2018-02-01

West Bank

West Bank / position paper

CSOs Demand Abolition and National Dialogue on the Landlord-Tenant Draft Decree-Law

The Civic Coalition for Monitoring Legislation, the Palestinian Human Rights Organizations Council, and the Coalition for Economic and Social Rights, all representatives of dozens of organizations concerned with the promotion and protection of social and economic rights, convened at Al-Haq organization to discuss the Landlords and Tenants Draft Decree-Law for the year 2018, which was ratified by the Council of Ministers in its session no. (186), held on 09/01/2018, and it was then submitted to Mr. President for issuance.

The Palestinian Civil Society Organizations (hereinafter CSOs) stressed that the said decree-law is only one of the many decree-laws to be approved by the Council of Ministers and put into force in complete secrecy and without any consultation whatsoever with the community, particularly in the absence of the Palestinian Legislative Council (hereinafter PLC); the Law Amending the Supreme Constitutional Court Law, the Cybercrime Decree-Law, and the Decree-Law on the High Criminal Court as previous examples. The issuance of such legislation blatantly violates the rights and freedoms of the people as well as the obligations of the Palestinian State under the international human rights treaties Palestine has acceded-to, signaling the insistence of the executive authority to continue working alone and to establish hegemony over the legislative process. This contradicts not only the Basic Law but also the national policies’ agenda (“citizens come first”) and the government’s legislative framework, which stressed the vitality of adopting a participatory approach to the legislative process.

The concerned CSOs reiterated their demands for President Mahmoud Abbas to stop issuing decree-laws once and for all and to take serious action on the ground to put an end to the current human rights situation, which continues to deteriorate despite the international conventions Palestine has acceded-to and the related entitlements. The CSOs also pressed for the immediate rehabilitation of the political system and the restoration of the rule of law, the principle of separation of powers, and the independence of the judiciary. This, of course, requires immediate action to set the atmosphere for holding presidential and legislative elections in realization of the citizens’ right to choose their representatives, and in expression the will of the Palestinian people as the only way out of the crisis besetting the Palestinian political system and putting public rights and freedoms at risk.

The CSOs pointed out that during its ten-year term, the first PLC approved (87) laws, while the decree-laws issued by the President exceeded (200), most of which do not meet the requirement of “unavoidable necessity”, stipulated in Article (43) of the Basic Law, which serves as the legal foundation for the issuance of decree-laws of this kind. “Unavoidable necessity” means that there must be an imminent danger which cannot be remedied through the existing legislation, and hence requires special legislative intervention by the President in order to remove this danger, particularly in the absence of the PLC, given that such legislation shall be submitted to the PLC in its first session to pronounce on it.

Most of the decree-laws issued by the President infringe the provisions of Article (43) of the Amended Basic Law and are at the heart of the PLC’s work. Thus, the PLC’s will was pushed over at the expense of the President's will, in violation of the constitutional principles of the rule of law and the separation of powers. Not to mention that these decree-laws violate in many aspects the rights and freedoms of the people as well as the conventions to which the State of Palestine has acceded. In addition, there is no systematic or clearly established priorities in the process of adopting these decree-laws, and there is a lack of transparency and community participation in the discussion and approval process, as expressed in the statements and comments of the CSOs.

The CSOs participating in the aforementioned meeting demanded that the Landlords and Tenants Draft Decree-Law be rescinded and put forward for community dialogue, that is for an array of reasons, the most prominent of which are as follows:

1. Under the Constitution, issuing such a decree-law requires an “unavoidable necessity” to do so, as stipulated in Article (43) of the Basic Law, which is not valid for the case at hand as the draft has been on the Council of Minister’s agenda for over an entire year. Furthermore, not putting it forward for community discussion is inconsistent with the national policies’ agenda and the government’s legislative framework, which stressed the vitality of adopting a participatory approach to the legislative process, affirming that priority should be given to the restoration of the political system and the presidential and legislative elections, where the PLC can play its role in conducting national consultations on the draft decree-law and then ratifying it.

