In Palestine, there is a lack of effective and well-functioning legislation specifically aimed at protecting whistleblowers. The laws that refer to whistleblowing partially conform to the UNCAC, particularly Articles 8\4, 32 and 33, in terms of reporting in general, but they do not conform in terms of adopting measures for reporting.
The current political system in the Palestinian Territories is defined as “interim” under various agreements and is administered by the Palestinian Authority (PA), which formally serves as a branch of the Palestinian Liberation Organization (PLO)1. Although the PA has signed numerous agreement with Israel, it does not enjoy sovereignty over the territories it administers, i.e the West Bank and Gaza Strip. This presents major challenges in terms of developing the institutions and legal framwork.
The laws in force in the OPT’s include legislation enacted in the Ottoman Empire, during the British Mandate over Palestine, the Jordanian rule in the West Bank, the Egyptian rule in Gaza, Israeli military orders in Gaza and in the West Bank, and Palestinian Legislation enacted by the PA.
The PA was established in 1994 as a consequences of the 1993 Declaration of Principles on Interim Self Government Arrangements (the Oslo Accords) signed by Israel and the PLO. The scope of powers granted to the PA under the Oslo Accords was both functionally and territorially limited.
The Palestinian Legislative Council (PLC) approved a temporary Basic Law2 for the PA in October 1997 for the transitional period, and was promulgated on 29 May 2002. The Basic Law provides the constitutional framework for the PA during the interim period and is expected to serve as a provisional legal framework for a future Palestinian state.
Palestinian legislation also grants citizens and public officials the right to submit complaints or report cases of corruption or financial or administrative misdemeanor. Each complaint should be submitted to the authority to whom the law has granted the relevant competences to respond to the complaint.
According to the Basic Law and other legislation in force in the Palestinian territories, certain institutions have been established to address some aspects of corruption. Some include the State Audit and Administrative Commission (SAACB), Illicit Gains Commission3 and, as of late, the Anti- Corruption Commission.
2. Current legal context
a. Public Sector
The Public sector is mainly governed by the 1998 Civil Service Law and its 2005 amendments. Duties, obligations and standards of conduct of Palestinian civil servants are contained in this law. The Civil Service Law provides for complaints to be filed against public employees, though it does not include any provisions to protect employees who report a violation. The Civil Service Law also states that the promotion of a civil servant who is under investigation shall be postponed until the investigation is complete.
The 2010 Anti-Corruption Law (ACL) which replaced the Illicit Gains Law is the only piece of legislation that deals with mechanism to protect whistleblowers. It is an important step towards compliance with UNCAC since the 2010 Word Bank households and public officials survey identify the lack of protective mechanisms as the key reasons why corruption was not reported by respondents4. Moreover, the ACL established an anti-graft court (the Corruption Crimes Court) and an Anti-Corruption Commission5.
The ACL complements the Civil Service Law standards of conduct and stipulates that public employees are obliged to report illicit gains that come to their attention while performing their functions6. This article also imposes restrictions that prevent harassment, disciplinary measures or other means of affecting the positions of whistleblowers. Further, Article 30 provides that “anyone who falsely reports an illicit gain shall receive a prison sentence of up to six months and receive a fine of at least JOD 100 (USD 140)”.
The State Audit and Administrative Control Bureau Law, particularly Articles 35 and 44, obliges financial auditors to report any financial violation of payment procedures. It stipulates that all parties subject to the mandate of the Bureau must report any financial or administrative violations. In return, the State Audit and Administrative Bureau will provide the whistleblower with immunity.
As stipulated in Article 14 of the Anti-Money Laundering Decree Law7, financial and non-financial institutions and businesses must report any transaction or revenues suspected to be the outcome of a crime or an act of money laundering to the Palestine Monetary Authority Financial Monitoring Unit (PMA).
There have been two bodies created quite recently, namely The Anti-Money Laundering National Committee and the Financial Monitoring Unit. The latter has issued a number of circulars to banks, including circulars on reporting money laundering and suspicious transactions. The committee has also prepared reporting forms and relevant guidelines.
b. Private Sector
There are no legal provisions for the protection of private sector whistleblowers.
c. Mechanism to report
In practice a reporting procedure handling complaints was established with the creation of the new Anti- Corruption Comission (ACC). Since the ACC was created in 2010, it is still too early to assess its effectiveness.
