Rule of Law and Good Governance
Critical Ingredients for Palestinian Statehood
By Boram Kim and Geoffrey D. Prewitt
As globally acknowledged, rule of law is a precondition for sustainable peace and development. It is also recognised that security and justice are essential components in achieving the rule of law. These variables - amongst others - comprise the basic premise of good governance. Governance is not interchangeable with government. As defined by UNDP, “Governance is the exercise of political, economic and administrative authority to manage [territorial] affairs. It [comprises] the complex mechanisms, processes and institutions through which citizens and groups articulate their interests, exercise their legal rights and obligations, and mediate their differences.” From this viewpoint, governance is understood to include a broad spectrum of issues, among which are the creation of representative and transparent public institutions, civil society engagement, and broad consensus-building within society.
In brief, governance in the occupied Palestinian territory (oPt) is marred, at the base, by a lack of autonomy brought about by the prolonged occupation. The combined external impediments - historical, structural, and geographical, etc. - and internal uncertainties - societal fragmentation, limited civic engagement, paralysis of the legislative body, etc. - have, singly and collectively, led to a governance dilemma. One of the causal outcomes of this dilemma has been a weakened justice sector and, subsequently, a fragile legal system.
In a series of public opinion polls, Palestinians have consistently singled out Israeli occupation as the major threat to their security and the main impediment to access to justice.i The United Nations Special Rapporteur on the situation of human rights in the oPt, John Dugard, has regularly reported on breaches of international law and a number of international humanitarian law and human rights violations in the context of continued occupation, including those related to military incursions, settlements, obstacles to freedom of movement, the separation Wall and the demolition of houses.ii Some of these findings have their legal basis in the 2004 decision of the International Court of Justice in relation to the construction of the Wall in the West Bank.iii The Special Rapporteur has also insisted that future peace negotiations and post-conflict recovery should be guided by international law. This, in turn, warrants a thorough understanding of international law among the lawyers and legal advisers involved in peace negotiations and peace building.
The occupation does not excuse that there are numerous internal dynamics within the oPt that continue to weaken the judicial sector. These include, for example, fragmented jurisdictions and blurred mandates of judicial and prosecutorial institutions; absence of a fully functioning legislature; different legal frameworks in the West Bank and Gaza; limited capacity of judicial entities; and restricted access to justice at local and grassroots levels. Although many of these concerns are indirect causes of the occupation, several fall within the purview of the PNA and can continue to be improved.
It is encouraging to note that the recent Programme of the 13th Government (August 2009) seeks to redress all these matters in its plan entitled “Ending the Occupation, Establishing the State.” This includes a clear description of sector priorities, policies, and programmes. In addition, in the foreword, Prime Minister Fayyad directly stresses, “The work of our government will be guided by international law and the precepts of good governance, as we work to ensure the fulfillment of our commitments toward our citizens….”
Given deliberate, but gradual improvements in advancing the rule of law in the oPt, the development process of the justice sector should be accompanied by national ownership and social acceptance. Ordinary people who rely on the services provided by legal professionals often tend to feel distant from the courts and lawyers, for example, despite being main beneficiaries. In this context, fulfilling justice does not only mean dealing with laws and legal professionals, but also making the population understand what its legal rights and obligations are as well as those of the government by interacting vibrantly with them. In doing so, inclusion of socio-legal aspects is essential to trickle down the impact to the people at the grassroots level and to strengthen a link between a wide range of justice-service providers and the citizens, including those from the under-served communities, in particular, women, children, youth, the elderly, and the population with special needs.
Justice is about balance. The former UN Secretary-General Kofi Annan noted in one of his speeches during his tenure: “Today’s real borders are not between nations, but between powerful and powerless, free and fettered, privileged and humiliated.” To achieve this balance in the oPt, continued cooperation and coordination among key judicial institutions, continued comprehensive review of the legal and regulatory framework, including legal harmonisation, and the development of a robust legal aid mechanism that guarantees the right to justice and protection for all citizens are indispensable. And these efforts must be coupled with coordinated knowledge and resources by the international community under the guidance of the PNA.
On the path to statehood, all citizens of the occupied Palestinian territory and all sectors of the society deserve equal protection under the law and unfettered access to justice. Many question how. Many point out that the occupation hinders achieving good intentions. However, let us remain hopeful, believing that a real change comes from the inside - inside each individual and inside each society. It was Nelson Mandela of South Africa who uttered the famous words, “Let there be justice for all. Let there be peace for all. Let there be work, bread, water and salt for all. Let each know that for each the body, the mind and the soul have been freed to fulfill themselves.”
Geoffrey D. Prewitt is Team Leader for the Governance and Poverty Reduction Teams as well as the Senior Governance Advisor, UNDP/PAPP. Boram Kim is the Programme Analyst for Rule of Law, Justice and Human Rights, UNDP/PAPP. The views in this article do not necessarily reflect the views of UNDP/PAPP or UNDP but those of the authors.
UNDP/PAPP and the Justice Sector
UNDP/PAPP has supported and continues to support the Palestinian justice sector through:
• Judicial training for judges, prosecutors and court administrators in partnership with France, Japan, and USAID through the High Judicial Council and the Institute of Law of Birzeit University;
• Automation of Palestinian courts through the development and upgrading of a case management system called Al MIZAN in partnership with Japan;
• Strengthening the capacity of the High Judicial Council in partnership with the Netherlands and strengthening the capacity of the Attorney-General’s Office in partnership with Canada;
• Construction of courthouses in Jenin, Khan Younis and Nablus in partnership with Japan.
In addition, in partnership with Sweden and based on a significant financial contribution from SIDA, UNDP/PAPP is in the process of expanding its efforts to promote the rule of law by providing support to the Ministry of Justice and enhancing access to justice for marginalised and disadvantaged people across the oPt.
UNDP/PAPP would like to acknowledge the support and generous contributions provided by all partners of the Palestinian justice sector.
i. Palestinian Public Perceptions of Security Sector Governance, DCAF 2005, p. 8; Access to Justice in the oPt: Mapping the Perceptions and Contributions of Non-State Actors, UNDP/PAPP 2009, pp. 11-12.
ii. Human Rights Situation in Palestine and other Occupied Arab Territories, report to Human Rights Council, 21 January 2008 (A/HRC/7/17).
iii. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ, 2004.