4 January، 2016
Civil Law in Gaza, life necessity or enhancing for the division?
If the Rich Abu Muhammad decides to buy the plot of land next to his plot in Ramallah City in the West Bank, he simply can because the law there offers him this
( the neighbor has the priority of owning the land.) But If Abu Muhammad wants to do the same in Gaza, he wouldn’t be able to just because the civil law implemented in Gaza is different than the one implemented in the West Bank.
A Gaza lawyer started his speech by this brief story at one of the courts to explain the problems the internal division and different laws caused as the civil law is implemented in Gaza but not in the West Bank where the judicial provisions is implemented.
Abu Muhammad and others from Palestinians who live in Gaza still refer to the civil law since 2012 which is considered the public Sharia for most of their civil and commercial deals.
The law had passed by the Palestinian legislative council (Hamas bloc) in the Gaza Strip without Mahmoud Abbas approval, and it was implemented in Gaza’s courts while the West Bank still follows the judicial provisions which was put since the Uthmani time. This conflict can be a reason for differences between Gaza and the West Bank regarding procedures and laws.
All the same in front of justice:
The head of the law unit at Al-Mizan Center for Human Rights Mervat Alnahhal said that the civil law implemented in Gaza contains more than 1300 article and includes all the life aspects: commercial, social such as marriage and real estates, copy rights and others. While the explanatory note contains of more than 2000 papers.
Some of the modifications which was done by the legislative council at the civil law in Gaza made a huge change at the law basics. For instance, Article (1) made the judicature only for understanding after it was a main source for law.
Also, the civil law hasn’t cancel the judiciary provisions at article (1301) and hadn’t cancel the previous laws; which means that people still can return to the old laws in case it wasn’t issued in the new civil law. However, any new law should cancel what was before it. but that wasn’t the case here as the new civil law has many problems, not comprehensive , and not complete , according to the head of the law unit at Al-Mizan.
Al-Nahhal said that people’s interests in Gaza and the West Bank will be affected because of implementing this law only in Gaza. For example, at the article (414) which talks about rights of laborers, the article says that the worker has the rights to ask for his right after one year , but he can’t ask for anything after this year. While in the West Bank, worker still has the tight to ask for his rights after three years.
“ we can think of a factory where two workers work, one from Gaza and the second from the West Bank, and that both of them sued the factory claiming their rights. The only difference between the two Palestinians who are supposed to have the same laws as they live in the same country will be their locations. the decision will not be fair.
She also explained that the civil law cancelled what’s called life insurance while it’s still implemented in the West Bank. She assures that ‘’ by applying this law in Gaza far away from the West Bank, we violates the law that says all Palestinians are equal in front of justice, as lawyers don’t commit to the same law at the same cases in Gaza and the West Bank.’’
Lawyer at the Palestinian Center for Human Rights Ahlan Aqraa said that when Hamas government started applying this civil law in Gaza while the West Bank still follow the judicial provisions will not allow Palestinians to use any of these laws as they have different laws, and because each side still doesn’t recognize each other which enhance the division and harm people more and more.
Lawyer and lecturer at the faculty of law, University of Palestine Dr. Anwar Taweel explained in a research paper that the judiciary provisions applied in the West Bank is better than the new civil law as it has 100 compete rules while the new law are divided and incomplete. He also wondered, if it’s the time for having conflicting laws? Will each court have its own law? If a sentence was issued by a Gaza court, will it be implemented in the West Bank?
Helping citizens or enhance the division?
Secretary general at the legislative council in Gaza Dr. Nafez Madhoun said that ‘’ we have started this civil law which was prepared by a previous Fatah-run government which is a law that includes everyone in the society as it was reviewed to match with Islamic sharia and the Palestinian primary law; and it was slightly moderated regarding issues such as life insurances and ban profits.
In 2001, law experts from Palestine, Jordan and Egypt prepared a draft for the civil law and then an explanatory paper was prepared in 2003 and it stayed not unverified until 2012 as the Palestinian legislative in Gaza started passing laws that was agreed on before in till it was finally approved in 2012.
Al-Madhoun said that ‘’ President Mahmoud Abbas told us that he is not going to approve any law issued in Gaza by the legislative council , this is why we returned to article 41 of the primary law which gives us the right to approve any law in case of the president refusal.’’
‘’ at the end, the aim of this law is not the number of law makers, laws should not be connected to the political differences, people’s interest is the priority.’’
Al-Madhoun doesn’t consider issuing a new law in Gaza far away from the West Bank, and without having the approval of all the lawmakers and the president as enhancing the division; specially, at the judiciary side, but he excused this as Gaza always had different laws that the ones in the West Bank which had the Jordanian laws.
He said: ‘’ there is no doubt there will be an effect for having different laws in Gaza and the West Bank, and that we prefer to have united laws, but what we have changed would not have a deep effect.’’
‘’ Abbas refusal to approve laws that were issued in Gaza will not support the Palestinian interest but support business men and investors that he is concerned about.’’
About the possibility of editing some of these laws as some human rights groups asked , Al-Madhoun said that ‘’ we will take into consideration all these notes and we can do edits for the sake of people’s interest.’’
In case we have the Palestinian elections held, and the Palestinian reconciliation was implemented , a lot of cases will be suspended until a new law is issued.
Palestinian lawmaker in the West Bank Sahar Qawasmi said that according to the Palestinian law , the source of legislation is the Palestinian parliament when it is held and the laws should be discussed by special committees and then reviewed by the council and then it should be approved by the president so it can be valid after a period specified by law.
‘’ what’s is happening in Gaza is completely illegal as these meetings are illegal in the first place, and the attorneys for the detained lawmakers are illegal , and it doesn’t have the president approval,’’ she added.
She assures that ‘’ what’s built on false basis, it’s false as well; and if we have reconciliation achieved, this law will be cancelled like other laws that were based on it.’’
Enhancing the division:
Political analyst Talal Okal said that the legislative council meetings in Gaza are ‘’ affiliated meetings.’’ And that when a law is issued at these meetings, it will of course will control people’s behaviors in a different way rather the one in the West Bank, which means that division doesn’t only affect people political life, but also the social one.
Muhammad Daloul, the lawyer and legal consultant, said that the law that was issued by Hamas government violates the Palestinian primary law as there is no law that can be issued in such a way. This is why I can say it’s not legal at all, but it’s a de facto one that we should return to.
Head of the Palestinian syndicate for journalists Tahseen Astal said that media in Palestine has an important role in all the aspects, but we don’t have enough awareness about journalists role in achieving justice, which needs intensive training for journalists as the main focus goes on the political causes rather than social and legal ones. So, we ask that media will raise legal awareness cooperating with human rights groups, specially the laws that are unilaterally issued in Gaza or the West Bank so people can refuse it and boycott it by time.