- Palestinian law
Palestinian law is the
rule of lawwithin the territory administered by the Palestinian National Authoritypursuant to the Oslo Accords. It has an unusually unsettled status, as of 2008, due to the complex legal historyof the area, the overlapping jurisdictions, and the lawlessness and high crime ratein those areas. Palestinian law includes many of the legal regimes and precepts used in the area presently known as "Palestine" and administered by the Authority, 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 Palestine, 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
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Palestine before 70 C.E., also known as Halakha: "Those of the laws of Palestine that were extended after the Exilewere originally enacted for the purpose of protecting the judicial administration and economic interests of Palestine, and with a view to encourage settlement there." [ [http://www.jewishencyclopedia.com/view.jsp?artid=33&letter=P Jewish Encyclopedia online from 1906] . Accessed July 24, 2008.] Such references to ancient Palestinian law do not apply to the Palestinian legal situation since at least 1948.
Essentially, says one
legal scholar, "the legal system in Palestine consists of layer upon layer of law that almost all remain in effect."Wadi Fouad Muhaisen, "The Palestinian Legal System" (essay, 2003), found at http://www.theyap.org/showcase/politicsandlaw/palestinianlegalsystem/ The Palestinian Legal System at Yap.com website] . Accessed July 31, 2008] The major issue is the:
quote|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 Palestine throughout this century, when Palestine fell under different occupations and administrations. 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.|
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
Intifadah, and finally, the Palestinian National Authority's Basic law.
Basic law", established in 2002, is the proposed constitutionof a future Palestinian state. [http://www.mideastweb.org/basiclaw.htm Mideastweb website] . ] 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." It was enacted by the PLS (the Legislature) and signed by Yasser Arafat. [It is not entirely clear that Chairman Arafat's signature was required.] It was amended on March 19, 2003 "to allow the creation of the Prime Minister Position in the Palestinian National Authority...."Amended Basic Law, found at [http://www.usaid.gov/wbg/misc/Amended_Basic_Law.pdf USAID government law website English translation] . Accessed July 24, 2008.]
The Basic Law is based loosely on
Shari'a:Quote|According to Article 4:
# Islam is the official religion in Palestine. Respect and sanctity of all other heavenly religions shall be maintained.
# The principles of Islamic Shari'a shall be the main source of legislation.
# Arabic shall be the official language.|Mideastweb.org
Articles of the Basic Law
With 121 articles, it is more akin to a state
constitutionin comprehensiveness, detail and length.
bill of rights" Articles of the Basic Law, as amended March 19, 2003, cover the following topics:
# "Palestine is part of the large [r] Arab World ...."
# "The People is the source of power" and the 3 branches of government enshrines "the principle of
separation of powers"
# States that "Jerusalem is the Capital of Palestine."
# Islamic law is the basis, and Arabic is the official language, of Palestine
# Creates "a democratic parliamentary system based on political and party pluralism" and a popularly elected President
# Recognizes the "principle of the
rule of law"
# Regulates citizenship
# Defines the official flag
# Protects against "discrimination because of race, sex, color, religion, political views, or disability"
# Protection of
# Protection of
freedomand procedural due process
# Rights to "be informed of the reasons for his arrest or detention", to contact an attorney, and a speedy trial (see
# No duress, torture or forced confessions
# Rights to be "innocent until proven guilty", to a defense, and to a lawyer for defense
# Crime and punishment defined by law
# Right to bodily integrity
# Prohibition of searches except by lawful order
# 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." )
# Freedom of expression
# Freedom of movement
# Creation of a
free market economyand prohibition against taking without fair compensation
# Insurance for health, disability, retirement, "welfare of families of martyrs’", and
prisoners of war
# Right to housing
# Right to an education
tatutes and legislation
There is some confusion amongst
jurists, scholars and laymen about exactly what legal regime exists, and which laws apply, in Palestine. Mahdi Abdul Hadi, a legal scholar, believes that all prior and current law continues to apply in the Palestinian territories, including "the British Mandatelaws, the Jordanian laws that used to govern the West Bankbefore 1967 and the Egyptian law that governed Gaza Stripbefore 1967, in addition to the Israeli militaryorders."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 [http://www.passia.org/meetings/2005/Ammar-Dwaik-2005s.htm Passia.org website] . Accessed July 29, 2008.] According to Abdul Hadi, the first step was the organization of "Palestinian civil society", that is, a traditional law, "then came the Madrid Conferenceand the Oslo Accordswhich drafted laws to govern the Palestinian political life for the interim period." 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."
According to Wadi Fouad Muhaisen, another legal scholar,
Ottomanlaw has governed Palestine since 1517, and the Land Code is still in force. The Ottoman statutory "codification mirrored Islamic law but also incorporated elements of European law, especially the law of France."
Judicial and customary law
Islamic customary law applies in Palestine:
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,"Urf", "Encyclopaedia of Islam"] the
Shariarecognizes customs that prevailed at the time of Muhammadbut were not abrogated by the Qur'anor 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".Hasan (2004), p. 169-71]
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. Criminal law
For the most part, crimes and violent acts are considered crimes of violence and fall under the purview of the
criminal justicesystem. 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. [ [http://www.btselem.org/English/Inter_Palestinian_Violations/Death_Penalty_in_the_PA.asp Death Penalty in the PA] B'Tselem] Civil law Participatory justice
Conflict of Laws
Law of Israel
International criminal law
* Islamic jurisprudence
Sources of Islamic law
List of Islamic terms in Arabic
* Boyle, Francis A., "The Fruits of Faith: Palestine, Palestinians & International Law", (Clarity Press, Atlanta 2003) ISBN  , see [http://www.bookmasters.com/clarity/b0021.htm Bookmasters web site]
* [http://www.freewebs.com/plhr/studentswork.htm Bibliography of Palestinian Laws and Human Rights]
* [http://www.abedawad.com/IslamicFamilyLaw.htm Abed Awad, an Islamic Family Law law firm in New York]
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