By Elias Sa'adah
In 2008, a few days after giving birth, Mrs. TM, a teacher since 2006 and living in the occupied West Bank, received a letter terminating her employment. It was signed by the Minister of Education in Salam Fayyad's Ramallah-based Palestinian Authority, Lamis Al-Alami; this was certainly no letter of congratulations on the birth of her child; "due to orders from the concerned parties, you have been terminated."
TM says that the reason for her sacking was down to a security check carried out by the PA's public intelligence and preventative security agencies in the West Bank. This claimed that she has links to Hamas, something which she denies resolutely. She described the accusation which turned her maternity leave into an open-ended holiday as "malicious".
I have a copy of the minister's letter to TM, which confirms that the order was made based on a security check, called "security safety", as noted by the now ex-teacher, even though the law does not give the two security agencies mentioned any authority to intervene in governmental appointments. My own research uncovered the fact that one of TM's relatives was a member of Hamas and died during the second Intifada about 5 years before the Hamas-Fatah division. That is her only link to anyone linked to the Islamic Resistance Movement.
According to TM, she was living outside the Palestinian territories and first came to the West Bank after her marriage. "My relative had died before I came and I have never even met him," she said. "When I appealed to the security agencies to ask why I was fired, I was told it was mainly due to his ties to Hamas."
TM is, documentary evidence and information provided by human rights organisations confirms, one of around 1,500 government employees fired or excluded from certain jobs in the West Bank's Ministry of Education alone. The figure does not take into account what must be many more who've lost their jobs in other ministries and government institutions.
The majority of these employees were appointed after Hamas's victory in the legislative elections in 2006, but as a result of the political and administrative division between the West Bank, under Fatah, and the Gaza Strip, governed by Hamas, the Ministry of Education in Ramallah terminated the contracts of hundreds of employees based on politically-motivated security decisions. The most prominent political supporters of this cull were the members of the Council of Ministers, led by Dr. Salam Fayyad.
According to official data, the Ministry of Education is one of the largest civil institutions in the Palestinian Authority, employing over 66,000 teachers and administrators. It has an annual budget of around $600 million. Should the PA reinstate those who have been sacked, the compensation payable will be more than $63m (see below). This must come from the PA budget which currently shows a deficit of over $1 billion on a budget of $3.7 billion.
My investigation reveals that there has been substantial direct and indirect intervention by politicians and security agencies in the appointment of employees in the Ministry of Education and the termination of their contracts through a series of secret resolutions which are not legally supported. Moreover, the agencies went a step further by intervening on a judicial level, ensuring delays on a ruling about the grievances submitted by the sacked teachers for 4 years in order to apply the security clearance resolution to their cases.
Articles number 18 and 24 of the civil services law number 4 of 1998 and its amendments limit the conditions of appointment to the following: the employee must be Palestinian or Arab, over the age 18, free of any diseases or physical or mental deformities that prevent them from carrying out their duties in accordance with the resolution from a specialised medical reference, have their full civil rights, and must not have been charged by any Palestinian court with any crimes or immoral acts. The law does not require a security check on applicants for a public sector job.
Despite this, such a condition was applied in the time of Yasser Arafat and continued under the current president, Mahmoud Abbas. Resolutions were put in place by the PA to control appointments in its institutions and agencies based on security conditions.
After Hamas's election victory and its formation of the government, Prime Minister Ismail Haniyeh issued resolution number 8/5/10 on 2nd May 2006 which cancelled the employment condition of security safety. The resolution sets out the right to apply to government jobs based on the civil service law and articles 18 and 24, and cancels all that conflicts with them. The resolution was cancelled on the same day, but the Fatah government, headed by Salam Fayyad, reinstated it in 2007, after the political division.
Contradictions in the reaction of security agencies
Requests to talk to the security agencies about the security clearance and reasons for TM's job termination were fruitless as a result of a resolution that prevents employees from speaking to the media about this matter. However, we did find a statement issued on the Ma'a security agency page in October 2010, by a spokesman for the security agencies, Adnan Al-Damiri: "The Palestinian Authority and its security agencies do not deal with any citizen based on their political affiliations; the law does not punish citizens based on political affiliations."
