Dfense lawyer for one of the PA’s political detainees commenting upon why not a single member of the Executive Authority and its security forces had been convicted by the High Court for illegally detaining political prisoners.

“Procedures are like a general indicator here of what should happen.”
 

Mr. Jamil al-A’shi, judge at the High Court in Gaza, answering questions about why the High Court at times takes over a year to reach its final decision.

“The courts want to avoid a face-to-face confrontation [with the PA]."

Mr. Fayez al-Quidrah, President of the High Court in Gaza, answering questions concerning why the High Court delays its hearings in detention cases.

“This is a period of transformation: the extension is like an encouragement to the Attorney General to do his job”

Mr. Jamil al-A’shi, judge at the High Court in Gaza, answering questions about why the High Court constantly grants more time to the Attorney General to bring information relating to detainees before the High Court of Justice.

“The court has gained experience. In these [detention] cases, the Court now already knows the answer.”

Mr. Hamdan al-Abadleh, judge at the High Court in Gaza, answering questions as to why it appears that in recent cases the Court is reaching its decision with less delay.

“Frankly, in the High Court of Justice we cannot do justice in these cases. The only reason we stay is to serve the people.”

r. Fayez al-Quidrah, President of the High Court in Gaza, commenting on political detention cases.

“We do our duty as best we can and serve the community and the people. If we are unsatisfied, we will leave or jobs. Our basic rule is to serve the community.”

Mr. Hamdan al-Abadleh, judge at the High Court in Gaza, answering questions as to the level of frustration felt by judges whose decisions are not implemented.

“Before the coming of the Palestinian Authority, I was able to visit Palestinian prisoners in Israeli prisons. Now I am not able to visit Palestinian prisoners in Palestinian prisons.”


Subhiyye Juma’a, defense lawyer at the Palestinian Independent Commission for Citizens’ Rights

“If there is a problem in the Peace Agreement, then it is a political and not a judicial problem.”

Mr. Fayez al-Quidrah, President of the High Court in Gaza, answering questions concerning the Palestinian Authority’s obligation under the Interim Agreement to detain Palestinians without charge and trial.

“You know what it is like. Everything is politicized. It could take one week, one month or one year.”

Abu Moor, answering a question as to how long he thinks it would take President Arafat to sign a forthcoming law on a unified criminal procedure for Gaza and the West Bank.

“I desperately need training.”

Words of Mr. Mohammad Ayoub, one of the two better lawyers from the West Bank and Gaza in the High Courts’ political detention cases.

“Even lawyers find it difficult to get hold of judgements.”

Subhiyye Juma’a, defense lawyer at the Palestinian Independent Commission for Citizens’ Rights, commenting on the fact that PHRMG had been refused access to non-confidential judgements by the human rights organisations the Palestinian Centre for Human Rights and LAW.

“We just have a one man show who decides everything form A to Z.”

Defense lawyer in political detention cases, not answering a question about the High Court’s confusion on questions of jurisdiction.

Presidential Decree # 1 was issued by President Arafat from Tunisia on 20 May 1994, stating the continuation to maintain the previous judicial system with the same judges and procedures, using the laws that were in existence before the Israeli Occupation in 1967. That decision was like laying the first foundation for the Palestinian judiciary under the rule of the Palestinian Authority, but that caused a split in the Palestinian judiciary into two parts:

The Civil Judiciary

The Military (Revolutionary) Judiciary

The civil judiciary consists of civil, religious and personal status courts, as well as the general prosecution that carries out the tasks of following criminals and referring the accused persons to the responsible courts (according to decision # 287 of 1995, issued by the President of the PA. Both prosecutions in the West Bank and Gaza Strip were unified into one prosecution, the General Attorney of the PA, Zuheir al-Sourani).

The Ministry of Justice in the PA supports and facilitates judicial matters, whereas the Supreme Judicial Council supervises all judicial subjects in the Autonomous areas. The Supreme Judicial Council looks after and supervises all judicial subjects in the Palestinian Autonomous areas.

