2020-05-05

West Bank and Gaza Strip

West Bank / Announcement / position paper

Position Paper

Announcing A New State of Emergency Means an Approach to Make it Permanent

Before deliberating on the issuance of a presidential decree to declare a state of emergency to respond to the Coronavirus pandemic, which has not been considered by many countries around the world, and based on our national and legal responsibility, we shared our view that there is numerous legislation in force that meet the requirements of the pandemic, including but not limited to the Public Health Act, the Civil Defense Act, the Penal Code and the Anti-Corruption Law, which contain binding provisions that enable the Government to take all necessary measures to confront the pandemic. In addition, we emphasized that the constitutional legislature had taken this understanding into account in the drafting of the Palestinian Basic Law, which provides that declaring a state of emergency can be only be considered in exceptional cases and that it could only be extended or resorted to if catastrophes, similar to the current pandemic, could no longer be faced using the legislative means and instruments in force. Given the risks posed by this exceptional authorization to human rights, the principle of the separation of powers, the rules of good governance, security, and community stability, the Constitutional Legislature has set the duration of the state of emergency at a maximum of 60 days and has restricted it to measures for fear that the executive branch might abuse its powers and lead the country to an epidemic of lawlessness. The most prominent of these measures is restricting the power of the executive authority to declare a state of emergency for 30 days instead of 60, requiring a two-thirds majority of the members of the Legislative Council vote in favor of the extension. Since the Constitutional Legislature does not exaggerate, and since the Basic Law prevails over all legislation, regardless of their titles or legislative value, any legislation or action taken by any of the three authorities must invoke the Basic Law, without exceeding, violating, or interpreting it contrary to its philosophy and provisions.

Based on these facts, which are shared by constitutional jurists and the leaders of the participatory civilian state, we have demanded not to declare a state of emergency, however, the regime has not considered our demands, although it was widely endorsed by the community. At the end of 30 days, we warned of the consequences of the executive authority’s departure from its jurisdiction and powers by resorting to legal instruments impressible according to the Basic Law. However, the regime did not respond to this request either, instead, it insisted on the realization of acquisition and the usurpation of the powers of the legislator, and extended the state of emergency for another 30 days. In addition, the executive authority abused the state of emergency to serve objectives that go beyond the requirements of combating the pandemic, which is alleged to be the sole reason for announcing the state of emergency, as it has issued a series of decree-laws that strike at the very foundation of the political system and grant unlawful and broad privileges to a limited group of citizens, such as the decree-law amending the Law on the Remuneration and Salaries of Legislative Council Members, members of the Government and Governors, and the decree-law amending the general retirement law, which turns the Office of the President into a shadow government that rules the prime minister and the members of the government, which we published our opinion about.

Before the end of the state of emergency, which was extended in violation of the Basic Law, we advised the executive authority to address the internal situation after the end of the state of emergency and pointed out the need to review the legislation in force, stressing that they are sufficient to meet the requirements of combating the pandemic, especially in light of the executive authority’s claim of balancing health and economic requirements. We also outlined the legal scenarios available to the executive authority and warned against the serious dangers that would inevitably result from declaring a new state of emergency, which goes beyond the provisions of the Basic Law and will of the constitutional legislator, and disrespects the Declaration of Independence and the parameters and characteristics of the political system agreed upon in the Basic Law, which, like any other law, does not allow to declare a new state of emergency for the same reason. What is striking and dangerous in this regard, is that the declaration of a new state of emergency reflects the orientation and approach of establishing the state of emergency as a permanent state, as it would enable the executive authority to extend the state of emergency to another thirty days, then re-announce it, then extend it, and so on.

We believe that the aforementioned facts rescind the social contract represented by the declaration of independence issued in 1988, which embodied the choice of the Palestinian people for a democratic system of government, under which the internationally recognized constitutional rights, freedoms, and principles, including the rule of law, separation of powers, accountability, transparency, control, and periodic elections are safeguarded. By ignoring the Basic Law and its values, this declaration undermines the foundation of the political system, the state of law and good governance, violates Palestine's international obligations and the rights of its citizens, endangers civil peace and community security, and proclaims that the country is governed by a police regime that holds all resources and powers, as it considered the decree-law No. 5 of 2020 its sole reference, noting that this decree-law turned the Presidential Office into an institution, granted it the powers of the government at all internal and international levels, removed it from the Control Department, and put it under the administration of President. 

Accordingly, we believe that the declaration of a new state of emergency puts the country in a dilemma that would result in creating a conflict environment, rather than a unified and supportive environment, and in undermining, if not paralyzing, the Palestinian people's ability to confront the occupation schemes of annexation, expansion, and aggression, as well as paving the way for granting few people unlawful and unjustified privileges at the expense of the vast majority's sustenance and dignity. The decree on the declaration of a state of emergency, the text of which has not been published yet, however, its content was officially announced, is an ominous action that requires a unanimous demand to compel the executive authority to repeal the decree, the decree-aw No. 5 of 2020, and other discriminatory decree-laws, to stop enacting decree-laws, and to hold general elections, as the only alternative to preserve the legitimacy and existence of the Palestinian political system and the unity and security of the society.

Issued on 5/5/2020

MUSAWA