While businesspeople want to conduct business and are less concerned with the legal intricacies involved in doing business, lawyers are more concerned with proper appellation, codes and structures. Since negotiations between the Palestinian Liberation Organization and Israel, commenced in 1993, changes have been taking place in almost every aspect of day-to-day life for the Palestinians. Therefore, the nomenclature, the laws and the formalities change along with the latest current events, and they are not always immediately disseminated. Thus, there is a real risk of uncertainty in the Palestinian Authority, although policy makers assure continuity and consistency in the transfer of powers and subsequent law making as the Palestinian Authority takes control.
The primary documents to which Israel and the Palestinian Authority are parties, which affect the changing status and nature of the Palestinian Authority, are the Declaration of Principles on Interim Self-Government Arrangements, signed in Washington, DC on September 13, 1993 (hereinafter, the DoP); the Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, signed in Washington, DC on September 28, 1995 (hereinafter, Oslo 2); and the Protocol on Economic Relations, signed in Paris, France on April 29, 1994 (hereinafter, the Paris Protocol). There have been numerous other forum discussions, official and non-official committee meetings and conferences at which papers were presented and adopted which have some bearing on the changes taking place in the Palestinian Authority.
Certain geographical areas and substantive areas of law have been delineated as within the control of the Palestinian Authority. Not all areas of law that are within the substantive jurisdiction of the Palestinian Authority may be applied or enforced in all areas under its geographical control. The various documents defining the process of moving to self-rule have delineated areas as follows: Area A covers urban areas which have autonomy, such as Gaza and Jericho. The Palestinian Authority is responsible for the administration and enforcement of laws on all levels in Area A, including civilian and police power. Area B covers rural areas in which the Palestinian Authority has civilian jurisdiction but no police powers. Area C includes Jewish settlements, military areas and open areas. All powers and authority in Area C are administered and enforced by the Civil Administration. Certain of the agreements defining the transfer of powers to the Palestinian Authority have provided interior measures until a final resolution is reached. For example, special provisions in Oslo 2 allow for the transfer of taxes collected from Palestinians located in Area C by the Civil Administration to the Palestinian Authority.
A brief legal history of the area is essential to understanding the complexity of the issues facing the Palestinian Authority in gaining a unified system of laws. There are several sources of law that control various legal matters in different parts of territory known as Gaza and the West Bank. These sources include Ottoman civil law, which was applied to the Palestinian territories during the Ottoman Empire's rule between 1517 and 1917. The Ottoman civil code, Al Magella, is still the applicable rule of law in the West Bank and Gaza with regard to matters in which no subsequent laws have been adopted by any later controlling authority.
The British occupied Mandatory Palestine from 1917 until Israeli establishment in 1948, during which time its occupation was formalized as a Mandate under the direction of the League of Nations (from 1922 to 1948). Many aspects of commercial law, among other areas, were subject to decrees issued by the British High Commissioner during the Mandatory Period. Mandatory law and British legal principles are still widely applicable in Gaza today as a result of the lack of any subsequent legal authority until recently. In contrast, the West Bank has replaced most of the British Mandate laws with Jordanian laws.
Since in 1948, the control and administration of the areas of Gaza and the West Bank have been diverse and not uniform. This has resulted in a dichotomous legal system, which is being addressed by the Palestinian Authority.
Following Israel's establishment in 1948, Egypt administered the Gaza Strip until June 1967. Egypt never made any territorial claims over the Gaza Strip and merely undertook its administration. During the Egyptian administration, Egypt applied certain administrative regulations (hereinafter, the Egyptian Regulations) in order to implement the law, which were issued by the General Governor and Administrative Governor. While a legislative body was created called the Palestine Legislative Council, British Mandatory law remained mainly intact.
In contrast to the Gaza Strip, Jordan formally annexed the West Bank in April of 1950. Thus, the applicable law in the area up until that time was modified and replaced as necessary to bring it in accordance to Jordanian law. Since June 1967, the West Bank has been controlled by Israel, and administered by the Israeli Defense Forces and, specifically, by the Israeli Civil Administration since 1981. Jordanian law continues to be applied in the West Bank, as modified by military orders issued by the Israeli military or Civil Administration (hereinafter, Military Orders). In the absence of Jordanian law, reference is still made to Ottoman civil law.
The Israeli Defense Forces has administered the Gaza Strip and the West Bank since June 1967. With the exception of Israel's formal annexation of East Jerusalem, the territories under its administration continued to be controlled by the laws previously applicable to the specific area, as modified by Military Orders issued by the Israeli military and relating primarily to matters of security. Areas that have obtained autonomy under the ambit of the Palestinian Authority apply laws enacted by the Palestinian Authority, and in matters where no new law has been enacted they continue to apply the rules of law that were applicable to those areas prior to autonomy. Thus, in the autonomous West Bank town of Jericho, laws enacted by the Palestinian Authority are applicable, but in their absence Jordanian law, modified by Military Orders (if such orders were not revoked by the Palestinian Authority) is applied. Similarly, in Gaza, in the absence of laws enacted by the Palestinian Authority, British Mandatory law, as modified by Egyptian Regulations and by Military Orders (if such Military Orders have not been revoked by the Palestinian Authority), is applied.