The Chief Justice and the chairman of the PA handle all issues related to the judiciary in the Gaza Strip, whereas the revolutionary judiciary specializes in executing penal legislation of the PLO code of 1979, which was issued by Chairman Arafat as head of the Executive Committee of the PLO. This code consists of a group of rules and regulations and came to be known later as the legislative Decision # 5, which includes:

-PLO law of criminal judgements

-PLO law of revolutionary judgements

-PLO law of prisons (rehabilitation centres)

-PLO system of revolutionary courts

According to Article 119 of that decision, the revolutionary courts are divided into the central court, in which one individual judge looks into cases of judgements involving not more that one year imprisonment, and the permanent military court, which looks into all crimes, especially those related to the security of the revolution, and serious crimes that are committed by civilians or fighters regardless of their status or position.


Additionally, there is a court for “special cases” that deals with matters that the revolutionary court may refuse, crimes committed by militants of rank higher than major, and cases as defined in its formation decision, and the militant field court. The mission of the judiciary is to solve problems that arise between citizens or families, or between them and the public or official departments or sides, by referring to and implementing the existing laws, rules and systems.


A) Judiciary Paradoxes

"The police have issued an order preventing all prosecution officers and attorneys from entering police stations and detention centres in the first 48 hours of detention."

Freih Abu-Meddein, Minister of Justice, in the PLC on 12 May 99

The continuous interference of the Executive Authority and its officials in the work of the judiciary has become routine, thus creating a society dominated by different security services in the absence of the rule of law. This interference is considered the first and major obstacle for the Palestinian judiciary. There are various examples of interference of the Executive Authority in the work of the judiciary, most importantly and influentially are the decrees and decisions issued by the President of the PA, Yasser Arafat. Here are some examples of just such interference:

-On 19 June 1999 Zuheir Sourani, 63, was appointed Attorney General of the PA.

-On 11 June 1999 Radwan al-Agha was appointed Chief Justice and head of the High Court of Justice.

-On 1 November 1999 Councilor Khaled al-Qidra was appointed Attorney General for the State Security Courts.

-And finally the decision was taken in November of 1999 to appoint Abdel-Latif Abdel-Fattah as general prosecutor in the West Bank, although he had been convicted for the ill treatment of detainee Walid al-Kawasmi who died in Jericho Prison on 9 August 1999, and had been issued a prison sentence of seven years by the military court in Jericho.

Decision # 28, taken by President Arafat in 1999, was to give the Chief Justice that he appointed, Radwan al-Agha, the legislation to arrange and organise all issues related to the judiciary system, and to supervise the appointments and vacations of all judges and administrative officials in all courts in the Palestinian areas. That decision was a serious interference in the legislation authority, because it emphasized the legislation of the head of the judiciary, the Chief Justice, and it contradicts the existing laws in these areas which give such legislation to the Supreme Judicial Council and the Ministry of Justice.



Another major obstacle that prevents a fair, clean and efficient judiciary is the appointment of general attorneys by the Minister of Justice, Freih Abu-Meddin, who makes these appointments according to the family relations and political affiliations of the appointees rather than basing his decisions upon professional qualifications. For example, in March 1998 he appointed two general attorneys in Ramallah. One of them is the cousin of Mohammed Zuhdi Nashashibi, Minister of Finance in the PA, and another is the nephew of Ahmad Qurei’, chairman of the PLC. It is obvious that all such appointments of people with contacts close to the leadership of the PA aim to strengthen its domination.



A third problem is that the Executive Authority and its security services do not implement decisions and judgements taken by the judiciary. Numerous examples could be mentioned here, including tens of decisions from the High Court to release political prisoners that were not executed. The most famous of those is Abdel-Aziz Rantisi, one of the leaders of Hamas, who is still imprisoned by the PA, although the High Court ordered his release more than 18 months ago. Another obvious example is the dismissal of the ex-Chief Justice Qussay al-Abadleh in February 1998, because he simply criticized the interference of the Minsiter of Justice, Freih Abu-Meddin, in the work of the Courts. No successor was appointed untill 11 June 1999.



