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Informal Justice in Post-Oslo Palestine

Informal Justice: The Rule of Law and
Dispute Resolution in Post-Oslo Palestine

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Informal Justice in Post-Oslo Palestine

  1. 1. Informal Justice: The Rule of Law and Dispute Resolution in Post-Oslo Palestine Presented to the Justice Sector Working Group Palestinian Ministry of Planning & Administrative Development Presented by Jamil Salem Institute of Law, Birzeit UniversityDate of Presentation: October 15, 2009 1
  2. 2. IntroductionOne of the Institute of Law’s publications is a book entitled “Informal Justice: Rule of Lawand Dispute Resolution in Palestine- National Report on Field Research Results”. This bookwas published in cooperation with the International Development Research Centre (IDRC) inArabic language and sections of the book were translated into English language.1 The book waspublished in the year 2006.The research consists of:1) An introduction to the document.2) A discussion of the legal background to the informal justice system in Palestine.3) The results of the fieldwork, divided into 7 parts, each dealing with different aspects of thefieldwork.4) The prelude to the recommendations.5) The recommendations.6) Appendices including tables, a summary of the case studies, a glossary, and other fieldworkdocuments.The overall aim of this research is to produce policy recommendations on the role of customarylaw in the present and future Palestinian justice system. While there currently exists a degree ofcoexistence between the formal and the informal justice systems in the West Bank and Gaza,there remain questions as to the extent and the type of interaction between the two, and thedegree to which this duality ultimately hinders the rule of law. The plurality of the Palestinianlegal culture, encompassing the laws of myriad political regimes, religious authorities and thevarious methods of informal dispute resolution, has resulted in a fluidity of authorities whereinresponsibilities are blurred and due process and justice are not always respected.1 The translated sections of the book can be downloaded from the following link: 2
  3. 3. This research has therefore aspired to propose ways to strengthen the rule of law by ascertainingthe present relationship between the formal and informal justice systems in the field of criminallaw, and by then formulating policy recommendations, based on the findings of the research, onhow these two potentially conflicting systems can be reconciled in a future Palestinian judiciary,whether by integrating the two, or encouraging the reform of one or both systems. It hasattempted to highlight both the positive and negative aspects of the two systems by revealing thesocial dynamics involved and the legal issues that arise from this interaction.While the end objective of this research is to contribute to efforts to reform the judiciary byrecommending ways to approach the plurality of the Palestinian justice system, the means toachieving this end are equally important. The intention is also to learn from the experiences ofother countries in dealing with more than one system of resolving disputes. The project thereforeaims to reach not only a Palestinian audience of policy makers and people with a stake in the twosystems. It also aspires to gain the insight of international academics and Palestinian civilsociety.The Research ProblemThe rationale for the research stems from the present state of the Palestinian judiciary, which is arelatively new institution in the Palestinian arena. The system of justice in Palestine has acheckered and irregular history. Over the last century, Palestinians have experienced severalchanges in political and military regimes, and consequent transformations in the legal system.The Palestinian legal system, only established in the early 1990s with the advent of thePalestinian Authority, has not developed significantly with regard to the independence of thejudiciary and the rule of law. It is in this context that the Institute of Law chose to undertake thisresearch to discover the extent to which and the reasons why informal methods of disputeresolution, outside of the formal justice system, are resorted to by Palestinians. The existence ofthis informal system of justice raises serious questions as to the effectiveness of the formaljustice system in advancing the rule of law, given that there is effectively a plurality of legal locithat has played a part in hindering the development and implementation of a Palestinian law. Therole of the executive in advancing the informal system and attempting to shape it has contributed 3