The Palestinian Authority is currently in the process of adopting a temporary Basic Law (Draft of the Basic Law for the Palestinian National Authority in the Transitional Period - The First Reading). The law was drafted by a team of lawyers to serve as a provisional constitution for the Palestine State in formation. The Basic Law has passed the first reading and is yet to be put into final form. It can only take effect, however, after a joint Palestinian-Israel committee determines it does not exceed the PA's rights under the Agreement on the Gaza Strip and the Jericho Area. So far, the Basic law contemplates a broad array of citizen rights and establishes a three-pillar system of a reformed judiciary with extensive power as well as provisions for the legislative and the executive bodies. Its norms are superior to legislation or administrative decrees, and it also incorporates the most important treaties on international human rights.
Currently, there are still two court systems in the Palestinian Authority. One system is in effect in Gaza and the other in the West Bank.
In Gaza, the judiciary is divided into three levels, in accordance with the system installed during the British Mandatory period: the Magistrates Courts, the Central Courts and the High Court.
The Magistrates Courts are authorized to decide civil suits where the amount of the dispute is valued at less than US$ 8,300. The Central Court hears civil suits where the amount in controversy exceeds US$ 8,300. Matters relating to the enforcement of Magistrates Court judgments are submitted to the jurisdiction of the Central Courts.
The High Court sits in two capacities, either as the High Court of Appeals or the High Court of Justice. In its capacity as the High Court of Appeals, the High Court hears appeals from decisions issued by the Magistrates and Central Courts. In its capacity as the High Court of Justice, the High Court hears cases that challenge laws or regulations as being contrary to public policy. It also hears administrative law matters in disputes involving administrative agency decisions, orders or regulations.
Judgments obtained in Gaza are valid for a period of fifteen years. Enforcement of judgments that are not voluntarily paid is carried out by the Department of Execution, which issues an order to the judgment debtor to pay and is enforced by the police.
The judiciary in autonomous areas of the West Bank is in the process of becoming fully functional. In other areas of the West Bank, the judiciary is less than fully functional.
The judicial system for the West Bank is modeled after the Jordanian system and is composed of Magistrates Courts, Courts of First Instance, Appeals Courts and a Court of Cassation. The Magistrates Courts have jurisdiction to hear cases involving claimed disputes not exceeding 250 Jordanian Dinars. Cases involving claims exceeding that amount are submitted to the jurisdiction of the Courts of First Instance. The Courts of First Instance have some limited appellate review functions over decisions of the Magistrates Courts. Appeals from judgments of the Courts of First Instance and the Magistrates Courts are heard by the Court of Appeals.
While the judicial system ostensibly calls for a Court of Cassation, a Supreme Court, none has operated in the West Bank since 1967. Therefore, decisions of the Appeals Courts are final and not subject to appeal.
The lack of a court of last resort, the long delays involved in scheduling court hearings as well as the lack of a police force capable of executing judgments (except in the autonomy areas), are the primary reasons stated for the reportedly high out of court settlement rate of cases filed in the trial courts in the West Bank.
Enforcement of court decisions in the West Bank is regulated by the Jordanian Enforcement Law of 1952 and the Jordanian Enforcement of Foreign Decisions Law of 1952. Before the establishment of a Palestinian police force in the West Bank, court decisions of civil courts were practically unenforceable. The introduction of Palestinian police following the re-deployment of Israeli Military forces is believed to gradually increase the likelihood that decisions will be enforced.
The enforcement of foreign judgments in the West Bank under the Jordanian Law of 1952 remains generally problematic as the law gives the local courts the discretion to refuse to enforce the foreign decision if the foreign country's laws do not reciprocate. Also, foreign decisions relating to land disputes are generally not enforceable.
As of January 19992, the Palestinian judiciary consisted of 65 judges, 30 in the Gaza Strip and 35 in the West Bank. 12 Judges sit on the High Court, nine of whom are based in the Gaza Strip, while the remaining three are in the West Bank. A further 21 judges preside over cases in the two district courts and six magistrate courts in the Gaza Strip, while 32 judges preside over similar cases in the West Bank. In the Gaza Strip, for example, more than 75,000 cases were processed in Magistrate (or trial level) courts in 1998 - an estimated 61,000 criminal cases and 14,000 civil cases. Members of the judiciary regularly complain about the low number of judges relative to the number of cases.
Both in Gaza and in the West Bank, alternative dispute resolution is widely used for resolving commercial and business disputes. During a period of political and legal instability, alternative dispute resolution mechanisms were thought to provide greater convenience and predictability than the court system. Mechanisms presently used are arbitration, mediation and other less common forms of dispute resolution. Arbitration laws exist both in Gaza (Palestine Arbitration Ordinance of 1929) and in the West Bank (Jordanian Law of Arbitration of 1953) providing for enforcement of arbitration agreements and awards. In Gaza, institutionalized arbitration is available through the Palestinian Chamber of Commerce.
© 2000 Mena Report (www.menareport.com)