Important Judicial Positions Vacant



Yet another problem in the judicial system is that very important positions in the judiciary are left vacant for long periods. The position of Attorney General in the PA was vacant for 4 months after the dismissal of Fayez Abu Rahmeh, and the position of Chief Justice was vacant for 7 months, before the appointment of Radwan al-Agha.



As for the Courts, the conciliation court in Tulkarem, for example, used to have three process servers (bailiffs) before 1967, but at present there is only one (and he has been away on sick leave for a month).



Lack of Professional Staff

The Palestinian judiciary lacks professional staff to carry out administrative duties, mainly in courts.



In Jenin District, with a population of more over 300,000, there is only one court with one judge, who deals with 150 - 400 cases every day, and he is considered a judge of reconciliation, a judge of first instance, a judge of traffic violations and a head of the executive department



Primitive Procedures, Techniques and Tools



Courts in all the Palestinian districts lack efficient procedures, modern equipment and filing systems. Computers are not yet used, and the number of administrative staff is insufficient. Basic tools are not available, for example, in the Court in Jenin, lawyers once went on strike because there wasn’t official paper in the Court for writing judgements. The absence of judicial police makes it even worse, as the Court refers to the security services to implement its judgements, if they are ever implemented.



The number of judges in the Courts is not sufficient, and some of them need training, as they are unqualified. There are a few reasons that dissuade lawyers from entering the judiciary and becoming judges, such as the low salaries they receive anf the classification of judges (all at grade D, i.e., a veteran judge who has been in the profession for years would earn the same as a newly appointed one). The explanation that there are no funds available is untrue. There was $5 million US directed to the Ministry of Justice in the last PA budget, and the Ministry’s revenue from Jenin District alone is 3 million shekels every year.



Judiciary in the West Bank is different from that in Gaza Strip!



Ideally, a Supreme Judicial Council would run the judicial system in both the West Bank and Gaza, yet this is not the case. There are different judicial procedures, laws, rules and regulations in both areas. Moreover, there is no High Court of Justice, no Chief Justice, and no Judicial Inspector in the Ministry of Justice in the West Bank.



The weak administrative and executive experience of the PA in judicial matters, and the mix between a revolution status and statehood (civil society) leads to complex disorder, in which corruption in the absence of the rule of law is free to grow rampant.
B) The High Court of Justice



Political prisoners are afraid to approach the High Court of Justice



Political prisoners in Gaza Central Prison said that they are afraid to approach the High Court, because the PA would then transfer them to other places of detention administered by the security services (which are worse). It had become known to them that if the High Court decides to release one of the political prisoners, the security service responsible for his detention would take him back to its own detention centre where conditions are very bad.



The High Court was formed in the Gaza Strip of 12 judges, with a minimum of two of them present at a session. But in the West Bank there is a Court of Appeal(s) that takes the role of a High Court, and meets in Ramallah with a chairman and judges as needed.



The judiciary in general, and the High Court in particular, suffered a great deal of negligence and disrespect from the Executive Authority, who in most cases refuses to implement its judgements.



The High Court and Palestinian suspects in legal limbo



As a result of the aforementioned state of affairs, it becomes clear that the Peace Agreements have created a category of Palestinian prisoners who find themselves in legal limbo. The Peace Agreements provide that Palestinians suspected by Israel of security offenses should be transferred to Israel to be dealt with under the laws of Israel and under laws of international human rights related to detainees and prisoners. Israel retains all evidence against the suspect, evidence that is necessary in order to charge him/her with a specific offense under Israeli or International law. Jurisdiction over such individuals and the ability to charge such individuals has, therefore, not been transferred to either the PA or to the Palestinian courts.



The provision providing for their detention in PA prisons pending transfer to Israel does not mean that legal jurisdiction is transferred to the PA and its courts. Rather it is a temporary measure which in effect, together with other provisions, provides that if the suspect is detained in a PA prison, Palestinian law and international law are not applicable, because Israel has retained its jurisdictional right (as Occupying Power) to apply its own laws to that individual. Result: individuals detained by the PA inevitably have both their rights under Palestinian law and under international human rights law violated. And the basis for this violation is enshrined in an International Peace Agreement.