2. The legislation on landlords and tenants should come as part of a "comprehensive strategy" ensuring the full realization of the right to adequate housing in all its forms, including families living without shelter or in inadequate shelter, particularly in the Gaza Strip, while making sure the government fulfills its obligations by enabling the people to enjoy a fundamental human right to which they are entitled. The said right is considered by the UN Committee on Economic, Social and Cultural Rights to be closely linked to the right to life (document no. 310/71/A), which also conforms with the provisions of Article (23) of the Basic Law, explicitly stating that “every citizen shall have the right to proper housing. The Palestinian National Authority shall secure housing for those who are without shelter”. This can be clearly observed in the provisions of Article (11)/paragraph (1) of the International Covenant on Economic, Social, and Cultural Rights as well, which Palestine has agreed to abide-by without any reservation, and which states that “the States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions”. In addition, the Committee stressed that the right to proper housing, resulting from the right to an adequate standard of living, is of utmost importance not only for the enjoyment of all economic, social, and cultural rights stipulated in the Covenant, but also the entirety of human rights.

3. The Landlords and Tenants Draft Decree-Law constitutes a threat to civil peace and a damage to the essence of social justice.  Instead of creating an equilibrium between property owners and tenants, the draft decree-law is fully biased to the property owners at the expense of the tenants, in addition to the fact that it puts no obligation upon the government to secure proper housing for individuals. Furthermore, the proposed draft decree-law puts the rights of the broader segment of the Palestinian society in jeopardy, particularly those who are classified as being poor or of middle income, knowing that it is a fundamental human right to which they are entitled. Moreover, the decree-law does not take into account the high rates of poverty and unemployment, the decline in minimum wage levels, and the deteriorating economic and social conditions. 

4. The draft decree-law differentiates between tenancy agreements before and after its entry into force. Legal protection of the tenants is entirely removed in the contracts concluded after the enforcement of the proposed decree-law, and the contracts signed prior to its entry into force are all in favor of the property owners as the Council of Ministers is granted the authority to change rental fees on a regular basis every five years. In addition, it allows owners to impose rates of annual increments ranging from 5% to 15% per each year of rent (cumulatively) prior to 1970 and until 1994. Furthermore, any further increments agreed upon between the property owner and the tenant shall be considered as if they were determined by this decree-law. 

5. The draft decree-law greatly expands on the "causes of eviction from the rented property" in comparison to the existing legislation. It states that the violation of any of the terms of the rental agreement between the tenant and the owner is a legitimate reason for eviction. The text is absolute. In other words, the violation of any condition listed in the contract, no matter how minor or trivial, is sufficient grounds for eviction. It also provides that the owner, if he/she is residing outside the country and he/she owns a rented property, they have the right to request the evacuation of the property to reside in it upon their return, provided that the tenant must be informed about this within a minimum period of six months. Even if the landlord owns other properties in which he/she resides, he/she is entitled to request the evacuation of the property, and this is contrary to what is stipulated in the law of landlords and tenants for the year 1953 and its amendments in force, which states that it would be valid to do so if the landlord does not occupy a property in the area in question and wishes to occupy the property himself/herself and the court sees it fit or the judge, the magistrate judge, or the commissioner is convinced that there is another facility which the tenant can use for the very same purpose the property was used for, and as long as it can be obtained for almost the same conditions set for the property in question.