  4. 4. to undermining the independence of the judiciary and minimizing its role in resolving disputes isa key issue here, and is a point of focus for the research. The recent political developments in thePalestinian Territories, with the passing of President Yasser Arafat and the division betweenFatah and Hamas after the legislative elections held in 2006, have left some uncertainty as to thefuture of the Palestinian Authority and the role of the executive in particular. This project istimelier than ever at this juncture, given the pivotal role certain actors played in hindering thedevelopment of the institutions necessary to implement the rule of law and in encouraging thepersistence and spread of informal dispute resolution mechanisms. It is perhaps now, more thanever, that the vast efforts of Palestinians to introduce real reforms can be realized.This study is ultimately an essential component for any future attempts at judicial reform. Notonly will it serve to inform policy makers of the current status of both the formal and informaljustice systems. It will also provide insight into how the judiciary can be tailored to take intoaccount the Palestinian legal tradition, both formal and informal, and thereby make any proposedreforms more relevant to the Palestinian reality, and in turn, more likely to succeed. It is evidentfrom the fieldwork conducted that informal, socially-sanctioned methods of resolving disputesare integral to Palestinian notions of justice, and play a vital role in easing societal tensionsresulting from disputes between individuals.The importance of the project lies in the absence of accurate and up to date information on thescope of informal justice practices and the extent of their relationship to the formal judicialsystem. While the rationale for the research is based on the need to reform the ailing Palestinianjudiciary, its approach is innovative in its incorporation of both legal and sociologicalperspectives to study the phenomenon of informal justice as a significant part of the Palestinianlegal field as a whole, formal and informal. The questions that arise when approaching the lawfrom a sociological perspective give voice to the whys, hows and whos that are oftenundervalued or overlooked altogether by purely legal-minded reformers. While it is generallyassumed that there is a correlation between the weakness of the judiciary and the preponderanceof the informal justice system, the research conducted to date has shown that the reality is muchmore nuanced. The factors that influence peoples’ choice to resort to informal methods ofresolving disputes go beyond the formal judiciary’s inefficiency and enter into the realm of 4
  5. 5. religious, political and societal issues. Indeed, many actors in both systems perceive the twosystems as complementary rather than conflicting, as is evidenced by a significant degree ofcooperation between the two, whether formally recognized or not. The informal system itself hasin fact been weakened in many ways, in part for the same reasons that the formal system hasstruggled. The executive’s tendency to involve multiple executive organs in the resolution ofdisputes without a clear distinction of authorities, and the efforts of other groups to gain someinfluence over the informal justice system has in effect fragmented the system more than inprevious historical periods.The research has therefore aimed to answer a range of questions regarding the nature andexpanse of the informal justice system and its relationship with the formal system. In the courseof the fieldwork, new questions arose as new information was gained. These were integrated intothe fieldwork as they arose. The objective of these questions is as much to understand the varioussocietal factors at work and the way different sectors of society are affected as it is to gain atechnical and procedural understanding of the systems of justice at work in Palestine. Inparticular, a major concern of the study has been to reveal the differences in the way socialdistinctions including gender, age, financial and social status, location (village, city or refugeecamp) and political affiliations, affect the how justice is delivered on the part of the two systems.The fieldwork conducted has addressed these questions through in-depth interviews withindividuals involved in resolving disputes, whether formally or informally, and through a numberof case studies that illustrate the intricate factors involved in these dispute resolution processes.The policy recommendations that evolved from the research were based on a comprehensivetreatment of both the legal and sociological issues involved in this research.Research FindingsThe fieldwork largely confirmed many of the assumptions of the research, while furtherilluminating important ambiguities, and raising additional questions as to the nature of therelationship between the formal and informal justice systems and the perceptions of the twoamong Palestinians in general. In gearing towards writing recommendations about how toapproach a situation in which the resolution of disputes occurs in multiple, often overlapping, 5
  6. 6. sometimes contradictory arenas, the research team identified the main ideas arising from thefieldwork that explained the prevalence of the informal system and the reasons for which peopleresort to it. The oft repeated notions that the informal system is less costly and more timely thanthe formal system, that the reason for its prevalence is rooted in the tribal nature of the society,that it works towards maintaining social order in a situation where a central authority is unable todo so and that it represents the culture and traditions of the society were all examined more fullyin order to challenge these assumptions and arrive at some conclusions as to the positive andnegative aspects of the two systems. In order to do so, the team came to a consensus that thebasis for such determinations would be the principles of the rule of law, as expressed in thePalestinian Basic Law, all of which are necessary to achieve a democratic society that guaranteesthe rights and freedoms of its citizens and ensures their equality before the law. The mainprinciples of the rule of law were thus laid out and the points of conflict between principles ofthe rule of law and the informal justice system were identified, as follows: 1- The principle that laws should be presented in a clear and unambiguous manner, in order to prevent different interpretations and confusion as to the intent of the legal text. This is also related to the fundamental principle that there is no crime or punishment in the absence of a legal text (Basic Law, Article 15). 