Activities 2022

Security clearance is a public policy and government bears responsibility for abolishing it

Security clearance is a public policy and government bears responsibility for abolishing it

Security clearance is a public policy and government bears responsibility for abolishing it

AMAN recommends that security clearance be eliminated along the lines of High Court of Justice rulings of 2012 and replaced by no conviction certificate of the Ministry of Justice

 

Ramallah – The Coalition for Accountability and Integrity (AMAN) held a discussion session on resurgence of the security clearance condition. The event brought together representatives of human rights groups, media institutions, Independent Commission for Human Rights (ICHR), Ministry of Interior (MoI), Preventive Security agency, Palestinian Bar Association (PBA), and a number of affected individuals.

 

A practice falling within the category of political corruption

In this opening statement, Mr. Issam Haj Hussein, AMAN Executive Director, cited the High Court of Justice judgement of 2012, which ruled for abolishing security clearance as a prerequisite to hold public office. According to the Court, security clearance was in conflict with the principles enshrined in the Basic Law. Haj Hussein indicated that application of the security clearance condition was so expansive as to cover access to public service. Security clearance has become pronounced following the internal Palestinian political divide. It has also affected access to, and renewal of, some permits and licences, formation of charitable associations, scholarships, licence to practice an occupation or trade, etc. Haj Hussein emphasised that the continued imposition of the security clearance condition reflected insistence on the violation of the Basic Law and democratic values. This practice falls within the category of political corruption, entailing abuse of power to obtain political interests, rather than work for the common good.

 

Attempts to legitimise the so-called “security clearance condition”

Advocate Bilal al-Barghouthi, Legal Advisor to AMAN, presented AMAN’s position with regard to the so-called security clearance. Al-Barghouthi explained that the term security clearance has been repeatedly used in some legislative acts passed by the Executive branch of government. The law making power is being abused to promote personal gains of the ruling party at the expense of the public interest. For example, the most recent Draft Regulation on the Licensing of Media Institutions of 2022 uses the phrase “no objection certificate issued by the Ministry of Interior” on 13 occasions. Again, many provisions on the employment of media workers and issuance of licences to media outlets place security clearance as a precondition to obtain permits and licences or access employment. The same approach was apparent in the Instructions on the Licensing of Scientific Research Centres No. 1 of 2018 (not published in the Palestinian Official Gazette). Issued forth by the Minister of Education and Higher Education, the Instructions require a certificate of good conduct by the MoI in order to license scientific research centres.

 

The security clearance condition runs counter to constitutional principles and norms

Al-Barghouthi made clear that the security clearance condition (no objection certificate) was in violation of many constitutional provisions of the Palestinian Amended Basic Law of 2003. Most notably, it impinges on the right to equality, principle of the presumption of innocence, right of equal access to public service, right to peaceful assembly, right to political participation, and right to freedom of economic activity. Continued enforcement of the security clearance condition is in contravention to judgements of the High Court of Justice (Administrative Court), which ruled that the approval of security agencies would not be considered to be a prerequisite to hold public office. Nothing under the 2005 General Intelligence Law and 2007 Preventive Security Law provides that tasks of either agency include approval of the appointments to public service or access to licences and permits. In addition, the fact that security actors’ recommendations to adopt security clearance as a precondition to hold public office undermines the foundations and principles of civilised societies, whose legitimacy is grounded in the rule of law. It also compromises citizens’ right to equality and equal access to public service.

Furthermore, there is no specific legal terms of reference that defines the meaning of the terms “security clearance, security approval, security vetting, or no objection certificate issued by the MoI”. The Palestinian body of legislation is devoid of any explicit definition of these terms. All that is mentioned under Palestinian regulations is the term “good conduct or good reputation,” which is utilised by the MoI as grounds to issue the no objection certificate. This practice has been used as an entry point to obtain approvals of the General Intelligence and Preventive Security agencies for granting that certificate. At the same time, no publicly announced or clearly defined terms or reference or criteria are in place so as to determine the conditions and standards to be fulfilled by persons, who apply for the certificate. As a result, there has been ample scope for using political affiliation and opinion as a main criterion and condition to grant or deny the no objection certificate. It has in part led to the proliferation of some forms of favouritism and nepotism in the context of access to this certificate. Allowing room for exploiting official influence to grant the document, security clearance constitutes a substantial breach of the principle of integrity in government, involves a form of political corruption, and impinges on the legal competence of the Ministry of Justice (MoJ). With security agencies interfering with public life, security clearance consecrates the concept of the police state.