However, a statement by another security official contradicts what Al-Damiri said. An interview on Watan Television between Suhaib Daghlas and a Palestinian intelligence official was broadcast in April 2011. When he was asked about the matter of accountability based on political affiliations and security clearance s, the official said, "There are occupational security clearances, and it is necessary for jobs at this time due to the uprising." He was referring to Hamas's military victory in Gaza against Fatah in 2007.
An existing but missing resolution
In fact, my research shows that the decisions to terminate these employees' contracts were based on a letter issued in the 18th session of the Council of Ministers in Ramallah, held under the leadership of Salam Fayyad on 3rd September 2007 and signed by Fayyad's Chief of Staff, Sa'adi Al-Kerniz. It is number 1/AAMW/2115, dated 9th September 2007, and it provides for "considering security clearances a part of the hiring process, and that the General Employees' bureau is responsible for appointments, and therefore must contact the security agencies for this matter."
However, after searching through the resolutions issued by the Council of Ministers in Ramallah during that session, I could not find any trace of the official resolution signed by Salam Fayyad provided for the aforementioned letter. This indicates that this resolution does not exist in the Council's archive.
Expert on administrative law Gandhi Al-Rabe'i, the most prominent Palestinian lawyer who handled the defence in the case of the sacked teachers, sees the matter as "a clear infringement of the principles of Basic Law and the Council of Ministers Law, which stipulates the illegality of issuing undeclared or secret resolutions, if the decision was a secret. It is also considered an infringement by the security services on its law restricting their work to judiciary policing. This indicates a serious lack of compliance with the law on both parts by firing employees based on letters that have not gone through the complete legal process, issued by the Council of Ministers and implemented by the security services and the Employees' Bureau, neither of which are experienced in all cases where there has been this kind of termination."
What makes the "security safety condition" letter from the Council of Ministers even more mysterious is that the report by the Independent Commission for Human Rights indicated that "the High Court, represented by its chief at the time, who is also the former Head of the Palestinian Supreme Judicial Committee, Judge Issa Abu Sharar, requested, in a letter directed to the Ministers' Council, to provide it with a copy of this letter. However, the Secretary General of the Ministers' Council at the time, Saadi Al-Karnaz, responded with an official letter to the Court saying, 'We apologize for our inability to provide the High Court with a copy of the mentioned session's proceedings, due to the confidentiality of the proceedings of the Ministers' Council sessions, in accordance with the Council's internal regulations.'"
The Human Rights report mentioned earlier was published in 2010. It has the following to say about the Council of Ministers' response: "This response indicates the executive authorities' unwillingness to cooperate with the court to realise justice, especially since the Court's goal was to consider the context of the Ministers' Council resolution relating to making security safety a condition for employment, which led to the termination of [the contracts of] hundreds of employees. Moreover, it is in violation of the Basic Law amended in 2003, which, in article 30/2, prohibits laws stipulating the immunity of any resolution or administrative work from monitoring by the judiciary. Furthermore, the failure of the Ministers' Council to issue the resolution regarding security safety is considered a violation of the citizens' right to obtain information."
The Secretary General of the Ministers' Council in Ramallah, Salah Aliyan, responded to the matter of the Council's failure to provide the court with the session proceedings thus: "Extraction of the sessions' proceedings and supplying any party with it, including ministers, members of parliament, and judges, must be approved personally by the Prime Minister." He added that he is sure that Fayyad did not refuse to hand over the proceedings and did not violate the law, and that there is no explanation as to why the proceedings were not handed over by the Council at the time, considering the long period of time connected to this incident.
Minister subject to the security agencies
Later, during my review of documents and correspondence from the Ministry of Education in regards to the reasons for firing these employees, letters signed by Minister of Education Lamis Al-Alami indicated that the reason for contract termination is linked to the security agencies', in particular the preventative and intelligence agencies', lack of involvement in the hiring process, which was clearly stated in the two letters dated 22nd July 2011.