2- The publication of the law in a manner that makes it accessible to the public (Basic Law, Article 116). 3- The principle of equality of all citizens before the law, and without discrimination based on color, religion, gender, political affiliation etc. (Basic Law, Article 9). 4- The principle of election by citizens of their representatives, which ensures a democratic, representative government and political pluralism (Basic Law, Article 5). 5- An independent, unbiased judiciary that monitors the executive and legislative authorities and ensures the rule of law.There are three main areas where these principles are contradicted by the procedures undertakenby informal dispute resolution processes. Firstly, the punishments meted out by informalmediators pose several problems. The fact that they are based solely on custom and differ fromthose provided for by the law is contrary to the principle that there is no punishment without a 6
  7. 7. legal text. The collective nature of punishments, moreover, contradicts the notion that individualsare not responsible for crimes they did not commit. Moreover, the fact that resolutions arrived atthrough informal mediation differ from area to area and from case to case is contrary to theprinciple that laws should be public knowledge and clear enough to avoid significant variances ininterpretation. Secondly, the influence of various factors on the resolution of a case, includingsocial status, gender, age, and personal associations, challenges the principle of equality of allcitizens before the law. Such factors ultimately affect marginalized groups disproportionately.Thirdly, the use of legally unrecognized mechanisms as evidence undermines the right to dueprocess, the presumption of innocence and the right to legal representation.From this point of departure, the issues cited above were examined in more detail.The fieldwork revealed that the issues of time and cost were two main reasons cited among allgroups interviewed for why people resort to the informal system. The expedience of informalmediation is all the more evident when the inefficiency of the courts is considered. It is widelyknown that the backlog in the courts results in cases being held up for months if not years, and asone judge noted, the number of judges at present is far too few to deal with the excessive caseload. Mediation, on the other hand, is initiated as soon as a conflict occurs, and measures aretaken to secure a truce directly with the parties involved and thus prevent retaliation by thevictim’s family for the crime committed. It is this immediate and personalized response that thestate authorities, whether it be the police, the state prosecutor, or the courts, are unable toprovide, especially in the current circumstances. On the other hand, the formal court system isinherently more time consuming for reasons having to do with procedural requirements, such asinvestigation of a crime and the collection of sufficient evidence to prosecute an individual.These procedures are ultimately necessary to ensure the highest degree of justice. The speedinessof the informal system is therefore often at the expense of justice, a point which was confirmedby the fieldwork.With regard to cost, however, the widely held perception that the informal system is less costlyin the long run is not as clear cut. Although the informal system is supposed to be free of cost tothe parties involved as far as the work of the mediators goes, it was confirmed by many 7
  8. 8. respondents that some mediators do ask for compensation for their work, despite the fact that allthe mediators interviewed frowned upon such practices and denied their own culpability. Thereis a general misunderstanding about costs incurred by bringing a case to the courts. Whilebringing civil cases to court, such as those dealing with land and property issues, incurs certainadministrative expenses and requires both parties to hire lawyers, this is not the case in criminalcases, where the state prosecutor is responsible for representing the public right of the state, andthe defendant has the right to legal representation provided by the state.The perception among many respondents that the informal system provides monetarycompensation to the victim that the formal system reveals a lack of awareness of the fact thatindividuals can bring civil cases to court for physical or psychological damage caused as a resultof a crime, even when the state has prosecuted and punished an individual for that crime. Suchcivil cases award compensation to the victim, according to the degree of damage incurred andaccording to the law. Nevertheless, initiating such cases is often costly for less affluentindividuals, despite the fact that such costs are eventually covered by the responsible party.Moreover, the exaction of such compensation is often much faster via the informal system,which often awards high amounts of compensation determined by the mediators and theoreticallyagreed on by the parties, sometimes covering medical expenses incurred as a result of the crime,and the payment of which is ensured by the offender’s guarantors.With regard to the