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4. Criteria for
declaring a valid state of emergency
According to the
above mentioned Presidential decree # 1 of 1994, to the decree
establishing the State Security Court that was based on the Emergency
Regulations and to the proposed Palestinian Basic Law that permits the
declaration of a state of emergency, there should be a clear recognition
of and commitment to the notion of rule within a state of emergence,
regardless of its rightfulness and validity.
Article 108 of the
Emergency Regulations provides for the detention of a citizen if he is
suspected of something and if he constitutes a threat to general order and
security.
Thus to consider a
person a suspect, one must prove that he falls under the law of suspects,
i.e. the Emergency Regulations. This suggests that if someone is
considered a suspect, he has not actually committed a crime or an offense,
but is simply suspected of having done so. To consider a person a threat
to general order or security does not depend on the fulfillment of clear
criteria. The only basis is the actual investigation of the authorities,
i.e. the police or security services.
Article 109 of the
same Emergency Regulations authorizes the detention of any person who
disobeys orders issued pursuant to the Emergency Regulations or who has
committed any one of the crimes mentioned in it. This case is wide and
flexible as all crimes to which these orders relate provide for the
detention of the persons who have committed them, even if the maximum
punishment was a fine.
If we compare the
civilian Penal Law with the Emergency Regulations, we notice that articles
of the former law put conditions on the detention of a person: he has to
commit a certain crime and be caught in the act before he can be detained.
Articles 7 and 8 of the Penal Law give jurisdiction to the interrogating
officer or to the General Prosecutor to issue orders for arrest and to
apprehend or summon a person: in the case of the Emergency Regulations,
such jurisdiction is given to various authorities (police or prosecution
or security service) in various articles of that law.
This means that the
Emergency Regulations give the concerned authority the power to detain
people, even where it is not a judicial authority. The Penal Law only
gives such power to the prosecution, which is a judicial authority.
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