The High Courts of Justice in Gaza and the West Bank have consequently found themselves in a legally interesting position. For the first time since 1967 they have started functioning as supposedly independent courts within supposedly clearly defined areas of jurisdiction, supposedly applying, as in pre-1967, all Palestinian laws in force in (now) Areas A and B to all Palestinians. But pursuant to the above legal obligations of the PA under the Peace Agreements, the High Court has come under considerable pressure from the PA to accept that it does not have jurisdiction over such detention cases. This is the legal context within which to place the High Court’s approach to Palestinian political detainees held without charge or trial in Palestinian prisons.



In 1996 only one case related to political detention was considered by the two High Courts. A five court panel of the High Court in Ramallah (West Bank) heard the by now well-known case of 9 students from the Bir-Zeit University in the West Bank. Finding that the students, arrested on different days during the month of March 1996, had been detained for an average of 150 days without having been charged or brought to trial, the Court ordered their release on 18 August 1996.



In 1997, the High Court heard three political detention cases, those of Fathi Subuh (6 October 1997, rejection of the case without issuing a written judgement), Mahmud Musleh (judgement on 30 November 1997) and Rajab al-Baba (judgement on 28 December 1998). Mr Subuh’s case was rejected by the High Court, which decided that the State Security Court had jurisdiction over his detention. In both the case of Mahmud Musleh and Rajab al-Baba, the High Court argued that it had jurisdiction and ordered their release.



The two cases of Mr. Musleh and Mr. al-Baba marked a shift in the Court’s role in PA detention cases. Since the beginning of 1998 the High Courts in Gaza and the West Bank have in most cases categorically refused to buckle under the PA’s inevitable behind-the-scene dialogue with the Courts. This a dialogue has been an attempt to ensure that the High Court only claims jurisdiction over a detainee’s case if a final decision ordering his release does not put pressure on the PA to deal with him in a way contrary to Israel’s (self-defined) interest and rights under the Peace Agreement.



In almost all of the 17 cases that have come before the High Courts in Gaza and in the West Bank during the period of 1 January 1998 to 3 July 1999, the Attorney General, representing the defendant from the Security Services against whom the claims for illegal detention are lodged, has argued that the detainee falls under the jurisdiction of the State Security Court established by President Arafat by decree in 1995. And with the exception of two of those seventeen cases, two cases in which the High Court in Gaza accepted this claim without requesting any evidence to substantiate it, both High Courts have requested that the Attorney General provide evidence of the State Security Court’s jurisdiction to the High Court and have subsequently ordered the release of the detainee lodging the claim.



These were the cases of Ibrahim al-Halabi, judgement 7 April 1997 and Ibrahim al-Maqadmeh, judgement 20 June 1998.



The technical reason given by the Court in the judgements themselves is that the Attorney General, (responsible under the law in Gaza for the initiation and closing of any criminal file, and in the West Bank for the final say relating to any decision taken by the General Prosecutor in relation to the detention, charging or release of the detainee), must be given time to obtain information from the Security Services claiming jurisdiction over the detainee. In Gaza the High Court invokes the general power it has to give the Attorney General an unspecified period of time (usually 8 days), a period of time that is apparently renewable for a further unspecified period of time. In the West Bank the Court bases its granting of such a period of time on Article 257 (sometimes mistakenly referred to by both lawyers and judges in their decisions as Article 258) of the 1961 Penal Law. The most serious case of delay involved was that of Mahmoud Watfa (a 395-day delay). This is an obvious example of the failure of the High Court to execute its power without a clear explanation.