commonly expressed notion that the informal system is complementary to theformal justice system, the fieldwork revealed that in fact, the informal system can act either ascomplementary or as a substitute to the formal system. The former relationship consists of theinformal system acting to prevent the further conflagration of a conflict without passingjudgment or exacting a punishment. It is often the case, however, that the informal system acts asa practical substitute to the formal system by pronouncing punishments on the offender and hisfamily, and often by obliging the offender to relinquish his legal rights, which is ultimatelycontrary to the principles of the rule of law. In some cases, undertaking informal disputeresolution procedures obviates the intervention of the police and the state prosecutor, andconsequently the judiciary, from hearing the case. 8
  9. 9. Besides the more timely resolution of disputes and lower initiation costs that informal justiceprovides, the fact that the informal system offers a degree of social order in a context where otherauthorities are unable to do so constitutes a positive aspect. The informal system’s ability tofunction in all circumstances is also an important factor that makes it practically necessary in thecurrent situation, where the proper functioning of the courts is constantly compromised by thepolicies of the Israeli occupation. Whereas the performance of the courts is predicated on aminimum degree of political stability, the informal system can function, via individualmediators, through closures, checkpoints, and general instability, though not without someinconvenience. The general flexibility of the informal system, which responds to and resolvesconflicts on the basis of many factors, including the individuals involved, the area in which itoccurs and the personal relationships at play, can be considered both a positive and negativeaspect, as practical resolutions sometimes take the place of just resolutions, as confirmed by thefieldwork. The courts, while less flexible because of strict procedures and laws they are obligedto follow and apply, nonetheless provide assurances that a just solution will be reached that isbased on the equality of the parties and sufficient evidence, in theory at least.The tribal nature of the society was also a common justification for the prevalence of theinformal system and the need for its continuation. The idea that tribalism is a main determinantin the life opportunities of Palestinians is challenged on the basis that in fact, there are multiplefactors that determine an individual’s opportunities with regard to education, employment,marriage, etc. Indeed, factors such as class, occupation and gender play a larger role indetermining access to education and health care, participation in the society, the status of thespouse, the age of marriage and the number of people in a family than do tribal affiliations.While tribal or clan affiliation constitutes one such factor, it is argued that clan affiliations areimportant in a limited number of situations, namely in gathering political support, as is the casein local and general elections, which rely significantly on mobilizing clan-based relationships,and in the process of informal dispute resolution, which requires the support of the extendedfamily and clan to increase the negotiating power of the parties and to contribute to financialobligations. Religious and social occasions are another manifestation of clan relationships. Thesefew circumstances where extended and clan-based relationships play a role are contingent on thearea and the type of community at play. As confirmed by the fieldwork, therefore, such 9
  10. 10. relationships are more prevalent in the southern area of the West Bank, and in Gaza, where muchof the population originates from the Beer Sheva area, notable for its historically Bedouinpopulation. Likewise, dependence on extended family relationships is more prevalent in villagesand less so in cities.Ultimately, the influence of tribal affiliations differs from area to area. The term “tribalism,”however, is misguided given the fact that the tribe no longer constitutes the main living unit ofthe majority of Palestinians. “Tribalism” is often used to describe other kinds of familialrelationships and the practice of favoritism or patrimonialism for which the Palestinian Authorityhas become well known. Indeed, the PA can be credited for having encouraged a dependence on“tribalism” through its promotion of the informal system and its failure to support the formationof an independent and efficient judiciary. The effect of the Israeli occupation cannot beunderestimated here as well, given its hindrance of the state-building process and the generaldistrust of the law that it has engendered among generations of Palestinians, who prefer to resortto informal relationships to meet their needs.Finally, the most commonly cited factor for the necessity of the informal justice system amongall groups interviewed was its role in maintaining social order and preventing the conflagrationof conflicts in the absence of an effective central authority. While this was confirmed in largepart by the fieldwork, it is also evident that the resort to the informal system also acts toreproduce and sustain existing power relationships in the society, based on class, gender and age.This is evident in the social position of mediators (all male, usually elders), who were all provedto be from relatively wealthy, large families or clans, and who had extensive networks of socialand political relationships. Their connections with official individuals and institutions give themlegitimacy and establish them as a first resort to directly resolve conflicts. The support thatpublic authorities give to mediators in turn widens the formers’ own social and political networksand strengthens their positions. This is evident when considering the involvement of publicofficials, including governors, security officials, ministers, and legislators in public reconciliationceremonies, which allows them to have a public image locally, and nationally when suchceremonies and their attendants are announced in the newspapers. The relationship between 10