6. An entire section, titled “the construction and demolition of a rented property”, has been developed for enabling property owners to evict tenants and their families from the rented property for reasons which have to do with the demolition of the original property and the construction of a new one instead. Just like the rest of the draft law, this section is adapted from the Jordanian Landlord-Tenant Law No. (14)/2013 without bearing any attention to the fact that the landlord-tenant legislation in Jordan has been subjected to a long series of amendments due to the wide-ranging community opposition demanding that changes be made to the legislation in order to guarantee social justice. It catches one’s attention that in this case the tenant is presented with two options; he/she either returns to the property after the reconstruction is over or he/she demands to be compensated within a period of two months as of the date when the tenant receives an evacuation notification from the property owner by a notary public. If the tenant chooses to return to the (new) property, a new agreement consisting of new conditions shall be forged. If he/she chooses to be compensated and no agreement had been established between the landlord and himself/herself, the compensation shall then be decided-on according to the discretion of the competent court, given that the draft law did not set any legal boundaries concerning the said compensation to ensure that the tenant is being treated on a basis of equality, such as the cost of housing in the same area, leaving the decision solely to the discretion of the court. Thus, the proposed decree-law continue to be fully aligned with the owners’ interests at the expense of the tenants’.

7. The draft decree-law is in conflict with the right to adequate housing, guaranteed by Article (11)/paragraph (1) of the International Covenant on Economic, Social, and Cultural Rights, to which the State of Palestine has unreservedly acceded. This conflict is manifested in many aspects, notably the absence of the government's obligation to protect the right to adequate housing, which is one of its most fundamental obligations. In this regard, the General Comment No. (4): The Right to Adequate Housing of the UN Committee on Economic, Social, and Cultural Rights states, in Article (8) in particular, states, “The States parties should identify certain aspects of the right that must be taken into account for this purpose in any particular context. They include the following: (a) Legal security of tenure. Tenure takes a variety of forms, including rental (public and private) accommodation, cooperative housing, owner-occupation… Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups”.

8. The draft decree-law also contravenes the International Covenant on Economic, Social, and Cultural Rights in that the government's obligations to protect the right to adequate housing are absent, evident in the same Article (8) of the Comment No. (4), under the title “Affordability”, under which “personal or household financial costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised. Steps should be taken by States parties to ensure that the percentage of housing-related costs is, in general, commensurate with income levels. States parties should establish housing subsidies for those unable to obtain affordable housing, as well as forms and levels of housing finance which adequately reflect housing needs. In accordance with the principle of affordability, tenants should be protected by appropriate means against unreasonable rent levels or rent increases”.

9. The demolition and reconstruction of old properties, mentioned above, would drastically change the cultural and heritage sites in various Palestinian cities by removing the old buildings from existence while they represent a cultural heritage that should be preserved. In this regard, the Committee on Economic, Social, and Cultural Rights affirms in Article (8)/paragraph (g) of the General Comment No. (4), “Cultural adequacy. The way housing is constructed, the building materials used and the policies supporting these must appropriately enable the expression of cultural identity and diversity of housing. Activities geared towards development or modernization in the housing sphere should ensure that the cultural dimensions of housing are not sacrificed”. The section on the demolition and reconstruction of rented property, together with other reasons for eviction, and the removal of legal protection for tenants and their families after decree-law enters into force, appear to be the real reasons behind the issuance of the decree-law at hand.

10. The draft decree-law provides that the evacuation of the rented property shall be made following a request submitted by the owner to the "interim relief judge" at the competent court. The expedited approval to accept this request shall be considered an "executive title" holding the power of an enforceable court ruling. This contravenes the Civil and Commercial Procedure Law and the Execution Law. It also seriously infringes the rights and guarantees which the tenant is entitled-to, as well as the effective remedies guaranteed by the Basic Law and the relevant Palestinian legislation and the International Covenant on Economic, Social, and Cultural Rights. The Committee on Economic, Social, and Cultural Rights, in its General Comment No. (4), specifically in Article (17), stressed that the component elements of the right to adequate housing should be consistent with the right to the effective provisions of domestic legal remedies, depending on the legal system. Furthermore, in its General Comment No. (24) /2014, specifically in Article (38), the Committee stressed that “States parties, in the exercise of their duty to protect, should establish effective mechanisms to ensure access to remedies for those whose Covenant rights have been violated”.