The political reason for the High Court taking such long periods of time to reach a final decision is the overriding factor explaining the Court’s delay in these cases. Political imperatives in effect force the Court to deny detainees the immediate justice that is their right: “Frankly,” says President Fayez al-Quidrah of the High Court in Gaza, “in the High Court we cannot do justice in these cases. The court knows that according to the law it should not do this, but as we are under very special circumstances … no judge can decide freely.” This view was echoed by his colleague Mr. Jamil al-Ashi: “This is a period of transformation. The extension [of time given to the Attorney General] is like an encouragement to the Attorney General to do his work. It is not a question of strict procedures being applied. It is more a question of trying to make sure that all the parties fulfil their judicial functions.” Mr. al-Quidrah expresses the opinion that in a number of cases the Attorney General has not heard of the case before the first complaint is lodged, and that he, therefore, needs to be given time to obtain the information from the Security Services. He also contends that “the Courts want to avoid a face-to-face confrontation.” Therefore, it has to be flexible with procedures so as not to destroy all chances of cooperation. “Procedures are like a general indicator here of what should happen,” says Jamil al-A’shi. In Mr. al-Quidrah’s words, “The Attorney General completely reflects the point of view of the Executive Authority. Judges, therefore, have to hold the stick at the centre.”



On 21 June 1999 defense attorney Mohammad Ayoub in Ramallah made the point that the Attorney General’s office in Ramallah is next to the General Prosecutor’s office. Information about files could be transferred from the General Prosecutor (who maintains close contact with the Security Services) to the Attorney General “within minutes.”



When we asked Judge Fayez al-Qidra, head of the High Court in Gaza, about the jurisdiction of his court, he replied: “The High Court doesn’t monitor other courts, and I don’t know exactly how the State Security Court functions.” He added that “when the constitutional court is formed, all such problems would be solved.”



Attorney Mohammned Ayoub said, “The High Court refuses to answer many questions. There are often political reasons.” This is probably right, and that could be the reason why Sami Sarsour, the ex-head of High Court in the West Bank, decided not to give any information or announcements to any human rights organisations.



It is worth mentioning here that the draft law of the judiciary has been approved in its third reading and was presented to President Arafat for approval 21 months ago. In that law there is a clear verse (Article 83) which states that “the High Court will temporarily carry out the duties of the high constitutional court.”



C) The State Security Court



On 7 February 1995 President Arafat issued his decree establishing the State Security Court based on Articles 23 and 95 of the constitutional law of Gaza, issued on 5 March 1962, and this decision included forming two State Security Courts, one in Gaza and the other in the West Bank.



Since its formation, the State Security Court has handled many cases, especially of individuals affiliated with the political opposition. The total number of persons sentenced to death by the State Security Court is nine (as of this writing), and the total number of persons presented to the State Security Court (as of this writing) is 50 detainees in Gaza and 25 in the West Bank. According to the previous developments, the State Security Court now includes partial State Security Court, comprehensive State Security Court and high State Security Court. The partial and comprehensive State Security Courts had wider jurisdictions after the Presidential Decision # 5 for the year 1998 that stated: "the State Security Court specifies in all kinds of crimes that occur with reference to articles 386-388 of the penal law # 16 of 1960 in the West Bank, and articles 63-68 of the public health law # 43 of 1966."





Partial / Comprehensive State Security Court



Consists of one judge, and specifies in looking into crimes as mentioned earlier -- if the maximum judgement does not exceed three years, whereas the comprehensive State Security Court consists of three judges and specifies in crimes that are committed by either civilian or militant individuals. Prosecution before the comprehensive State Security Court is represented by the military general prosecutor, whereas in the partial State Security Court it is represented by the civil general prosecutor.



High State Security Court



This court was formed following a presidential decision in 1995, based on the emergency British laws of 1945. It specializes in cases related to the state security internally and externally, and it is formed by a decision taken from the President of the PA in every single case. It consists of a chairman and two judges, all from the military, and the judgements taken in this court need approval from the President of the PA to be executed. Prosecution before this court was represented by the civil prosecutor until 1997. After that it was represented by the military prosecutor.



No appeals are to be made against decisions taken by the high State Security Court. For example, on 23 January 1999, it took a judgement against the citizen Hisham al-Hitou of seven years hard labour, plus the refund of 5 million shekels to the State’s treasury, a 5-million-shekel fine, and the confiscation of all his properties, on the charge of damaging the national economy.



