The Reality of Immunity for Senior Public Officials in Palestine: Between Praise and Criticism

●      I reviewed reports concerning the issue of immunity for senior public officials, and the extent to which the legislation of any state is able to achieve a decisive balance between the immunity granted to senior state employees while performing their public official duties... and suspending the effect of that immunity, and lifting it in the event of proven involvement of its holder in criminal acts, foremost of which is the practice of corruption..!

●      Among these reports, I examined the substance of a report by Coalition AMAN  " the Coalition for integrity and accountability (AMAN(. 2022. "The Reality of Immunity for Senior State Officials and Its Impact on Political integrity, and Anti-Corruption Efforts. Ramallah - Palestine." which was issued in November 2022. The report comprises 33 pages, from the coalition's series of reports number 241.

●      As for corruption cases in Palestine, the AMAN Coalition report showed that many senior state officials enjoy some immunities restricting accountability, including procedures related to anti-corruption..according to the report's description

●      In the report's introduction, it discussed the antiquity of the practice of granting immunity to state employees, noting that the oldest records of parliamentary and judicial immunity date back to the thirteenth century. In modern states, under the rule of law, there is a consensus among international organizations, such as the United Nations, that criminal immunities should be limited to allow for the effective prosecution of corruption crimes, in light of immunities being granted to many people, widely and generally without necessity, and this immunity being exploited on a wide scale by corrupt politicians..!

●      The report defined immunity in its body as the protection of certain persons from criminal prosecution for acts they commit in the course of performing their official duties..and it is granted for the public interest..not for the interests of the persons who enjoy it..However, the granting of immunities and privileges by laws is a double-edged sword: on the one hand it constitutes a tool to facilitate work and protect categories to whom the law granted certain advantages to perform their work and ensure their independence in their work..and on the other hand it constitutes an entry point for categories that may exploit this immunity in order to obtain certain benefits and gains or to escape punishment...!

●      Anti-corruption laws at the international level – United Nations

●      The United Nations Convention against Corruption. An international commitment under United Nations General Assembly resolution 4/58 dated 31-10-2003, which obliged each State Party to it to a fundamental obligation to take the necessary measures at the level of its domestic laws to strengthen the balance between granting immunities and privileges, and carrying out prosecutions in relation to corruption cases..

●      The Palestinian National Authority ratified the United Nations Convention against Corruption of 2003 on 2014-04 (April 2014), for Palestine, as a State Party to the Convention, and it entered into force on 2014-05-02 (2 May 2014).

●      I also reviewed a thorough and meaningful study written by the Attorney General, Counselor Dr. Ahmed Al-Barak entitled "Immunity from the Perspective of Criminal Confrontation of the Phenomenon of Corruption in Palestinian Legislation," published on 19-6-2020, in which Counselor Dr. Al-Barak affirmed that the United Nations Convention against Corruption emphasized the necessity of achieving a balance between immunity and the effectiveness of criminal confrontation of the phenomenon of corruption. Although practical reality is otherwise; therefore, according to the counselor's description, that balance cannot be achieved except by limiting those immunities by restricting their effect to measures touching the person enjoying the immunity and to the inviolability of his residence, with the necessity that the decision to lift the immunity be made by a neutral, objective, and independent judicial body, and that this be based on clear and regulated practical procedures with a specified duration, such that they are swift.

●      In his introduction to that study, Dr. Al-Barak pointed out that the phenomenon of corruption is classified as a global phenomenon, whose negative effects encompass most political units and social entities, while the extent of that phenomenon differs among states as a result of their varying degrees of response to systems based on combating corruption, in addition to their differences in factors of political, social, economic and developmental stability.

●      The counselor added that we can define corruption as “an improper behavior that involves a person exploiting his position and authority in violation of laws, regulations and instructions to achieve benefits for himself, or for his relatives, friends and acquaintances, and that at the expense of the public interest, and the improper or deviant behavior appears in the form of crimes such as bribery, embezzlement, misuse of public funds, unjustified spending of public money and its waste. It is nothing but a deviation from adherence to the legal rules and systems in force locally or internationally.”

●      Anti-corruption laws at the domestic level

●      The Coalition for integrity and accountability (AMAN) report 2022, cited above, stated that Palestine, like other countries of the world, has suffered from the phenomenon of corruption which raises concern about various aspects of life, and contributes significantly to hindering development and undermining the fundamental values of society, in addition to its negative impact on the Palestinian national project; by undermining the legitimacy of the Palestinian demand for establishing an independent state, and the people’s exercise of the right to self-determination, not to mention what corruption contributes to obstructing the construction of a state of law and the desired institutions.

●      The Anti-Corruption Law No. 1 of 2005 in Palestine, and its amendments ..particularly Article No. 9 which granted authority to the Anti-Corruption Commission to receive reports, notifications and complaints regarding corruption crimes, to study them, and follow them up..and to grant some employees of the Commission the status of judicial police which enables them to take investigative and evidentiary measures and to collect information about corruption crimes..

