The Palestinian Center For Human Rights (PCHR): Introduction: On 05 March 2020, the Palestinian President issued a decree declaring a 30-day state of emergency to combat the spread of coronavirus (COVID-19) in Palestine. The Presidential decree bestowed upon the Prime Minister and relevant authorities the powers to “take all necessary measures to combat the threat of COVID-19, protect public health and achieve security and stability.” In suit, the Prime Minister announced several measures that included shutting educational institutions and other official institutions; restrictions on the freedoms of movement and expression; restrictions relevant to mandatory quarantine; and other relevant restrictions.
Through this paper, the Palestinian Centre for Human Rights (PCHR) endeavors to demonstrate the Extraordinary powers the state of emergency grants the executive authorities, and the freedoms and rights that cannot be infringed upon during this period. The argument presented herein is based upon Palestine’s international obligations under human rights treaties, particularly the 1966 International Covenant on Civil and Political Rights (ICCPR); and the 2003 Palestinian Basic Law (PBL), particularly Title Seven – State of Emergency Provisions. In this regard, PCHR reiterates a general principle that permits the use of Extraordinary powers in the narrowest terms, without abuse against political opposition or to harm citizens or their properties.
This paper intends to raise awareness among the public, governmental and executive bodies of the powers and restrictions entailed in the state of emergency through answers to the following questions:
- What is a state of emergency?
It is an exceptional state declared by the competent authorities in the State when a threat is present on the security of the nation, allowing the state, in the narrowest terms, to enforce measures that may not necessarily fulfill its human rights obligations.
- What are the conditions for a state of emergency under ICCPR and PBL?
- To be in accordance with the laws regulating the state of emergency (Title Severn of PBL);
- Does not exceed 30 days, renewable with the approval of 2 thirds of the Palestinian Legislative Council (PLC)[1]
NB: The Palestinian Presidents’ acts in place of the PLC after its dissolution, as per Article 43 of PBL.
- The decree declaring a state of emergency shall state its purpose, the region to which it applies and its duration[2];
- The Legislative Council shall have the right to review all or some of the procedures and measures adopted during the state of emergency, at the first session convened after the declaration of the state of emergency or in the extension session, whichever comes earlier, and to conduct the necessary interpellation in this regard.[3]
- It is not allowed to impose restrictions on fundamental rights and freedoms when declaring a state of emergency except to the extent necessary to fulfill the purpose stated in the decree declaring the state of emergency.[4]
- Any detention must be reviewed by the Attorney General within 15 days of the detention date, and the detainee have the right to appoint a lawyer.[5]
- To be in in the narrowest scope in terms of space, time and exceptional procedures.
- Not to take measures that contradict with Palestine’s other international obligations.
- ICCPR States Parties shall be informed of the causes, duration and location of the state of emergency.
- Do not involve any discrimination on grounds of race, color, gender, language, religion or social origin.
- These measures shall not infringe upon certain rights, notably:
-
- Right to life (with the exception of the death sentence case issued after a fair trial by a competent court that meets the proper procedures, emphasizing PCHR’s absolute rejection of this inhuman punishment).
- Right not to be tortured.
- Right not to be imprisoned merely for failure to fulfill a contractual obligation (Example: A contractor is imprisoned because they have not constructed or repaired a building, after having an agreement with his owner).
- Right to enjoy guarantees of non-retroactivity of crimes and penalties, and there is no crime and no punishment except those enshrined in the law. (A person shall only be punished or criminalized in accordance with a published and enforced law).
- Right to recognize legal personality (a person is recognized before the official authorities in carrying out any legal behavior such as contracting, litigation, and obtaining official documents).
III. What are the most prominent rights that may be restricted and the scope of this restriction?
- The right to proper penal procedures: Powers and Restrictions.
- Exceptional powers granted in the state of emergency
- Detention powers without a judicial warrant;
- The power to arrest and search without a judicial warrant
- Restrictions on powers:
- Detention decisions are reviewed by the Attorney General within 15 days of its occurrence.
- The arrest or search procedure should be absolutely necessary to achieve the declared goal in the state of emergency.
- These powers shall not be used to suppress opposition or freedoms that are not relevant to the state of emergency.
- The detained person has the right to appoint a lawyer of their choice to attend the procedures.
- Detainees should be protected from getting infected with the coronavirus.
- Right to movement: powers and restrictions.
- Extraordinary powers granted in the state of emergency
- Prohibition of movement in Palestine (between governorates) or between it and other countries.
- Imposing curfews and force people to stay at home as required by preventive measures against the spread of the pandemic.
- Detention of anyone who violates these procedures, in case of extreme necessity.
- Powers and Restrictions:
- The restriction must be by a clear decision or law, that was published to the public.
- Enable the public to obtain their needs of food, drink, medicine in addition to other living necessities.
- Non-discrimination in imposing procedures, except for the categories whose movement is essential to meet the needs of the public (for example: health workers, security personnel, workers in bakeries, fuel stations, and foodstuff merchants)
- The right to freedom of expression: limitations and powers
- Extraordinary powers authorized in the state of emergency
- Impose restrictions on freedom of expression, based on the public health protection standard.
- Prevent the dissemination of certain information even if it is correct, and its dissemination is permitted in non-emergency, e.g. ban on publishing names of persons infected with COVID-19.
- Detainment of anyone who violates these procedures, in the case of extreme necessity.
- Limitations on Powers:
- Restrictions shall be by a clear decree or law, published to the public.
- No distinction should be made in applying these restrictions on any grounds.
- Restrictions should not apply to well-intended criticism and opinions on governmental measures, e.g. well-intended criticism means that the person does not belong to anti-state actors and does not aim to provoke riots.
- The right to peaceful assembly: limitations and powers
- Extraordinary powers authorized in the state of emergency
- Prohibition of all peaceful assemblies, whether in public or private places, open or closed, as necessary to combat the spread of the pandemic.
- Prohibition of calls for peaceful assemblies, whatever their purpose.
- Breaking up peaceful assemblies, even with proportionate force, and detaining the violators.
- Limitations on Powers:
- Any decision to restrict shall be by a clear decree or law, published to the public.
- No distinction should be made in applying these restrictions on any grounds.
- Right to property
- Private property shall be protected and may not be expropriated except in the public interest and for fair compensation in accordance with the law or pursuant to a judicial ruling.[6]
- There are no provisions in international or domestic law regarding the permissibility of the temporary use of private property. Accordingly, and as per Article 21 od PBL, general rules, and international standards that protect the right to property and its importance for the national economy, the measures to control any private property for the purposes of preventive quarantine require the following:
- The facility should not be used for housing.
- The use of the facility should be in agreement with its owner as far as possible.
- The use of the facility should be in exchange for fair compensation.
- The use of the facility should not be intended to harm the owner.
- The government shall be responsible for compensating the owner for any damage inflicted in the facility.
- The facility should be completely sterilized before it is returned to the owner.
Public Document
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[1] Article 110 of the 2003 Palestinian Basic Law
[2] Ibid.
[3] Ibid.
[4] Article 111 of the 2003 Palestinian Basic Law
[5] Article 112 of the 2003 Palestinian Basic Law
[6] Article 21 of the 2003 Palestinian Basic Law
