General Practice Law at Palestine
General practice law" in Palestine is exceptionally complex due to its unique political and historical circumstances. There isn't a single, unified legal system across all Palestinian territories, and lawyers often have to navigate multiple layers of law.
Here's a breakdown of the sources of law and the general nature of legal practice in Palestine:
1. Historical Layers of Law (The "Legal Onion"):
The Palestinian legal system is a fascinating and challenging blend, reflecting centuries of different rulers and administrations. Lawyers in Palestine often refer to this as a "legal onion" due to the layers of legal systems that remain in effect:
Ottoman Law (pre-1917): Many laws from the Ottoman Empire, which ruled Palestine for centuries, are still technically in force, particularly in areas like land law (e.g., the Ottoman Land Code of 1858).
British Mandate Law (1917-1948): During the British Mandate period, the British enacted numerous laws, regulations, and orders, many of which continued to apply after 1948. Elements of Anglo-Saxon common law principles, particularly regarding judicial precedents, were introduced.
Jordanian Law (West Bank, 1948-1967): After the 1948 Arab-Israeli War, the West Bank (excluding East Jerusalem) came under Jordanian control. Jordanian laws enacted during this period remain largely in force in the West Bank.
Egyptian Law (Gaza Strip, 1948-1967): The Gaza Strip was administered by Egypt, and thus Egyptian laws and British Mandate laws were prevalent there. This led to a significant divergence in legal systems between the West Bank and Gaza.
Israeli Military Orders (post-1967 Occupation): Since the 1967 Israeli occupation, Israel has issued thousands of military orders in the West Bank and Gaza Strip, significantly impacting various aspects of life, including legal and administrative matters. These military orders operate in parallel with and often override pre-existing laws.
Palestinian Authority (PA) Legislation (post-1994 Oslo Accords): With the establishment of the Palestinian Authority (PA) following the Oslo Accords, the PA began enacting its own laws and decrees. The Palestinian Basic Law (2002, amended in 2003 and 2005) serves as a de facto constitution for the Palestinian Authority-controlled areas (Areas A and B of the West Bank and, until 2007, the Gaza Strip). This Basic Law establishes fundamental rights, separation of powers, and the framework for the PA's legal system.
It declares that Islamic Shari'a principles shall be a principal source of legislation, reflecting the majority Muslim population.
It also maintains the validity of pre-1967 laws unless superseded by new PA legislation.
2. Divergence Between West Bank and Gaza Strip:
Due to the different historical administrations, the legal systems in the West Bank and Gaza Strip have developed distinct characteristics. While the PA strives for legal harmonization, the political division (with Hamas controlling Gaza since 2007) has exacerbated this divergence. Lawyers often specialize in one region due to these differences.
3. Types of Law and Courts:
Palestinian legal practice covers a broad range of areas, similar to "general practice" elsewhere, but with the added layers of complexity:
Civil Law: This includes areas such as:
Contracts: Disputes arising from agreements.
Property Law: Given the complex history of land ownership and Israeli settlement policies, property law (often still governed by old Ottoman and Jordanian laws, alongside PA regulations) is a highly significant and contentious area.
Torts: Personal injury, negligence, and other civil wrongs.
Commercial Law: Business transactions, company formation, intellectual property (though less developed).
Labor Law: Employment disputes and worker rights.
Personal Status Law: This is largely governed by religious courts:
Sharia Courts: For Muslims, these courts handle matters like marriage, divorce, inheritance, child custody, and endowments (waqf), based on Islamic Shari'a principles.
Religious Courts for Christians: Various Christian denominations have their own ecclesiastical courts that handle personal status matters for their communities.
Criminal Law: The Palestinian Authority operates its own criminal justice system with a Penal Code. This deals with crimes ranging from minor offenses to serious felonies.
Administrative Law: This governs the relationship between individuals and government bodies, including challenges to administrative decisions.
Public Law/Constitutional Law: Dealing with the Basic Law, human rights, and the powers of the PA.
International Law: Lawyers often engage with international human rights law and international humanitarian law, particularly in cases related to the Israeli occupation, human rights violations, and international accountability.
4. The Judicial System:
The Palestinian judiciary is structured with:
Magistrate Courts: Courts of first instance for minor civil and criminal cases.
Courts of First Instance: General jurisdiction courts for more significant civil and criminal matters.
Courts of Appeal: Hear appeals from the Courts of First Instance.
Supreme Court (High Court of Justice/Cassation Court): The highest court, hearing appeals on points of law and reviewing administrative decisions.
Specialized Courts: Including anti-corruption courts and military courts (for security forces personnel).
5. Challenges for Legal Practice:
Fragmentation and Overlapping Jurisdictions: The existence of multiple legal systems and the fragmented nature of governance (PA control in Areas A/B, Israeli control in Area C and East Jerusalem, Hamas control in Gaza) create significant jurisdictional and enforcement challenges.
Political Interference: The judiciary, despite the Basic Law's provisions for independence, has faced challenges regarding political interference and executive influence.
Enforcement of Judgments: Enforcing court judgments, particularly across different areas of control, can be difficult.
Limited Resources: The Palestinian legal system often faces resource constraints.
Israeli Military Orders: Lawyers frequently have to contend with Israeli military orders that can override Palestinian law in certain areas or impact the movement and access of clients and legal professionals.
Access to Justice: The complexities of the legal system, coupled with issues of movement restrictions and economic hardship, can impede access to justice for many Palestinians.
In essence, general practice law in Palestine requires not only a deep understanding of multiple historical and contemporary legal sources but also a nuanced appreciation of the political realities and the challenges inherent in a system under occupation and internal division.
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