It is worth mentioning that President Arafat appointed Khaled al-Qidra as Attorney General for the State Security Courts, which was received by a wave of protest from human rights organisations, since al-Qidra was the civil Attorney General in the past and was dismissed for unknown reasons.



The decision to establish the State Security Court contradicts many international and local agreements and decisions. For example, it contradicts the decision of the Executive Committee of the PLO issued on 30 September 1993 that confirms "respect of all the international agreements concerned with human rights." At the same time, it contradicts the agreement signed between the PLO and Israel on 4 January 1994 which stated (in Article 6) that "the Palestinian Authority takes over the responsibility of the judiciary through an independent judicial authority."



One of the factors that forced the PA to establish the State Security Court is the pressure exercised by Israel and the US to have trials for those detainees captured in 1994 and early 1995 and imprison them. This step in fact added further damage to the civil courts that were almost absent during the Israeli Occupation. The State Security Court serves the following issues:

-Condemning (by arrest) Palestinians, as demanded by Israel and the US.

-Getting rid of (by arrest) unwanted Palestinians (by the PA).

-Preventing arrest and trial of Palestinians inside Israel.

-Responding to the requests of the public to condemn and punish members of the security services who violate human rights (on demand from the public and not according to the law).

-Threatening some intellectuals and human rights activists who criticize the PA, as in the case of “Petition-20” when a group of PLC members and academics protested against the negative behaviour of the PA, and some of them were detained (late November 1999).



The sessions of the State Security Court often take place late at night, after midnight, and they do not take more than few minutes to come out with the “needed” decision. Some of the human rights violated by this court are:

-The right to a public, fair, objective and specialized trial, as families or defense lawyers or the media are not often allowed into the Court.

-The right to choose a defense lawyer, as in all the cases that occurred before this court when the defense lawyer was appointed by the Court, with no right to call witnesses.

-The right to appeal; at present, the President of the PA has the right to approve the judgement or issue a pardon.

-The right to know the charge(s) immediately. The suspect is normally informed of the list of charges a few minutes before his trial, with insufficient details, and without getting a copy of the case document(s).



On 11 April 1995 the State Security Court issued a judgement of life imprisonment against Omar Shalah with no confession or evidences, but a few days after that the Palestinian Security Forces arrested another Palestinian who confessed to the same crime. Yet Omar Shalah has spent four years (so far) in prison for a crime that he never committed. There is no legal way out of it.



D) Military Courts



These are the Courts that were formed by the Palestinian revolution to deal with all problems and disputes that break with the legislation of the PLO, according to the Revolutionary Code of 1979. These courts specialize in crimes and offenses committed by Palestinian militants or members of the security forces.



Article 119 of the PLO Revolutionary Code of 1979, states that the revolutionary courts are:



1) The Central Court

Consists of one judge by a decision from the supreme leader (Arafat), in coordination with the head of the judiciary. It looks into crimes and offenses that require a maximum punishment of one year. Appeals against its decisions could be presented within 10 days to the head of the judiciary, and if accepted they are referred to the permanent military court. There are three central courts available at present, one in Gaza, another in Ramallah and a third in Jericho.



2) The Permanent Military Court

Consists of three judges by a decision from the supreme leader (Arafat). In coordination with the head of the judiciary, it deals with all kinds of offenses or crimes. Appeals against decisions taken by this court could be presented in writing to the head of the judiciary within 15 days. It is then discussed and if accepted is referred to the special court. Its decisions do not exceed three years imprisonment with approval from the President (if the judgement is more than that). There are three permanent military courts distributed in the region, as was mentioned above.



3) The Revolution Security Court

This is the High Military Court, formed from three judges by a decision of the supreme leader (Arafat), in coordination with the head of the judiciary. It looks into crimes related to internal security matters of the Palestinian revolution, or any crime that deserves life imprisonment, capital punishment, or other serious crimes committed by civilians, or any persons regardless of their positions or seniority, according to the law.