11. The decree-law at hand is in itself contradictory. Article (6)/paragraph (1) of the decree-law stipulates that the contracts concluded after the effective date of the provisions of this decree-law shall follow the terms and conditions set in the contracts agreed upon between the owner and the tenant (i.e. pacta sunt servanda). On the other hand, paragraph (2) of the same article contradicts paragraph (1) where it states that if the terms of the contract provide that the contract shall be renewed automatically and/or several times, this means that the renewal shall happen for the same contractual period and only once. Thus, the text in question adopts the rule of pacta sunt servanda and contradicts it at the same time and within the same legal context. In addition, Article (3) stipulates that the tenant is entitled to have the tenancy agreement recognized by all means of recognition in the case of contracts concluded after the entry into force of this decree-law. This very rule is violated in Article (29), which states that in cases where the evacuation of a certain property takes place due to the expiry of the tenancy agreement, where the agreement would have been concluded after this decree-law had entered into force, the contract must be presented “in writing”.

12. It is noted that there are erroneous legal referrals in the text of the draft decree-law; Article (26)/paragraph (1) states that the owner of a leased vacant land – vacant land means a land free of construction- has the right to evacuate it if the conditions stipulated in clauses (d) and (e) of paragraph (1) of Article (9) of this decree-law are met. Note that Article (9) refers to the increase of fees in contracts concluded for purposes other than housing and after the entry into force of this decree-law based on the Consumer Price Index (CPI). Thus, the legal referral addressed in Article (26) has nothing to do with Article (9) whatsoever. It seems that what is intended is reference to paragraphs (d) and (e) of Article 22 of the decree-law, which tackle the reasons for eviction. This means that the decree-law at hand was not subject to sufficient discussion amongst the members of the Council of Ministers before its referral to the President. Not to mention that it was approved behind closed doors and was not presented for an open national dialogue prior to its approval by the Council of Ministers.

Accordingly, the Palestinian CSOs stress the following points in conclusion of their meeting:

1. Demanding President Mahmoud Abbas to suspend the issuance of decree-laws in full, for violating the provisions of the Basic Law by ignoring the condition of “unavoidable necessity” for the constitutional validity of the decree-law, and for violating of the rights recognized in the international conventions to which the State of Palestine has acceded. Also demanding the President to take serious action to stop the ongoing deterioration of the human rights situation on the ground, to begin the restoration of the fractured political system immediately, and to restore the constitutional principles, first and foremost the principle of the rule of law, the principle of separation of powers, and the independence of the judiciary. Not to mention the urgency of starting to set the atmosphere for the presidential and legislative elections as a way out of the crisis besetting the entire political system.

2. Demanding that President Mahmoud Abbas not issue the Draft Decree-Law on Landlords and Tenants, as it does not meet the requirement of “unavoidable necessity” which would justify its issuance under the Constitution, and it violates the provisions of the Basic Law and the International Covenant on Economic, Social, and Cultural Rights to which the State of Palestine has acceded, as well as the relevant Palestinian legislation. Moreover, the draft decree-law in question would have serious implications on civil peace and social justice, especially in light of the deteriorating economic and social conditions. The draft decree-law must be subject to community dialogue which is concerned with building an integrated strategy aimed at realizing the citizens’ right to adequate housing, and ensuring that effective mechanisms, clearly established by the government for protecting this right, are in place. It goes without saying that the said dialogue should take place under the umbrella of an elected PLC.

3. Calling  upon all political parties, members and institutions of the Palestine Liberation Organization, public figures, trade unions, coalitions, and the other actors of the Palestinian civil society to speak up and mobilize action towards demanding an end to the issuance of decree-laws once and for all, in addition to setting the atmosphere for holding elections as the only way out of the Palestinian political crisis, followed by a community discussion on the Landlord-Tenant Draft Decree-Law under the umbrella of the PLC.

4. Carrying- out a wide-ranging advocacy campaign in the peaceful means available. The campaign should cover all of the Palestinian governorates, with a view to explain the implications and risks of the decree-law on civil peace and the broader segment of the Palestinian society, especially the poor and middle-income groups, in case it is approved and enforced. Furthermore, communication must be initiated with the various media and social networking sites to raise awareness amongst citizens about the decree-law at hand and the risks it carries on the essence of social justice and the legislation. Not to mention the vitality of establishing open dialogues with representatives of tenants and landlords to reach a fair and balanced law that aspires to achieve social justice and takes into account the economic and social conditions as well as the income level, reaching a comprehensive strategy for the right to adequate housing and a fair law approved by an elected legislature.