The Anti-Corruption Commission agency allows individuals to submit their concerns about wrongdoing8 (English version) by providing the following information to the ACC.
- The name of the complainant
- The name of the defendant
- The subject of the complaint
- The complaint
The ACC also provides a possibility to download a complaint form9.
3. Further gaps in the law
The ACC prepared a draft of the system of protecting witnesses and whistleblower to be discussed in a workshop during the first quarter of 2012. At the time of this writing, no news regarding the implementation of a protection system for whistleblowers was publicly available.
4. Information landscape
In 2005, a draft law on the right to access information was presented to the Palestinian Legislative Council (PLC). However, it has not been approved until this day due to present paralysis of the PLC.
Currently, the Palestinian media are divided into three categories: the official media owned by the Palestinian Authority (PA), the media run by different Palestinian factions and non-governmental organizations, and privately-owned media.
The absence of a legal framework for media institutions limits the role of journalists in addressing corruption-related cases.
The media are not free in the West Bank and Gaza. Under a 1995 press law, journalist may be fined and jailed, and newspapers close, for publishing “secret information” on PA security forces or news that might harm national unity or incite violence. Journalist who critizes the PA or the dominant factions face arbitrary arrests, threats, and physical abuse10.
In Gaza there have been several violations on journalists and the closure of the Journalists Syndicate. However there have been some improvements, for example, Alaqsa (Hamas Affiiliated) was allowed to work in the West Bank and Palestine TV (WB government affiliates) was allowed to work in Gaza.
However many institutions are reluctant to reveal information because they consider it their source of power and are worried that it may reveal corruption cases11.
During 2011 the media followed up on issues pertinent to the use of the Shifaro substance in bread-making (shifaro is an additive which keeps bread fresh longer and gives it lustre, but is banned by health organizations worldwide); expired medications and food; deferrals of local authority elections; lack transparent measures and criteria for student acceptance at universities; reporting news updates of cases reviewed before the ACC and the Anticorruption Court.
5. Political, economic, and social landscape
AMAN-Coalition for Integrity and Accountability12 is the most prominent Palestinian organization specialized in combating corruption and raising awareness about means to prevent it. Through the course of its existence, AMAN has implemented several programs, workshops and public awareness campaign. AMAN has also attempted to introduce certain values to the governmental and non-governmental sectors by preparing the code of conduct for public employees.
So far, there is no legislation regarding access to information and that could be seen as an obstacle for citizens to access the information they need in order to participate.
6. Citizen participation
It is worthy to note that the majority of the investigated corruption cases were based on whistle-blowing from the relevant ministries such as Ministries of Finance, Education and Awqaf. However, initiatives by citizens or employees are still lacking whistle-blowing in person, despite some direct contributions by employees to obtainment of evidence on corruption, these groups do not show a willingness to disclose their names which is a sign indicating the lack of protection of whistleblowers. This also shows the public fear, insecurity and lack ofawareness to the importance of informing authorities about corruption
7. Rule of Law
The judicial system is not independent. Defendants are not granted the right to appeal sentences and are often summarily tried. According to the Palestinian Human Rights Monitoring Group, alleged collaborators are routinely tortured in Palestinian jails. These practices are not prohibited under Palestinian law.
1 The Declaration of Principles (DOP) on Interim Self Government Arrangements signed on 13 September 1993 between the PLO and Israel served as a basic text for subsequent agreements between the two sides. According to Article 1 of the DOP, an interim Self-Government would b established for the Palestinian people in the West Bank and Gaza Strip.
3 Article 3 of the Illicit Gains Law No. 1 of 2005, which was altered as a result of Article 4.6 of the decree of Law No. 7 of 2010 to become the Anti-Corruption Law No. 1 of 2005. As indicated previously, the Illicit Gains Commission became the Anti-Corruption Commission as a result of this amendment.