and current law continues to apply in the Palestinian territories, including "the British Mandate laws, the Jordanian laws that used to govern the West Bank before 1967 and the Egyptian law that governed Gaza Strip before 1967, in addition to the Israeli military orders."[2][7] According to Abdul Hadi, the first step was the organization of "Palestinian civil society", that is, a traditional law, "then came the Madrid Conference and the Oslo Accords which drafted laws to govern the Palestinian political life for the interim period."[7] Following that, "the general elections in 1996 ... brought about the Palestinian Legislative Council as the legislative body of the Palestinian people in the Palestinian lands."[7]

Ottoman law has governed Palestine since 1517, and the Ottoman Land Code of 1858 is still in force, one of the causes of international controversy over land seizures.[2][8] The Ottoman statutory "codification mirrored Islamic law but also incorporated elements of European law, especially the law of France."[2]

Judicial and customary law

Main article: Urf

Islamic customary law applies in Palestinian ruled territory:

Alongside every formal legal system in Palestinian history, there existed a system of customary law known as "Urf", which means “that which is known” in Arabic. This was a system of rules outside the court system, which handles disputes based on traditional oral customs.

— [2]

The term urf, meaning "to know", refers to the customs and practices of a given society. Although this was not formally included in Islamic law,[9] the Sharia recognizes customs that prevailed at the time of Muhammad but were not abrogated by the Qur'an or the tradition (this is called "Divine silence"). Practices later innovated are also justified, since Islamic tradition says what the people, in general, consider good is also considered as such by God. Urf is the Islamic equivalent of "common law".[10]

In the application of urf, custom that is accepted into law should be commonly prevalent in the region, not merely in an isolated locality; jurists also tend, with caution, to give precedence to custom over doctoral opinions of highly esteemed scholars.[10]

Criminal law

See also: Palestinian_National_Authority § Crime_and_law_enforcement

For the most part, crimes and violent acts are considered crimes of violence and fall under the purview of the criminal justice system. The Palestinian Authority operates under its own criminal law, such as its Penal Code. In addition, "the Palestinian Authority also imposes the death penalty pursuant to the PLO Revolutionary Penal Code, of 1979." The PNA utilizes both military and special, state security courts for most death penalty cases.[11]

Civil law

Civil law used the customary law in Palestine: "Urf covered disputes such as contracts, family disputes, personal injury, and land matters."[2]

Participatory justice

Through the use of urf, Palestinians use alternative dispute resolution, specifically forms of participatory justice: "This system stressed conciliation, mediation, and family honour."[2]

Palestinian Land Law

Main article: Palestinian Land Law

The Palestinian Land Law is a law that prohibits Palestinians from selling land to Jewish citizens of Israel. The punishment for violators is the death penalty.[12]

See also

References

  1. ^ Jewish Encyclopedia online from 1906. Accessed July 24, 2008.
  2. ^ a b c d e f g h i Wadi Fouad Muhaisen, The Palestinian Legal System (essay, 2003), found at The Palestinian Legal System at Yap.com website Archived 2017-04-20 at the Wayback Machine. Accessed July 31, 2008
  3. ^ Ferstendig, David L. (October 2016). "Second Circuit Dismisses Action Against Palestinian Liberation Organization and Palestinian Authority Under Anti-Terrorist Act: Court finds there to be no general jurisdiction under Daimler". New York State Law Digest (671). New York State Bar Association: 1., citing Waldman v. PLO, 2016 U.S. App. LEXIS 16089 (2d Cir. Aug. 31, 2016) and Daimler AG v. Bauman, 134 S.Ct. 746 (2014).
  4. ^ a b c d Mideastweb website.
  5. ^ It is not entirely clear that Chairman Arafat's signature was required.
  6. ^ a b c d e f g h i j k Amended Basic Law, found at USAID government law website English translation Archived 2008-08-01 at the Wayback Machine. Accessed July 24, 2008.
  7. ^ a b c Seminar summary notes, The Party Law in Palestine (Summary of the Seminar organized by PASSIA at Best Eastern Hotel in Ramallah on Political Parties Law and the upcoming PLC elections), found at Passia.org website Archived 2016-09-21 at the Wayback Machine. Accessed July 29, 2008.
  8. ^ Shehadeh, Raja (1982). "The Land Law of Palestine: An Analysis of the Definition of State Lands". Journal of Palestine Studies. 11 (2): 82–99. doi:10.2307/2536271. JSTOR 2536271.
  9. ^ "Urf", Encyclopaedia of Islam
  10. ^ a b Hasan (2004), p. 169-71
  11. ^ Death Penalty in the PA B'Tselem
  12. ^ Weiner, Reid Weiner (2005). Human rights of Christians in Palestinian society. Jerusalem Center for Public Affairs. p. 13. ISBN 965-218-048-3.
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