The signatories:

The Civic Coalition for Monitoring Legislation, which includes the following members: Al-Haq, Jerusalem Legal and Human Rights Center (JLAC), Al-Mezan Center For Human Rights, Palestinian Bar Association, Al-Marsad, Palestinian Human Rights Organizations Council, Palestinian Non-Governmental Organizations Network (PNGO), MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession, The Coalition for Accountability and Integrity (AMAN), Institute of Law – Birzeit University, Women’s Technical Affairs Committee (WATC) , Palestinian Independent Trade Union (FIUP), MUWATIN The Palestinian Institute for the Study of Democracy, The Palestinian Initiative for the Promotion of Global Dialogue and Democracy MIFTAH, Palestinian General Union of People with Disability, QADER for Community Development, ADDAMEER Prisoner Support an Human Rights Association, Palestinian Governance Institute, Center for Defense of Liberties and Civil Rights “Hurryyat” , Human Rights and Democracy Media Center SHAMS, Stars of Hope Society, Media Development Center – Birzeit University, and the Palestinian Commission for Human Rights as observer. 

The Palestinian Human Rights Organizations Council, which includes: Al-Haq, ALDAMEER Association for Human Rights,  ADDAMEER Prisoner Support and Human Rights, Al-Mezan Center For Human Rights, Defense for Children International – Palestine Section, BADIL Resource Center for the Palestinian Residency and Refugee Rights, Center for Defense of Liberties and Civil Rights “Hurryyat”, Ramallah Center for Human Rights Studies (RCHRS), Jerusalem Legal and Human Rights Center (JLAC), Palestinian Center for Human Rights, and the Palestinian Commission for Human Rights as observer. 

The Coalition for Economic and Social Rights, which includes: Palestinian Independent Trade Union (FIUP), Al-Marsad, Palestinian National Institute for NGOs, Palestinian Non-Governmental Organizations Network (PNGO), Jawwal and Paltel Workers Union, JDECO Workers Union, NBC Workers Union, Women’s Technical Affairs Committee (WATC), Rights of People with Disability Movement, NAJDEH Association, Ramallah Center for Human Rights Studies (RCHRS), Palestinian Non- Governmental Organization Against Domestic Violence against Women (Al-Muntada), the Palestinian New Federation of Trade Union, UAWC Union of Agricultural Work Committees, QADER for Community Development, Birzeit University Workers Union, Bethlehem University Workers Union, Palestinian Movement, Women Center for Legal Aid and Counselling (WCLAC), Stars of Hope Association, FADOC Palestine, Progressive Labor Union Front Palestine,  Labor Solidarity Group, Labor Unity Group,  Palestinian Working Women Society for Development, Progressive Labor Group, Pulse of Youth forum, MANAJEL Organization, Palestinian Advisory Board for NGO Development, Teachers Creativity Center, Community Media Center, PalThink for Strategic Studies – Gaza, The Freedom Theater – Jenin , Young Men Christian Association (YMCA), The Arab Institution for Sustainable Development, Association of Women Committees For Social Work,  Rural Women’s Development Society, Palestinian Medical Relief Society, Development and Heritage Committee, Young Women’s Christian Association, Physiological Development Association,  Al-Hadaf Cultural Center, Popular Art Center, Financial Sector Workers Union, Union of Palestinian Pharmaceutical Manufacturers (UPPM), Private Health Sector Union, Union for Women Working in the Health Sector, Jerusalem Water Undertaking Workers Union, Tanwer Palestinian Cultural Forum, Fuad Nassar Organization,  Palestinian Bar Association, Burj Alluqluq Social Center Society, Al-Haq, Filastiniyat institute.