Modern Criminal Policy and Its Impact on Fair Trial Guarantees in the New Legislation in Palestine ()
1. Introduction
Modern criminal policy is defined as the path drawn by the legislator to address modern crimes, through criminalization and punishment.
Within modern criminal policy, the principle of criminal legality helps develop the legal system in line with rapid societal changes and modern constitutional principles that safeguard individual rights and seek to achieve prompt justice. Criminal policy maps the contours of criminalization and punishment and sets the legislative framework that governs penal laws. Accordingly, all new criminal laws must be subject to constitutional review to ensure that they are compatible with constitutional principles and with fair‑trial guarantees.
Rapid technological development and the emergence of forms of criminal activity that had not previously been criminalized prompted legislators in most countries to keep pace with these developments through special penal legislation that addresses such modern crimes. Accordingly, it became necessary—when drafting these laws and statutes—to take into account the system of rights and freedoms, particularly the guarantees of a fair trial.
1.1. Significance of the Study
The significance of the study lies in its examination of the modern criminal policy followed when issuing criminal decree‑laws—laws issued by the executive authority that are temporary in nature and require ratification by the legislative council. This has left these decree‑laws outside comprehensive legislative and constitutional oversight. It is therefore necessary to study the criminal policy underlying such decree‑laws and the extent to which it accords with the principle of criminal legality and with fair‑trial guarantees.
1.2. Objectives of the Study
1) To determine the nature of the principle of criminal legality in light of modern criminal policy.
2) To evaluate the criminal policy followed when enacting penal decree‑laws.
3) To clarify the compatibility of the decree‑laws with constitutional principles and fair‑trial guarantees.
1.3. Problem Statement
The central question of this study is: Did the newly issued decree‑laws observe fair‑trial guarantees?
This gives rise to the following sub‑questions:
1.4. Methodology
The study employs the descriptive‑analytical method to understand modern criminal policy and its impact on fair‑trial guarantees in new Palestinian legislation, by analyzing the legal texts relevant to the subject of the study.
1.5. Division of the Study
Section One: Modern criminal policy in the new legislation in Palestine.
Section Two: The extent to which these laws conform to constitutional rules and fair‑trial guarantees.
2. Section One: Modern Criminal Policy in the New
Legislation in Palestine
Numerous decree‑laws on criminalization and punishment have been issued in Palestine, including those concerning cybercrimes, narcotics, and others. This calls for an examination of the criminal policy that governs these decree‑laws. Accordingly, this Section addresses the principle of criminal legality (Subsection One) and the nature of decree‑laws on criminalization and punishment (Subsection Two).
2.1. Subsection One: The Principle of Criminal Legality
The principle of criminal legality is among the most fundamental principles in modern criminal policy. It stipulates that there is no crime and no punishment except pursuant to a statutory provision. In other words, for an act to be considered a crime it must have been defined and criminalized by a specific law prior to the act’s commission, and the penalties applicable to criminalized conduct must themselves be prescribed by law. This principle reflects respect for the rule of law and reinforces the protection of individual rights and freedoms against arbitrariness or injustice by the judicial or executive authorities (Ali, 2022: p. 582).
The Palestinian Basic Law enshrines this principle in Article 15: “Punishment is personal; collective punishments are prohibited; there is no crime and no punishment except by a legal text; no punishment shall be imposed except by a judicial ruling; and no punishment may be imposed for acts other than those committed after the entry into force of the law.” This text expresses a basic constitutional rule affirming that an act cannot be considered a crime or merit punishment unless a prior legal text so provides. Accordingly, no authority—judicial or otherwise—may punish individuals except within a clear and specific legal framework. This protects individuals from arbitrary application of laws and from punishments imposed without a legal basis (Mujahidi, 2018: p. 88).
Several conditions must therefore be met for the principle of criminal legality to operate under modern criminal policy. Foremost among them is the existence of a clear legal text: no conduct can be deemed criminal unless the law has specified the proscribed act in advance and prescribed an associated penalty. This principle is the cornerstone of stability in the modern legal order, enabling people to know—on the basis of prior legal texts—what is permitted and what is prohibited (Najm, 2010: p. 50).