Law number 11 for 2007 and number 17 for 2005 relating to the two agencies (intelligence and preventative) limit their duties, in accordance with articles 6, 7, 8, 9 and 12, to work protecting Palestinian national security, carrying out judicial policing duties and adhering to all rights and liberties provided for in the law, whilst refraining from violating them. I could not find anything in the law governing the activities of the two security agencies which indicates that their authority to intervene in hiring or firing the employees of various ministries.
Al-Alami's response to the question of why she signed the termination letters in violation of the law was as follows: "The Ministry received letters from the General Employees' Bureau that indicated the ability to employ and terminate the contracts of employees based on security recommendations. This resulted in the Ministry making their employment decisions based on these letters in adherence to the resolution of the Ministers' Council regarding security safety issued in 2007." However, the Minister admitted that she "later discovered, due to the fact that the High Court ruled in favour of a group of sacked teachers, that the General Employees' Bureau did not have the authority to intervene in employment and termination, and that the authority and responsibility lies only in the hand of the Minister." Despite this, her late realisation did not translate into her immediate retraction of the termination letters that she herself had signed.
Ministers oblivious to their authority
In his comments on the Minister of Education's response, Judge Abu Sharar noted clearly that "the Ministers' unawareness of their authority, as in the case of the teachers fired by the Ministry of Education, is a tragedy greater than the tragedy of the ministries applying the resolutions of the Employees' Bureau, which are based on the recommendations of the security agencies." He noted that the Employees' Bureau exercised hiring and firing powers outside its legal scope of the time, thus violating the powers provided for in the Basic Law of the ministries and the ministers.
JW was one of the teachers who was included in the security clearance process which led to his being fired from work due to what he said was "the injustice of the security clearance and charges of political affiliation". He explained that he, as well as others, was subjected to pressure by the security agencies, most of which stressed the condition of cooperating with these agencies and working with them in exchange for getting their jobs back. He said that the teachers who had been fired refused to do so, due to the impossibility of combining teaching and security work.
However, during the difficult four years that JW has had to live with being unemployed in his profession, he and other teachers were forced to work as street vendors, construction workers or in other jobs not related to their qualifications. This was why they felt the need to appeal to the courts against the termination decisions.
Their experience with the judicial system categorised the teachers into three groups. The first group of about 600 to 800 individuals were those who filed a complaint through human rights institutions and centres. The second group, which had over 200 members, filed their complaints through private lawyers. As for the rest, none filed a complaint because they thought it was useless due to the political nature of the situation and their inability to pay the legal fees, which amounted to about $200 for each case.
According to a poll of the individuals who did file complaints, the courts have only addressed 14 out of hundreds of cases submitted over the 4 year period between 2008 and 2012. In addition to this, the poll indicated that the cases in which the court ruled in favour of the teacher returning to their job, the teacher was only able to do so after a lengthy period of stalling by the authorities. Pressure had to be applied to the Council of Minister through protests and hunger strikes in front of their gates demanding that the court's ruling be enforced.
The actually began after they were told that their reinstatement was being delayed due to a resolution issued by President Mahmoud Abbas on 24th August 2012, which ordered the "stopping of all promotions and appointments until further notice". According to Salah Aliyan and Lamis Al-Alami, the President's resolution was the main reason for the delay in re-appointing the teachers.
"The re-appointment of the employees will take about 2-3 years due to the Palestinian Authority's financial crisis and the President's resolution," insisted Al-Alami. "Moreover, the Ministry still hasn't received the High Court's ruling in regards to the reinstatement of these teachers for it to take any measures in their regards." However, legal experts who met with me confirmed that, according to the ruling of the court, the terminated teachers were no longer terminated and should return to their jobs immediately, as if they hadn't been terminated.
The Minister of Education changed her tune when the sacked teachers were joined by civil society organisations in putting pressure on the ministry: "The Ministry will reinstate everyone who [had their contract] terminated in accordance with the rulings of the High Court as soon as possible." A number of these teachers returned to their jobs as a result of this pressure, although hundreds are still awaiting reinstatement.
