Activities 2022

AMAN: The problem does not lie in the legal framework for immunity, but in practices and applications that allow impunity

AMAN: The problem does not lie in the legal framework for immunity, but in practices and applications that allow impunity

AMAN holds a session to discuss a report on The Reality and Impact of the Immunity of Senior State Officials on Political Integrity

AMAN: The problem does not lie in the legal framework for immunity, but in practices and applications that allow impunity

Ramallah – The Coalition for Accountability and Integrity (AMAN) held a session to discuss a draft report on The Reality and Impact of Immunity of Senior State Officials on Political Integrity. The session brought together representatives of government bodies and civil society organisations as well as former members of the Palestinian Legislative Council (PLC).

In his opening statement, Mr. Jihad Harb, Senior Researcher at AMAN, highlighted the importance and objective of the report. For the most part, the report monitors the current context and impact of judicial immunity granted by the Palestinian legal system to high-level State officials on political integrity and anti-corruption efforts. The report provides practical recommendations to decision makers with a view to strengthening the system of integrity, especially political integrity. This is aimed at ensuring a balance between the purpose of the granting of immunity, promotion of anti-corruption efforts, prevention of impunity, and integrity of government.

Mr. Mahmoud Alawneh, a researcher, made a brief overview of the legal framework for the granting and goals of immunity and the rules governing procedures for lifting immunities. Over the past two decades, the rules of immunity have developed along the lines of international standards, particularly Article 30 of the United Nations Convention against Corruption (UNCAC) and Vienna Convention on Diplomatic Relations. Palestine has brought domestic legislation in line with these international conventions, which have put in place best practices to eliminate corrupt conduct. Alawneh explained and compared relevant Palestinian regulations to international practices, especially with respect to the procedures for investigation and prosecution for corruption cases involving persons with immunity.


The problem lies in practices, not law

It can be argued that the problematic balance between the purposes of immunity and prevention of impunity is not directly correlated with the legal framework; rather, it has to do with practice. The report attempts to address the main question of whether the immunity enjoyed by some higher categories, senior State officials, and decision makers in Palestine make their accountability and prosecution difficult in the event they commit offences of corruption. These hold sensitive positions, e.g., the President, Prime Minister, ministers, PLC members, judges, prosecutors, and senior security commanders. Furnishing an opportunity for corruption offences to go unpunished will have grave consequences, undermining public confidence in the governing authority in general, and law enforcement agencies in particular. The report demonstrates cases where suspicions of corruption were not prosecuted, allegedly because the infractions made by concerned officials were either administrative or financial, rather than corrupt practices. Other pretexts cited the maintenance of community safety and public confidence in the political system and officials. In practice, some cases are dealt with and resolved directly by the President. Based on reports or complaints filed to the Palestinian Anti-Corruption Commission (PACC), these cases involved senior officials, but did not amount to suspicions of corruption. According to the PACC, these cases were closer to administrative infractions. They were resolved in direct cooperation with the President of the State. Nonetheless, if they fall short of suspicions of corruption, the State Audit and Administrative Control Bureau is vested with the power to handle these irregularities.


Lack of public confidence… a major reason to prevent complaints against senior State officials

The report reviews public perceptions of the prevalence or absence of corruption in public sector institutions. According to the AMAN 2021 Annual Report, while PACC data showed that complaints against senior official comprised just 13 percent of all whistleblowing activity, 24 of 886 cases were lodged against staff of specific categories (i.e., those appointed as ministers from among heads of government bodies), diplomatic personnel, and ambassadors. This included 20 cases that involve staff of specific categories and two against diplomatic officials and ambassadors.

According to AMAN 2021 Opinion Poll on the Reality of and Fight against Corruption, 77 percent of respondents said that corruption was mainly pervasive among high raking officials. Apparently, this is due in part to the lack of public trust and confidence in Palestinian officials. Citizens do not see senior officials being subject to serious accountability.


A genuine willingness to hold political officials to account and refer files to the PACC

The report provides a set of policy recommendations. If they commit practices of corruption, senior political officials will be held accountable, with their respective files referred to the PACC for appropriate action. In addition, Palestinian regulations need to take into consideration the checks and balances placed by the UNCAC so that provisions are in place to maintain a balance between the granting of immunity and impunity. Modelled on some experiences, time limits will thus be set to reply to requests for lifting immunities and downsize groups with immunity, without prejudice to the freedom to perform tasks in accordance with the law.

The report also recommends that the PACC need to stop addressing cases of immune persons against involved in administrative infractions with the President of the State. This power is beyond the President’s mandate; it is within the ambit of the SAACB.


Multiple comments

Dr. Azmi Shuaibi, Advisor to the AMAN Board of Directors for Anti-Corruption Affairs, explained that the report was one of a series, which investigated the link between the integrity of government and political corruption. In other words, the report inquires whether political protection is provided to some groups that benefit from and access privileges, exacerbating the phenomenon of impunity. Importantly, a balance should be stricken between the goal of granting immunity, strengthening of anti-corruption efforts, prevention of impunity, and integrity of government.

Dr. Hanan Ashrawi, AMAN Board member, indicated that a selective approach was used to handle some suspicions of corruption. This could be utilised as a political means to put pressure on some individuals to make gains or financial concessions, while at the same time turning a blind eye to others. Such selectivity adversely impacts the credibility of complaint statistics, corruption cases, and how to address corruption in general.

Mr. Mohammed Abdul Jawwad, SAACB representative, made clear that auditing, rather than investigation, was at the heart of the SACCB operations. According to Abdul Jawwad, if a suspicion of corruption arises, it is referred to competent bodies. When a complaint is filed on administrative and financial infractions, the SAACB provides a full investigation, including in terms of compliance with relevant regulations and other procedures. The auditing process covers both individual and institutional performance and responsibility.

Ms. Kahlida Jarrar, former member of the dissolved PLC, stressed that a key challenge posed by immunity generated from the diplomatic corps as well as how serious diplomatic functions are monitored of and held to account. Particularly in the context of escalating Israeli abuses against the Palestinian people, criteria and mechanisms for senior-level appointments need to be revisited, ensuring consistence with Palestinian regulations and best practices.

Mr. Issam Haj Hussein, Executive Director of AMAN, stated that the key problem resided with the integrity of government. Immunity can be circumvented through pressure on certain people to sign a resignation in advance. An official might be asked to resign their post to steer clear from protection (immunity) against dismissal. A law can be enacted so as to permit removal from office. Targeting immune officials, punitive measures can affect privileges, salaries, freedom of expression, or performance of tasks. On the other hand, the law itself might be incapable of enforcing other punitive measures. Haj Hussein also indicated that informal protection is conferred on some practices that are sanctioned by immunity, including partisan, familial, and tribal protections. Protection can also be endowed by associations with decision making circles. Therefore, attention needs to be paid to these anomalies.

Mr. Raed ash Sharabati, representative of the Ministry of Local Government, stressed the need to pay attention to administrative irregularities and issues. According to Ash Sharabati, some of these infractions might be unclear or vague. Dr. Maheeb Abu Lohah, representative of the Ministry of Higher Education and Scientific Research, emphasised that the lack of public confidence in the leadership is among the most serious aspects to be addressed. This gap needs to be bridged in order to bolster public trust and confidence in the political leadership

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