 

Security clearance should be replaced by the MoJ-issued no conviction certificate

AMAN recommended that the security clearance condition need to be abolished by analogy with High Court of Justice rulings of 2012 and Council of Ministers’ decision of 24 April 2012. Wherever mentioned, security clearance should be replaced by the no convention certificate issued by the MoJ. The government will refrain from incorporating in security legislative acts any conditions, which require the provision of MoI-issued security clearance or no objection certificates. Vague and ambiguous legal provisions, which prescribe “certificates of good conduct”, will be removed. Wherever it is mentioned in regulations effective in Palestine, the phrase “good conduct” or “good reputation” will be replaced by “no conviction certificate”. Additionally, the Council of Ministers needs to instruct the MoI to cease to issue, and replace, certificates of good condition by the MoJ-issued no conviction certificate. This will be in compliance with the Council of Ministers’ decision of 24 April 2012, which provides for “suspending the requirement of security clearance for holding public office and accessing work permits.”

 

The security clearance condition is imposed for political considerations and interests

Advocate Mousa Abu Duheim, ICHR representative, stated that complaints filed to the ICHR indicated that applications for security clearance often get stuck between the General Intelligence and Preventive Security agencies. While one agency might refuse the application, the other would accept it, resulting in a situation of public uncertainty and recurrent procrastination. According to Abu Duheim, the majority of replies that cite reasons for the denial of certificates are verbal. Security agencies also give vague and unspecific reasons for rejections.

Advocate Ashraf Abu Hayyeh, Al-Haq representative, demonstrated that complaints lodged to Al-Haq were far from criminal records or no conviction cases. Most often, security clearance is premised on political considerations. Abu Hayyeh explained that the security clearance condition was stepped up in the aftermath of the internal Palestinian political divide. It has been based on personal discretion without any clear definition, luring security agencies into interfering with different aspects.

 

The MoI has not clearly defined the certificate of good conduct

In his comment, Advocate Iyad Matakh, Legal Advisor to the MoI, did not provide a clear definition of the certificate of good conduct. However, Matakh emphasised that the MoI did not place any constraints or conditions beyond the scope of law. The Ministry does not bear responsibility for rejecting, granting, or imposing the certificate of good conduct requirement. On the other hand, the certificate is required in certain contexts, such as scholarships, if the host country stipulates that Palestinian students present this document. This is also the case with immigration or visa applications. Rather than not at the behest of the MoI, the bylaws of some institutions further require the certificate of good conduct.

 

A phenomenon as pervasive as to affect judicial appointments

Advocate Mohammed al-Harini, PBA representative, stressed that the so-called security clearance condition exists and is codified by elaborate terms. Describing it as “a widespread phenomenon in Palestinian society”, security clearance has even affected appointments to the judicial office. The High Court disposed this case and ruled that security clearance was neither a condition precedent nor does it have a legal basis. However, some security agencies continue to use this condition. Certain ministries, such as the Ministry of Waqf and Religious Affairs, refrain from enforcing court decisions on, e.g. inheritance. According to the current understanding, inheritance is a matter that requires security clearance.

Al-Harini also indicated that the political level refused to appoint two of nine judges for political considerations. Of note, both judges passed examinations and fulfilled all the requirements included in judicial competitions. In other words, no other discretionary power is exercised after judges meet set conditions.

 

Restrictions on media institutions

Mu’ammar Orabi, representative of the Wattan Media Network, said the requirement of a certificate of good conduct for a licence was designed to place restrictions on media outlets. Constituting a grave violation of the freedom of expression, this condition reflects a systematic process to muzzle all free voices. The licence requirement and other constraints are unjustified and in breach of the Basic Law. Licences are exacted in the context of pressure on media outlets and civil society activists to control the content they present so that it is in line with the official narrative.

 

The security clearance condition reflects a public policy, for which the government assumes responsibility

In his comment, Dr. Azmi Shuaibi, Advisor to AMAN’s Board of Directors for Anti-Corruption Affairs, plainly rejected the so-called security clearance condition. According to Shuibi, the security clearance condition reflects a public policy, for which the government assumes responsibility. Chaired by Dr. Mohammed Shtayyeh, the Council of Ministers made a political decision that invalidated all provisions of the Declaration of Independence with regard to the establishment of a democratic state and placing security agencies above the law. Shuaibi highlighted that AMAN considered this issue as a political and national priority. AMAN will scale up its efforts in collaboration with civil society organisations to put pressure on the government to abolish the security clearance condition. The government will require that all state institutions comply with the abolition of security clearance and replace it by a certificate of no conviction issued by the MoJ.