Another condition is the non‑retroactivity of criminal laws: the principle prohibits applying criminal laws retroactively. No person may be prosecuted or punished for acts committed in the past if those acts were not criminal at the time they were committed. This ensures that individuals are not held accountable for conduct that was lawful when undertaken but later became criminalized by new legislation (Al-Majali, 2012: p. 114). Moreover, modern criminal policy requires that provisions defining crimes and penalties be interpreted narrowly and precisely: criminal law should not be expansively construed to encompass penalties for acts not clearly specified by law. Provisions establishing offenses must be applied as written, without judicial extrapolation that would broaden the scope of crimes and penalties beyond defined texts (Al‑Hadithi & Al‑Zu’bi, 2010: p. 50).
Thus, the principle of criminal legality constitutes an important safeguard against the abuse of power. By virtue of this principle, individuals may not be subjected to punishment for acts they did not know to be criminal when committed; their right to be free from unfair or unwarranted legal proceedings is preserved. The principle also promotes justice by ensuring that all members of society are subject to the same laws and standards, and that no person or group is exempt from the application of the law. All are treated equally when they commit acts defined by law as crimes, thereby reinforcing equality before the law (Al‑Nammour, 2013: p. 46).
It follows that the principle of criminal legality is a bedrock principle protecting individuals from arbitrariness in the application of the law, as affirmed by Article 15 of the Palestinian Basic Law. Accordingly, no act may be deemed criminal unless so provided by a previously enacted law. This helps ensure justice and equality before the law and enhances protection of individual rights against unlawful interference by the state or the judiciary.
It is also noted that the Palestinian legislator has moved toward adopting special decree‑laws related to criminalization and punishment. These may accord with the principle of criminal legality on the condition that their provisions do not conflict with the rights framework set out in the Basic Law—an essential guarantee for achieving a fair trial.
2.2. Subsection Two: The Nature of Decree‑Laws on
Criminalization and Punishment
A decree‑law is defined as “regulations issued to address sudden exceptional circumstances that require swift action to preserve the existence and safety of the state” (Al‑Helou, 1979: p. 172). It is also defined as “regulations by which the constitution authorizes the executive to legislate and to repeal or amend existing laws in place of parliament.” Temporary laws are exceptional legislation issued by the executive between parliamentary sessions or during dissolution due to a state of necessity, with the aim of taking swift measures in urgent circumstances; they must be presented to the legislature at its first subsequent session (Al‑Bayari, 2019: p. 12).
Accordingly, a decree‑law is a legislative instrument issued by the head of state in the absence of the legislative authority and has the force of law on a temporary basis until it is submitted to the legislative council for ratification or rejection. In Palestine, decree‑laws emerged after the institutional split of 2007, when the Legislative Council ceased to function, prompting the President of the Palestinian National Authority to issue legislation in the form of decree‑laws pursuant to Article 43 of the 2003 amended Basic Law: “The President of the National Authority may, in cases of necessity that do not tolerate delay and without contravening the provisions of this Basic Law, issue decisions that have the force of law, provided that they are presented to the Legislative Council at its first session….” The constitutional basis for issuing decree‑laws therefore exists, albeit hedged by constraints.
Technological, social, and economic shifts have given rise to offenses not addressed by the Jordanian Penal Code No. 16 of 1960, in force in the West Bank, or by the British Penal Code No. 74 of 1936, in force in the Gaza Strip and dating back to the Mandate era. Among the foremost offenses addressed by decree‑laws are: cybercrimes, narcotics, and money laundering.
2.2.1. First: Cybercrimes
Cybercrimes have posed a major challenge to the traditional legal system, prompting legislative intervention via Decree‑Law No. (10) of 20181 on Cybercrime. This enactment was one of Palestine’s first attempts to regulate the digital sphere and curb offenses committed through electronic networks. It contains precise definitions of offenses such as “unlawful access” and “extortion,” and prescribes penalties that may reach several years’ imprisonment (Decree‑Law No. 10 of 2018, Arts. 3-11).