The period for appeals is 15 days, and judgements of this court need approval from the supreme leader, who may decide to reduce them, cancel them or have a retrial. This court is in effect on special cases.



4) The Special Court

Consists of three judges. Its chairman is appointed by the supreme leader (Arafat), and the other two judges are appointed from the penal revolutionary rooms by a decision from the head of judiciary. It looks into the following matters:



-Appeals against certain cases from the permanent court

-Crimes committed by military persennel of the rank “major” and above.

Judgements made by this court are not eligible for any appeal, but require approval from the supreme leader. This court is formed for special cases.



5) Military Field Court

Is formed by a decision from the supreme leader (Arafat) with a chairman and two members, one of them legal (advocate). The chairman’s rank should be at minimum “major," and it is not allowed to have an official tried in a court with its chairman having a lower rank than the suspect. This court specializes in crimes committed during military operations or during wars.



The military judiciary is a system independent from the civil judiciary, and is headed by an official who is responsible for the military courts. But by law, this responsibility must be for the Minister of War or Minister of Defense. All the judges have to be military personnel, and the prosecution is represented by judges related to the military head of the judicial military system. The military courts in the West Bank and Gaza have issued many judgements regarding many cases that received protest and condemnation from various human rights organisations.



Among those judgements, was one issued on 29 August 1998 in Gaza city against three militants (three brothers: Fares, Mohammed and Ra’ed Abu Sultan), all judged with the death penalty. Besides these three, two more civilians were judged in the same court session. The first with life imprisonment with hard labour, the second with five years hard labour. Twelve people have been brought before the military courts since the coming of the PA.



At first the military courts only dealt with military suspects, but after a while some civilians were tried in them. In the military courts, the opportunity to have a fair trial is bigger because in some cases the suspects are allowed to bring in their defense lawyers, and sometimes sessions are open to the public (contrary to the State Security Court). In the military courts there is a chance for appeals to occur, but they still lack fair trials. An example of a case before the military courts is the case of the trial of Mahmoud Kokash (a Palestinian soldier) and four other citizens: Ibrahim Abu-Ali, Khaled Khalaf, Fadi al-Qadi and Faisal al-Qadi. On 5 February 1998 they appeared before the Court on the charge of collaborating with a foreign state, but they were found innocent (according to Article 131A of the PLO Code of 1979, and the Court ordered their release. But they are in prison to this day.
Recommendations



Until now, the PA has yet to actually take any positive steps towards improving its judicial system, or solving the problems that face the Palestinian judiciary, despite realizing the present faults and obstacles.



On the contrary, its obvious practices strengthen these obstacles, by maintaining a minority within the PA that work to undermine the rule of law, and to preserve the primitive judicial system that exists in the Palestinian Autonomous areas. What helps maintain the current old-fashioned judiciary is the ugly cooperation of some PLC members and the hesitation of others. Although we appreciate the important role of the PLC in organising marches and issuing communiqués, this role remains passive if it doesn’t affect the Executive Authority and its security services.



The PHRMG recommends, as have many others, that:

i. Courts have to be unified, identified in titles, powers and jurisdictions.

ii. All Palestinian security services have to get descriptions of their powers and jurisdictions.

iii. There be the formation of a Supreme Judicial Council on objective scientific foundations, not political ones.

iv. There be the approval and implementation of the new Palestinian Law of Judiciary.

v. A Constitutional Court be formed.

vi. Courts of first instance be established in all the Palestinian regions, with sufficient numbers of judges and administrative staff and equipment.

vii. There be an improvement in the conditions of judges, technically and financially.

viii. There be preparation of qualified and trained staff for the judicial system.

ix. The judiciary be independent in all its aspects, administratively and financially.

x. There be an immediate decision to prevent rapid trials, that capital punishment be abolished and that work be started to cancel it from the Palestinian judiciary, and that the State Security Court be cancelled. (Take the example of the Lebanese courts issuing an unfair judgement of capital punishment against one of the “Fateh” high officials in Lebanon.)




 

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