Further deterioration at level of separation of powers in areas under Palestinian control continued to determinate in 2014; with the continued halt of the legislative and oversight role of the legislative council, predominance of the executive branch, and defacing of the legal system through excessive issuance of unconstitutional decisions that further the grip of the executive branch. Such are manifested in; the continuation of cases of arbitrary detention (with repeated complaints of deaths resulting from torture), extrajudicial killings (by way of chaos, misuse of weapons, or neglect of safety procedures), and the adoption of new forms of assault on; freedom of expression, peaceful assembly, and freedom of the press.
Political detention by the PA arose as a result of the Political rift in 2007. Soon after, Presidential Decree 28/2007 issued in July of 2007, which froze and took the place of Article 101 of the Palestinian Basic Law, gave the military prosecution the authorities of the civil prosecution. Additionally intelligence forces (among other military bodies) were given the authority to arrest civilians. Moreover, the main functions of the Criminal Pinal Code was halted. The Decree likewise did not frame itself within a bound timeframe (as is required by the emergency nature of President Decrees); thus in it of itself it served to violate the law.
Moreover, the procedures followed by these bodies (i.e. intelligence, national security, etc.) were no longer those explicitly described in the Criminal Pinal Code, but were based on the emergency regulations of the Revolutionary Criminal Procedures Law of 1979 utilized by the PLO while operating in various host countries. In the aftermath of this decree, hundreds of civilians began to be detained on political grounds by military forces for having expressed conflicting political views or affiliation, or just the suspicion of such. The arrests were done in a manner in violation to the law in terms of the bodies conducting the arrests, the procedures undertaken, and the courts the victims were subjected to. Arrests were carried out without declared reasons for arrests and victims were denied legal counsel; leaving it up to the victims’ families to give over power of attorney. Moreover, many accounts of torture were documented since this lapse in protocol.
JLAC, witnessing these grave violations committed by the PA on many levels (both in terms of legislation and procedures) and was prompted to intervene by adopting individual cases of political detention. JLAC requested the immediate release of the beneficiaries, on the grounds that their detainment was done illegally. Such was often met with the prosecution responding that the presidential Decree has cancelled the Constitutional Law in question. The significant problem faced by JLAC, however, was when the High Court concluded that it is not specialized to rule in this regard, without referring the case, leaving detainees without any avenue in seeking due process and being released. JLAC (in coalition with other human rights NGOs) persuaded the High Court to form an alternate committee to examine the pending cases, to which favorable rulings were made.
Though today detainment procedures are still being carried out in violation to the law, detainees have become to be subjected to civil court instead, as though now persons holding opposing political views are criminals. JLAC continues to intervene in political prisoners’ regard against the illegality of the detainment procedures followed. Cases tend to end with the defendant being released on bail, an indicator that there was never any real evidence against them.
Over the course of the past 5 years, JLAC undertook 90 cases of political detention, 78 of which were positively closed.
The political rift of 2007 between Hamas and the PA brought with it the immediate dismissal of hundreds of governmental employees, though they were legally recruited and contracted by creating a new procedure called “security clearance” which involved obtaining a recommendation from all of the PA’s security bodies in the appointment of any governmental employee. Such was immediately followed with a number of discharged employees approaching JLAC for legal aid. JLAC began to undertake their cases, focusing on staffers employed by the ministries of health and of education. JLAC filed administrative lawsuits before the Palestinian High Court against the decisions of the relevant ministers and the chairman of the Civil Service Bureau to terminate the appointment of the public servants for not having met security requirements. Initially, JLAC’s attorneys succeeded in obtaining an interim decisions from the court, committing the ministers and the chairman of the Civil Service Bureau to respond to the lawsuit submitted.
According to the Palestinian judicial system, the court considering such cases should be composed of three judges. However, due to JLAC’s suit involving more than 130 cases and the fact that such cases had been previously filed by other organizations and lawyers, a judicial body composed of five judges had been formed. The court later ruled that the High Court of Justice lacks jurisdiction to examine this type of case. The decision was issued by a majority of three judges versus two (whom had considered the court competent and the resolution of the ministers to terminate the appointment of the public servants unlawful). JLAC’s attorneys (along with attorneys from among other legal and human rights institutions) denounced this decision, stating that it opposed Article 33 of the Law on the Formation of Regular Courts enforced in Palestine which provides that the High Court of Justice is competent to examine administrative cases. Moreover, similar cases filed by JLAC had received verdicts, both positive and negative, by the quintet, resulting in a conflict in verdicts issued by the same judicial body.
JLAC’s attorneys (Bassam Karajah and Othman Hamdallah) went on to follow-up the case legally, demanding in their legal arguments that the Palestinian High Court convene in its full general assembly comprised of all sub-committee member (19 judges in total) to diminish discrepancy between verdicts issued by the same body on the same type of cases and to issue a final ruling in regards to the 130+ open dismissal cases The court accommodated JLAC’s request, and in its first session the assembly selected 3 cases from among the 130 as test cases in investigating the dismissal cases. On September 4, 2012, after much deliberation the assembly ruled that the dismissal orders were null and void. Moreover, the reasons for the dismissal were considered illegal and were accordingly cancelled; with those dismissed ordered to be reinstated in their original posts. So far, this ruling had enabled the majority of JLAC’s involved beneficiaries to return to their posts. However, in prior incidents of closed dismissal cases, the relevant ministries, despite the positive rulings, refused to either reinstate the employees in their appropriate positions (i.e. a senior teacher being assigned to a teaching assistant post) or being denied their due economic rights. JLAC is ready to provide legal consul to its represented governmental employees is such instances were to reoccur. On a relevant side note; in September 2012, slightly before the High Court ruling regarding JLAC’s dismissal cases, the Palestinian Prime Minister (Dr. Sallam Fayad) cancelled “security checks” as a prerequisite for employment (which has political affiliation dimensions to it). JLAC considers this a subtle message of the government’s will to return the dismissed persons to their posts.