●      As for corruption cases in Palestine, the report showed that many senior state officials enjoy some immunities restricting accountability, including procedures related to anti-corruption..according to the report's description

●      As for the Anti-Corruption Commission in Palestine, it states that the proportion of corruption by senior categories of public employees, in cases recorded by the Anti-Corruption Crimes Court and referred by the Commission, did not exceed 13% of the total corruption cases registered with it, (contrary) to what citizens say in surveys, the results of which were included in AMAN’s 2021 annual report, which showed that the proportion of corruption by senior categories of public employees, as perceived by the public, reached 77% of the total cases presented to the Anti-Corruption Crimes Court...., while the proportion of corruption by lower categories of public employees in the survey was about 20%.

●      That the immunities determined by international conventions and domestic legislation are immunities essentially allocated for the proper performance of public employees’ official duties, and to protect them during their work from the arbitrariness of executive authorities or any internal conflicts that might affect their performance of duties, and these are work-related immunities, not personal privileges that are misused for private interests, or to escape punishment.

●      The report says that there are cases that do not rise to the level of corruption practice, but are classified as administrative violations..and in such corruption-related cases, the Commission usually does not publicize such sensitive cases through the media. In an interview with the Secretary-General of the High Judicial Council, he indicated that the number of cases registered in 2018 reached 18 cases before the Anti-Corruption Crimes Court, while it reached 25 cases in 2019, and in 2020 it reached 37 cases, whereas in 2021 it reached 25 cases. As for 2022 up to the time of writing the report, it reached 9 cases..

●      As for the cases pending before the court, their number reached 82 cases, the details of which are as follows:

1-    Public prosecutor's deputy - Case No. (1)... -under consideration.. As for the type of this case, the report says that it is misuse of office, dereliction of duty, bribery, breach of trust, etc...

2-    Diplomats – Case No. (6): decided: and the subject of these cases is bribery and misuse of office to obtain a personal benefit

3-    Ministers – Case No. (3): under consideration, and their subject: forgery in private papers, and other official documents..etc

4-    Security apparatus leaders: Case No. (1):   decided... and its subject is misuse of office and fraud in managing state accounts, money laundering, etc..

5-    Public employees Case No. (71):  under consideration ...various cases according to the Anti-Corruption Law

●      The report stated that there are observations from officials of the High Judicial Council regarding some obstacles before the Anti-Corruption Crimes Court, including: witnesses attending and being absent..especially witnesses from security institutions, and the difficulty of notifying and bringing them, notification procedures, non-execution of summonses especially in C areas, and the absence of some lawyers from sessions..

●      The primary problem that this report sought to address is the link between some of the senior categories and holders of positions and decision-makers in Palestine, by virtue of the immunity, and the possibility of holding them accountable and prosecuting them if they commit corruption crimes, and the degree of difficulty in achieving that — especially given the sensitivity of the positions they occupy and the effects that may be reflected on some essential aspects of life in Palestine, such as the threat to public peace and security, the stability of Palestinian society, and strengthening the trust between the citizen and the ruling political authority in general — in order to achieve a degree of required balance between the purpose for which immunity was granted on the one hand, and activating anti-corruption efforts and enhancing the integrity of governance on the other.

●      The report listed the designations of the categories
that enjoy the privilege of immunity according to domestic legislation as follows: the immunity of the President, the immunity of the Prime Minister and the ministers, the immunity of members of the Legislative Council, the immunity of judges and members of the Public Prosecution of the Judicial Authority, the immunity of senior security commanders and the Military Judiciary, the immunity of heads of quasi-ministerial institutions and authorities (institutions) and their employees, and perhaps most notably: the immunity of the President of the State Audit and Administrative Control Bureau (SAACB) and its employees, and the immunity of the President of the Anti-Corruption Commission and its employees:

·       The most prominent recommendations that this report produced in light of the foregoing findings can be summarized as follows:

1-     At the political level:

-        It is necessary to emphasize the presence of a genuine political will to hold senior state officials accountable, and to refer their files to the Anti-Corruption Commission, if required, so that the necessary measures are taken.

-        It is necessary to strengthen the trust of citizens in the public institution and anti-corruption institutions through enhancing transparency and confidence in the seriousness of measures taken against senior officials, to change the public’s general impression and strengthen confidence in the effectiveness of anti-corruption measures.

2-    At the legislative level:

-        It is necessary to ensure that Palestinian legislation takes into account the balance imposed by the United Nations Convention against Corruption, by including provisions that observe the balance between granting immunity and avoiding impunity, by streamlining and simplifying procedures for lifting immunity rather than making them onerous and complicated, and by amending the procedures related to lifting immunity to simplify them, alongside setting time limits for responding to requests to lift immunity in a manner that achieves balance.

-        It is necessary to review Palestinian legislation in light of the United Nations Convention against Corruption, and to reduce the number of categories granted immunity along the lines of some experiments, provided this does not affect the freedom of those entities to perform their functions in accordance with the law.

3-    At the institutional level:

-        The Anti-Corruption Commission must refrain from addressing cases concerning categories enjoying immunity that relate to administrative violations before the President of the State, since this authority falls outside his competence; instead, these cases should be referred to the competent authorities in accordance with the requirements of the law.