Articles and Studies

It is very difficult to write about the legal profession and the authority of law in the Palestinian territories.  Not only there is a lot of confusion when trying to identify the authority of law, but also there is a lot of confusion when talking about the legal profession itself.

Recently, the basic law has been published on July 7, 2002, with immediate effect.  The law of independence of judiciary has been published in May 18^th, 2002, and many laws have been drafted and passed by the legislative council, approved by the president, published in the Gazette and came onto force.

Many of these laws can be considered as a nice decoration of legal library’s shelves with no implementation or effect on the day-to-day life.

I believe it is necessary to have a historical background of the legal situation in the Palestinian territories, to look at the process of law making mechanism and then to look into the general environment of the legal profession to be able to understand the very complicated difficulties of the legal profession and authority of law in the Palestinian territories.

 

Historical background

Palestinewas part of the Ottoman Empire since 1516. Accordingly, all the Ottoman laws were implemented on Palestine, as it is well known in that era. The Ottoman laws were originated from the Islamic laws.  In 1867 the Ottoman civil law has been codified in what so called, Al Magalla

 (Civil code) and was enforce in Palestine till the Ottoman Empire was defeated and Palestine, as a result, was placed under the British mandate.

The British high commissioner had enacted many laws, which governed the different aspects of life of the Palestinians till 1948. When the mandate ended, Israel has been declared as a state after 1948 war. Accordingly, the historical Palestine was divided into 3 different regimes as follows:

•          The Gaza Strip was placed under the administration of the Egyptian forces (1948)
•          West Bankhas been under the control of east Jordan Emirates (later on called the Hashemite kingdom of Jordan), which annexed West Bank to it in 1950.
•         Israel(1967)

 

The legal Profession and the Authority of Law has been effected so much according to this division since all the Jordanian laws, which were enforced or passed afterwards were implemented and enforced in the west bank which, as I mentioned above, was considered part of the Jordanian Kingdom.

The situation in the Gaza Strip was completely different, since the Egyptian Government never claimed any rights over the Gaza Strip; a legislative council was formed with duty to suggest laws to the Egyptian governor, who can pass these laws.  It is worth mentioning that the legislative council didn’t pass many laws, accordingly, most of the laws and regulations of the British mandate were kept enforce.

In 1967, as a result of the war between Egypt, Syria and Jordan from one side and Israel on the other, the Israeli Forces occupied the whole West Bank and the Gaza Strip.

The growth of political violence occurs, in part, because under occupation there is no legal system to which individuals and groups can appeal. Despite the implementation of limited self-rule in both West bank and Gaza the law of the land remains Israeli military law, which is completely separate from and independent of Israeli civil law. Israel kept the laws, which were enforced in each region, in theory. But in practice the Israeli Military Governor in the West Bank issued one thousand and two hundred military orders.  A similar number of military orders were issued in Gaza.  Most military orders effected the legal profession dramatically.  The Israeli system of military law in the West Bank and Gaza were self-contained and were not accountable or subject to review by any Israeli governmental body.    It is worth mentioning that the military orders in the two regions were not similar.  Accordingly the gap between the legal professions in both regions (Gaza and West Bank) increased.

In 1994, as a result of Oslo accords, the Palestinian Authority (PA) took over the whole Gaza Strip (apart from Israeli settlements) and gradually, West Bank (apart from the Israeli settlements) as well.  The two regions, by 1994, had two different legal systems, judicial institutions, as well as, different background of legal professionals.  In my opinion, the fatal mistake started when people started to call for immediate unification of the two legal systems.