From the election of the first parliament until June 2007 (when  parliamentary life was frozen upon the new election that led to the Israeli blockade on the Gaza Strip and the frequent detention of parliament members by the Israeli army), ninety-seven laws have been adopted for both Gaza and the West Bank. Among the significant pieces of legislation that went through the standard legislative process are: Election of Palestinian Local Authorities’ Councils Law of 16 December 1996, Local Government Law of 12 October 1997, Higher Education Law of 2 November 1998, Environment Law of 28 December 1999, Labour Law of 30 April 2000, Law of the Formation of Regular Courts of 12 May 2001, Banking Law of 21 May 2002, Social Security Law of 19 October 2003, Income Tax Law of 28 December 2004, General Elections Law of 13 August 2005, and Medical Council Law of 20 January 2006. Such parliamentary acts have positively shaped the political, economic, social, juridical and security life in the Palestinian territory.

It is apparent, nonetheless, that these enactments have been adopted on an ad hoc basis without having a strategy for systematic legislative reform. For this reason, key legislation has yet to be passed, including the civil code, penal code, family law, commercial code, land law, and companies law. Most of these pieces of legislation are still different between the West Bank and Gaza; they were mainly derived from the Jordanian era in the West Bank (1948-1967) or inherited from the British rule period in the Gaza Strip (1918-1948). Legislation often came as a reaction to pressures or as a response to the demands of interest groups; that is to say, not as part of a national strategy. The Basic Law of 29 May 2002 was a reaction to the pressure of the international community on President Arafat in order to reduce some of his absolute powers. The Legal Profession Law of 24 June 1999 constituted a response to the repeated demands of the Bar Association. Security-related legislation, including service in the Security Forces, by Law of 4 June 2005, was part of the reform scheme that was influenced by the U.S. administration. The Associations Law of 16 January 2000 came as a result of hard work undertaken by civil society. Finally, the promulgation of the Child Law of 15 August 2004 was sponsored by the United Nations Children’s Fund.

It is to be noted that draft laws have been frequently presented for discussion through conferences and workshops by relevant institutions and experts, particularly NGOs and UN agencies as well as academia, at various stages in the legislative process. Recent examples include: discussing the draft penal code at the Jericho conference that was sponsored by the UN Development Programme in November 2010 with the participation of dozens of experts and civil society activists, the draft civil code that was analyzed at the Hebron University Legal Clinic seminar in December 2011, and the draft legal aid law that was the subject of a Ramallah workshop in December 2012. In a number of instances, experts are recruited to prepare bills, as in the cases of the nationality draft law, juvenile justice draft law, and the draft law relating to the State Audit and Administrative Control Bureau.

A partial strategy, endorsed in 1996, was the forming of Legal Development Commissions. This strategy yielded a series of legislative acts relating to the judiciary: Arbitration Law of 5 April 2000, Law of the Formation of Regular Courts, Civil Procedures Law, Penal Procedures Law, Law of Evidence (all the latter four laws were enacted on 12 May 2001), Judicial Authority Law of 14 May 2002, and the Enforcement of Judgements Law of 22 December 2005. These core laws correlate with each other and regulate the fundamental courts’ function. They prove that legislative reform works best when it is based on strategies that stem from the actual needs of a given sector.

The legislative process went a step back with the division between the West Bank and Gaza after the takeover of Gaza by Hamas in June 2007. Since then, Hamas has been ruling the Strip, while the Fatah-led PA retained its self-role over the West Bank. Each party claims legitimacy for governing and legislating. Fatah bases its regime on the presidential elections of 2005 in which President Abbas won; Hamas justifies its regime by its victory in the 2006 parliamentary elections. The four year terms of both Hamas and Abbas have lapsed because no presidential or legislative elections have taken place since 2005 and 2006, respectively. The legitimacy of both parties is questionable.

In addition, the parliament was unable to meet since the 2006 election due to the separation between the West Bank and Gaza by Israel and, as mentioned above, because Israel has arrested dozens of parliament members. These two reasons made it impracticable for the parliament to hold full sessions. While the President continued to rule the West Bank by presidential decrees as shown above; Hamas governs the Gaza Strip based on enactments by its Prime Minister, Council of Ministers, ministers, police and other official bodies. Each party, Hamas and Fatah, has its own legislative bureau (the Diwan) placed within separate ministry of justice that publishes a distinct official gazette. In Gaza, parliament members do hold regular sessions and adopt legislation that applies in Gaza courts, the last of which were the civil code and the law of companies in September 2012. This situation is alarming. If it does not stop in the near future by reaching national conciliation between rivals parties or holding new elections, we will witness the emergence of two de facto political entities.  Each entity would have its own state apparatus: one in Gaza and the other in Ramallah. This could lead to a catastrophic consequence for the Palestine question.

Since 2007, the President has been using his power under Article 43 of the 2003 Basic Law that gives him the right to issue ‘decrees of necessity’ that takes the effect of law. These decrees are called sometimes ‘temporary law’ (temporary until the parliament’s first session). Thus far, the President has issued seventy-two decree-laws since 25 October 2007. While some of these decree-laws meet the emergency requirement of the aforesaid Article 43, others do not fulfil the criteria. Examples of the first type can be found in decrees on money laundering, budget law, preventive security law, and penal law. Amongst the second category are: banking law, sports law, and income tax law. Whatever the opinion regarding such type of enactments might be, no one can determine the exact meaning of ‘emergency,’ notably as Article 43 itself does not define “the emergency that could not be delayed.” The fact remains that the President has assumed the power of the legislator, in addition to his executive power. And the country is being ruled by one man without legislative oversight.

Notwithstanding the significant developments relating to legislative drafting, technical deficiencies can still be found in various enactments. Certain provisions of the 2003 Amended Basic Law lacked to the necessary parliamentary laws to enforce them, including the nationality law and the setting up of administrative courts. Some parliamentary laws, in turn, lacked executive regulations to implement them. Until 2002, out of the sixty PA-adopted laws, only seven regulations were adopted. But even when regulations are enacted, they are often postponed to longer periods than those required by corresponding laws; the regulation of Handicapped Law of 9 August 1999 were passed on 12 April 2004, and the regulations of the Traffic Law of 17 September 2000 were adopted on 13 September 2005.

Other laws prescribed rules but failed to incorporate penalties that sanction those who breach them. The 2004 Child Law stipulates that that basic education is ‘compulsory’ and that the State should take actions to confront school drop-out problems, but no sanction can be found against those who cause a child to drop out of school. Similarly, the 1998 Prisons Law prohibits torturing prisoners by prison officials but no penalty can be found in this law that punishes those who commit torture or degrading treatment. The implantation of a number of laws was indefinitely delayed or even repealed before being enforced, such as Law on the Constitutional Court of 17 February 2006 and Decree-Law on the Court of Criminal Assize of 15 February 2006.

From this discussion, the conclusion can be made that the Palestinian legislative process has become well established. When they started legislating in 1994-1995, the Palestinians had no previous governing experience. Employing common sense, they learned from the legislative history of the country and imported experience from other countries. Should the process have continued without external interventions, Palestine would have offered a model that could be replicated in other transitional States, whether there is a transition from a foreign occupation to independence or from autocratic regimes to democracy. The foregoing proves that, while the technical expertise might be necessary for successful legislative process; the decisive factor remains a political one.

*Professor Oafisheh has a Ph.D. with distinction from the Graduate Institute of International and Development Studies, Geneva. He may be reached at mmqafisheh@gmail.com.