Legal expert Ibrahim al-Barghouthi, the Executive Director of the Palestinian Centre for Judicial Independence (Musawa), commented on the 4 year delay in this matter: "The delay in resolving the issue has no legal justification whatsoever. This postponement of litigation for over 4 years is considered negligence of justice, and is a violation of one of the main principles of law, which provides for enabling the citizen to resort to the law in order to reach justice in the quickest way possible, therefore noting that delayed justice undoubtedly equals the negligence of justice."
Furthermore, in regards to executing the rulings of courts, article 106 of the amended Basic Law stipulates that "judicial rulings must be executed, and any failure or delay in doing so is a crime punishable by arrest and removal from office if the offender is a public servant or charged with public service. The accuser has the right to press charges directly to the specialised court, and the national authority guarantees them full compensation."
Security puts pressure on the court
A senior source in the judiciary system, who insisted on anonymity, confirmed that the reasons for the delay of these cases for the past 4 years are the pressures put on the judges from all sides, including political and security sources. Moreover, some of these pressures have come from within the judicial system, a point confirmed by Judge Abu Sharar, who spoke about attempts he fought off to pressure him personally and pressure other judges during his term, which ended in 2009. He also noted that there were "personal relations between a number of judges, politicians and security officials, which he could not put an end to or refuse". He described these relations as "mostly personal".
Another senior official in the Palestinian Authority, who also asked to remain anonymous, said: "The reason for the delay was due to the pressures of the [Hamas-Fatah] division." When asked about what the "pressures of the division" means and the source of these pressures and who was able to exercise power over the law, his answer was to remain silent on such matters, which according to him, were "of a sensitive nature".
As for the polls on judicial integrity, carried out by the Supreme Judicial Council and supervised by USAID in 2009, they revealed that 49 per cent of the judges included in the poll admitted being subjected to pressure from their seniors in the Council, whereas 36 per cent admitted being pressured by politicians. Sixty-two per cent of lawyers believe that judges are subjected to pressures from politicians and security officials.
However, according to Musawa Centre, one of the groups concerned with the independence of judicial agencies, a survey it published in 2012 showed that 54 per cent of the judges who took part confirmed the intervention of executive and security agencies in their work; 86 per cent of the judges respond to such pressures.
Our survey of a sample of 150 citizens from the northern, central, and southern districts of the West Bank, asked for opinions about judicial independence. Sixty-three per cent expressed their belief that the judicial system "is a pawn of the executive agencies and their members, including politicians and security officials through the pressures they put on the judges and their Council." Also, 77 per cent of the surveyed individuals confirmed that pressure from politicians and security officials is altering the course of justice and twisting facts in favour of influential figures on both sides.
Security agencies stalling court rulings
Based on simple calculations and according to statements made by the employees who lost their jobs who each have on average 4 members in their families, we find that about 8,000 individuals have been denied their rights guaranteed by law during their time working in Palestinian Authority facilities, as well as various governmental benefits such as insurance and health care.
Considering the average salary of a teacher is $600 pm, when a ruling is made in favour of the teachers, and in accordance with article 32 of the amended Basic Law, the Palestinian Authority will have to pay compensation for arbitrary termination based on the Palestinian Civil Service Law totalling more than $63 million, which will be borne by the PA treasury. $38 million of this will be for dues for the illegal termination period, and $25 million will be compensation for losses due to the termination of the teachers' contracts. This averages to about $42,000 for each employee, in addition to $250,000 in legal fees.
Role of the Palestinian Authority President
A large number of those included in the teachers' issue are still in limbo, despite the high profile nature of the case.
According to Ibrahim al-Barghouthi, "Following up this case is the responsibility of the Palestinian President, because it has been established that from a legal aspect, the resolutions terminating the employees are illegal and categorised as a huge professional mistake."
Gandhi Al-Rabe'i added that the PA President is called on to "examine the responsibility the law requires, in accordance with the amended Basic Law articles 74, 75, and 76, in terms of accountability and intervention in any resolution that may cause harm from the executive branch and its members. Moreover, its members bear the responsibility of neglecting this, both collectively and individually, both personally and morally. In addition to this, the PA must commit to carrying out the ruling as soon as possible and reinstating the terminated teachers, as well as paying all compensation due as a result of their job terminations, in accordance with the court ruling in their favour."