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​​​​​ Historical Background

Those who have an idea about the legal system in Palestine - throughout the ages - know that it has differed from one period to another due o political, social and economic conditions  Palestine went through because of the change in regimes and powers that ruled it. It was under the Ottoman reign for a period of time where the Ottoman legislations were applied, then it went through the British Mandate that has issued several laws, regulations and orders which have been applied to it being one of the United Kingdom colonies.

This continued until the end of the British Mandate on Palestine in 1948, where it was replaced with the Israeli occupation taking over part of Palestine and establishing the so called State of Israel. Israel issued legislation serving the occupation in the judaiztion of Palestinian land. The remainder of Palestine was devided to two territories, one was subject to the Egyptian administration (Gaza Strip), and the other (West Bank) was subject to the Jordanian Administration from 1948 to 1950. Jordanian laws were then applied until 1967 when Israel occupied the remainder of Palestine (Gaza Strip and the West Bank) where it issed numerous Military Orders that caused nullifying and amendeing several existing laws and regulations to serve the interests of this occupation and give it control over Palestine. 

When the Palestinian National Authority (PA) arrived and took over a part of Palestine, the President of the PA / Yasser Arafat issued decision No. 1 of 1994 to continue using laws, regulations and orders existing before June 5th 1967 in the Palestinian territories (West Bank and Gaza Strip) until they are unified.

First: the Ottoman Empire

In  the likes of other Arab states, Palestine underwent the Ottoman reign for around four centuries during whi9ch several laws were issued to organize the political, economic and social situation in the Ottoman Empire. 

The penal legislation had special importance, as it was the key to security, safety, jusitice and fairness. It focused on identifying prohibited courses of action and sets the penalties for such actions. It also clarifies how powers are used in all procedures in a manner that guarantees them being right and just .

The Ottoman legislator made sure these powers are given to  an honest body capable of practicing them fairly and accurately. The legislator also provided the necessary guarantees to prevent them from expanding the use of these powers. The legislator adopted the accusatory investigation system through giving a public body the powers to investigate and make accusations in crimes before courts where the employees of this body were appointed in accordance with the law to perform their duties.

There is no doubt that the legal articles in the Ottoman Penal Procedures Law included clear provisions with no ambiguity in which an independent public body was given the task to set cases into motion and follow up on them, and the law set special rules and provisions for practicing this duty.

Article 1 of the Ottoman Penal Procedures Law stipulates: "the  claim to make legal penalization is a public right, therefor filing such cases is the duty of officers appointed by the law..."  ​


Second: the British Mandate

After the war ended and the United Kingdom took over Palestine in 1917, it was subject to military administration for a period of time until the Mandate was issued. It issued the Palestinian Constitution of 1922, in which the third chapter included provisions on the Legislative Authority, Article (17/1 /a) stipulates: "the high commissioner shall have the absolute power to issue the necessary laws to promote security and order  and regulate governing if Palestine without prejudice to the powers of His Majesty or the powers maintained for His Majesty in accordance with this declaration taking into account the terms and boundaries set in the instructions given to him under His Majesty's Sign Manual and Signet, or through the secretary of state..." and it was amended by declarations issued in 1923, 1933 and 1935. Then articles 18-34 were nullified through the amended declaration of 1939, which included special provisions on forming the members of the legislatibe council as well as their powers and jurisdictions in issuing laws.

Article 46 addressed the legislations to be applied, it stipulates:

"The jurisdiction of the Civil Courts shall be exercised in conformity with the Ottoman Law in force in Palestine on November 1st, 1914, and such later Ottoman Laws as have been or may be declared to be in force by Public Notice..." In light of issuing Law No. 21 of 1934 amending the code of pleadings, the legislator gave the power to conduct penal procedures before courts  to the attorney general or his representative, police officers, or any person allowed by any law in force to do such acts. The law allows police officers to plead cases in any penal procedures given that these procedures are initial investigations or partial trials. Article three of the Code of Penal Procedures based on Reported Complaints of 1934 or article two of the Conciliation Courts Mandate of 1924, any person who files a complaint in accordance with these provisions may plead his case either by himself or through a lawyer before the conciliation court.

​Third: the Egyptian administration in the Gaza Strip : -

Gaza Strip underwent the control of Egyptian forces in 1948, the administrative governor issued Ordinance No. 6 of 1948 which stipulates that all courts continue working in the areas under the control of Egyptian forces in accordance with the laws, bylaws, ordinances and instructions in force before 15 May 1948. The Public Prosecution continued working with the same system used at the time of the British Mandate until Ordinance No. 473 of 1956 was issued by the General Administrative Governor of Gaza Strip; the mandate of the Public Prosecution was identified in this ordinance, article one stipulates "the Public Prosecution shall be specialized in investigating crimes and filing and conducting criminal cases. The Attorney General may mandate whom he requires from the employees and police to perform the duties of the Public Prosecution."

Thus the Public Prosecution became the competent body to file and conduct public cases, as it was vested with the power to investigate all crimes and prosecute criminal incidents before courts. The Attorney General was allowed to mandate any employee or police officer to perform any task relevant to the work of the Public Prosecution (investigation - pleading). Article five of the same ordinance gave representatives of the Attorney General the power to issue arrest warrants, and investigation warrants (search houses), in accordance with the Code of Penal Procedures (arrest and investigation), which were the jurisdiction of conciliation judges.

Ordinance No. 554 of 1957 was issued, which gave the Attorney General and his representatives the power to investigate suspicious deaths, and gave him the competencies provided for in the Suspicious Deaths Law of 1926 which were the jurisdiction of investigation judges.

Fourth: the Palestinian National Authority

Article 1 of the Code of Penal Procedures No. 3 of 2001 stipulates:

"The right to file and conduct a penal action is vested exclusively in the Public Prosecution, and it shall not be filed by others except in those cases where the law provides otherwise."​​​

​According to this provision, the Palestinian legislator gave the Public prosecution the right to file and conduct penal cases on behalf of the society and call for penalizing the accused before the penal judiciary.