  11. 11. public authorities and private mediators is thus reciprocal in the legitimacy, exposure, andconsequent authority it provides to both.RecommendationsThe recommendations ultimately focused on the main problems with the informal system ofdispute resolution, the formal justice system and the interaction between the informal system andgovernmental and non-governmental institutions. The recommendations, are derived from theresearch findings and respond to the issues identified by the research team as contradictingprinciples of the rule of law and compromising the independence of the judiciary and its properfunctioning. A general statement preceding the recommendations recognizes and supports themyriad studies produced by Palestinians calling for reform of the judiciary and other officialinstitutions and the implementation of the rule of law. The recommendations ultimately supportthe objective of building a modern democratic state that respects the rights of its citizens andfunctions according to the rule of law. While they are framed generally, they address specificconcerns identified by the research.They are summarized as follows: 1. There should be a legislative policy that recognizes and reflects a knowledge about the informal system and its procedures in order to allow for the possibility of codifying positive aspects of the informal system and excluding negative aspects. 2. The punishments that are often pronounced in reconciliation agreements, such as those that impose collective punishment (exile of the offender and his family, financial compensation), contradict the Basic Law and legal principles including individual responsibility for a crime. The passing of judgements in reconciliation processes should therefore be ceased. The Penal Code should penalize those responsible for imposing such decisions in order to curb the phenomenon. 3. Given the involvement of the governorates in organizing and providing assistance to the informal justice system under the pretext of maintaining public order, it is recommended 11
  12. 12. that a law be formulated defining the jurisdiction of the governorates and ensuring that they do not challenge or undermine the independence of the judiciary.4. Given that one factor for peoples’ resort to the informal system is the amount of time it takes for a case to be heard by the courts, it is recommended that suitable mechanisms be introduced to the courts to ensure the speedy consideration of cases and to aid judicial examination and the administration of case files.5. Given the positive role that customary reconciliation processes can play in maintaining social peace, it is recommended that the Penal Code explicitly identify reconciliation agreements as mitigating circumstances that can be considered to reduce the penalty of the offender, on condition that it is not contrary to the will of either party and the process was undertaken of their own choice, that it does not include any judgements or penalties on the offender or his family, that it is subject to review by the judge, that the sentence is not reduced below the minimum sentence for the crime committed, and that it does not prohibit the victim from pursuing his/her right to bring a civil case to court for any harm incurred.6. The research has shown that the Penal Code in force in the West Bank includes clauses that allow for a reduction in sentence for crimes committed in a state of rage, often used in cases of revenge for a crime committed. In order to limit such retaliatory crimes, it is necessary to increase the penalty for such actions, which amount to an attack on the judicial system and a lack of respect for its authority, the right of the state to punish criminal offenders, its responsibility to maintain public order, and which encourage the phenomenon of taking the law into ones own hands. Likewise it is necessary to increase the sentences for crimes allegedly committed in defence of family honour, or so-called honour crimes, the perpetrators of which often receive minimal sentences on the basis of such clauses.7. The research revealed that a significant number of Legislative Council members undertake the role of mediators in resolving disputes. Such activity should cease in order to facilitate the rule of law.8. Given that the costs of the formal system were cited as a reason for the resort to the informal system, the Bar Association and other legal civil society organizations should 12
  13. 13. provide legal assistance to those without means to hold the state responsible for fulfillingits obligations in this regard (providing counsel, etc.). 13

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Informal Justice: The Rule of Law and Dispute Resolution in Post-Oslo Palestine


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