West Bank and Gaza Strip
Having examined the Draft Decree-Law Amending the Anti-Corruption Law, referred by the Council of Ministers to the ministers in their session no. (189) which was held in Ramallah on 29/01/2018, we would like to clarify the following: the Anti-Corruption Law No. (1) of 2005 was issued in the form of Decree-Law No. (7) of 2010 on 20/06/2010, whose first article states that the name of the Law of Illegal Gains No. (1) of 2005 shall be changed into the Anti-Corruption Law No. (1) of 2005, which was preceded by the issuance of the Anti-Money Laundering Decree-Law No. (9) of 2007. We also note that the Decree-Law No. (18) for the year 2016 on Amending the Anti-Corruption Law was issued on 31/08/2016, was published in the Palestinian gazette, and was abolished one day prior to its entry into force.
It must be said that MUSAWA – The Palestinian Center for the Independence of the Judiciary and the Legal Profession, the Civil Society Organizations (CSOs), and the majority of Palestinian persons working in the legal field share the same views on the issuance of decree-laws in the West Bank (issued by the President) and laws in Gaza (issued by members of the Palestinian Legislative Council in Gaza); they all believe that the issuance of decree-laws must stop in realization of the principle of separation of powers and in fear of the transformation of the political system into a totalitarian regime that prevents citizens from exercising the right to elect their representatives in public authorities, particularly the Legislative Council and presidential office, to which they are entitled by the Constitution. Peaceful rotation of power must be in place without curtailing the right to collective participation in formulating the overall policy of the State, as well as preparing and implementing the joint national plan for sustainable development.
We note that MUSAWA had proposed an amendment to the Anti-Corruption Law No. (1) of 2005 on the 10th of 2013. The proposed amendment was submitted to the duty-bearers, and attached to it was the memorandum of legislative policy for our proposed amendment, In the light of the accession of the State of Palestine to the UN Convention against Corruption for the year 2013 (02/05/2014), which aims at the embodiment, promotion and codification of the measures and requirements necessary to fight corruption more effectively. The State of Palestine confirmed its abidance by the Convention in two official letters which were sent to the UN Secretary-General, the first of which was sent in the year 2005 while the second was sent in the year 2007.
We believe that the proposed decree-law does not respond to any of the most important requirements of the effective control of corruption, and it falls short of addressing the impediments to fighting corruption, as detailed below:
1. The draft decree-law, like the Decree-Law Amending the Law of the State Audit and Administrative Control Bureau, got it wrong when it included the Palestine Liberation Organization (PLO) institutions in its provisions, especially since the PLO is superior to the State of Palestine, and it is assumed that mechanisms and procedures are in place to fight corruption there.
2. The decree-law did not address the structure and institutionalization of the Anti-Corruption Commission; it failed to address its administrative structure as an institution.
3. The decree-law usurped the Legislative Council’s authority to approve/disapprove the appointment of the Head of the Anti-Corruption Commission, which affects its impartiality and warns of its subordination to the executive authority.
4. According to the draft decree-law, senior public officials such as the President of the State, Prime Minister, ministers, Attorney General, Head of the High Judicial Council, and so on are under no obligation to financial disclosure.
5. Not only does the decree-law not realize the principle that perpetrators of corruption crimes shall have no immunity, but it also put the waivers of immunity in the hands of the party responsible for the employment of the accused person, which would violate the principle of non-impunity.
6. Nothing in the draft decree-law affirms that special pardons will not be granted to those convicted of corruption offenses, which would seriously influence the effective fight against corruption and the public's confidence that there is genuine political will to combat it.
7. The draft decree-law borrowed an excerpt from the High Criminal Court Decree-Law, which is still the subject of wide-ranging legal and popular controversy. The borrowed text infringes fair trial guarantees in that it prohibits the accused person from being part of their trial proceedings unless there were proof that their absence in one of the court hearings was due to force majeure. This contravenes fair trial guarantees, which suffice with ‘lawful absence’ as a legitimate reason for the accused person not to attend their hearing.
8. The decree-law went far on realizing the principle of shifting the Burden of Proof, which contradicts the rule that an accused person is innocent until proven guilty, in addition to going against the fact that the Public Prosecution must prove that the accused person is guilty of the charge pressed against him/her, and that the accused person shall not be burdened with proving his/her innocence. All of this represents a violation of the provisions of the Basic Law as well as the existing evidentiary rules, under which the principle of ‘presumption of innocence unless rebutting evidence proves otherwise’ is chosen over ‘shifting the burden of proof to the accused person’.
9. The draft decree-law at hand overlooked the fact that foreign public officials must be held accountable for crimes of active and passive bribery.
10. The draft decree-law is oblivious to the criminalization of corruption in the private sector in general and in particular the criminalization of corruption in private companies that run a public facility.
11. The draft decree-law failed to exempt the CSOs’ boards of directors from the obligation to submit financial disclosure statements as they are not public servants, especially since CSOs abide by the provisions of the Anti-Corruption Law, which would negatively affect the role of these organizations, not to mention that it violates the provisions of the UN Convention against Corruption, which addresses public officials on the matter of financial disclosure.
12. The draft decree-law erred in adding the crimes of forgery and counterfeiting under the umbrella of corruption crimes without setting any standards or boundaries, although the UN Convention against Corruption removes them from the umbrella of corruption crimes.
13. The draft is mistaken not to explicitly consider the failure to implement court rulings a corruption crime, even if it falls within the same scope as the crimes related to the duties and functions of a certain post, in accordance with the applicable Penal Code.
14. The draft decree-law in question has failed to explicitly stipulate the obligation of the Anti-Corruption Commission to inform the complainant about the action taken in response to their complaint, and that they are entitled to challenge the decision of the Commission, especially since the decision to keep complaints/reports must be substantiated and subject to judicial challenge.
15. The draft decree-law erred in that it forbids those who do not file their complaint directly to the Commission from the protection they are entitled-to.
16. The appendix of salary scales, grades, raises, allowances, transportation fees guarantees privileges that do not correspond to public resources. In addition, the appendix does not include the Head of the Commission as part of it.
In the light of these gaps and shortcomings, we call on the government to put the draft for a social debate and not to limit the discussion to the ministers, and to make sure that it conforms with the requirements of reconciliation, including the holding of general legislative and presidential elections followed by the referral of any new decree-law or one that amends existing legislation to the elected Legislative Council, in its capacity as the competent authority for legislation, especially in light of the failure to adhere to Article (43) of the Basic Law.
Issued on 12/02/2018