The decree‑law was considered positive in that it filled a longstanding legislative vacuum that had allowed acts previously uncriminalized to go unpunished. However, it has been criticized for the vagueness and breadth of certain terms—such as “harm to national security” and “threatening societal peace”—which are undefined or lack clear criteria. Such drafting runs counter to the principle of criminal legality, which requires that offenses be defined in clear and specific terms rather than by mutable interpretations.
The use of such terms may criminalize conduct falling within the scope of freedom of opinion and expression, especially in the digital sphere, potentially conflicting with Article 19 of the International Covenant on Civil and Political Rights, which requires that any restriction on expression be clear, lawful, and proportionate to a legitimate aim. The European Court of Human Rights has emphasized a three‑part test for the legitimacy of restrictions: 1) clear and foreseeable, 2) serving a legitimate public interest, and 3) proportionate to the aim. In the Palestinian context, some researchers have argued that certain decree‑laws fail this test, exposing them to legal and international criticism and risking undue restrictions on freedom of expression and the right to privacy under the banner of combating cybercrime (Abdeen, 2018: p. 10).
It should also be noted that judicial oversight is quasi‑effective—for example, the Ramallah court authorized the blocking of 59 websites in 2019 under Article 39 (alhaq.org)2. At the same time, this step was viewed as departing from the principles of necessity and proportionality contained in Article 19 of the ICCPR, prompting human‑rights organizations to call for reform and improvement of the digital‑blocking regime. In the absence of the Legislative Council since 2007, it remains necessary to reaffirm parliamentary oversight by issuing guidelines for re‑submitting or amending such legislation once the Council resumes its functions.
2.2.2. Second: Narcotics Offenses
Decree‑Law No. (18) of 20153 on Combating Drugs and Psychotropic Substances established the legal framework for narcotics offenses, updating traditional criminal law provisions that were ill‑suited to the scale and gravity of drug‑related crimes. This decree introduced modern classifications of narcotic substances, emphasized combating domestic and transnational trafficking as serious crimes (see: Al‑Mahrouqi, 2021: p. 947), and prescribed clear penalties proportionate to the type and circumstances of the offense.
Issued pursuant to the Amended Basic Law of 2003 and its amendments, the decree‑law responded to societal developments and the heightened threat posed by drugs and psychotropic substances. It was later amended to include stringent penalties for using electronic means to promote or facilitate dealings in narcotics. Amended Article (28) punishes anyone who creates or publishes a website or uses technological means for the purpose of promoting or facilitating the use of narcotic substances, encrypts websites used by drug traffickers, or posts electronic information about the manufacture or promotion of such substances, with imprisonment of not less than ten years and a fine of not less than three thousand Jordanian dinars (Decree‑Law No. 18 of 2015, amended Art. 28).
Article (29) increases penalties in cases of recidivism, use of coercion or fraud, or targeting of a minor, up to life imprisonment of not less than fifteen years and a fine of not less than fifteen thousand Jordanian dinars (amended Art. 29). An additional Article (32) bis was also added, imposing supplementary penalties with suspended execution to commence after completion of the principal penalty—three years for misdemeanors and five years for felonies—in an effort to enhance general and special deterrence and to serve the public interest in crime prevention.
These amendments show the Palestinian legislator’s concern to align national legislation with new forms of crime, especially those linked to information technology, balancing stricter penalties with prevention and supporting a modern criminal policy based on deterrence and effective enforcement. Nonetheless, there appears to be an overexpansion of criminalization and a lack of uniform criminal policy consistent with constitutional rules.
2.2.3. Third: Juvenile Offenses, Money Laundering, and Terrorist
Financing
The Palestinian legislator addressed money‑laundering and terrorist‑financing offenses through Decree‑Law No. (20) of 20154 on Combating Money Laundering, issued in response to international and regional requirements governing financial transactions, which was important for enhancing Palestine’s standing in international financial organizations.
With respect to juveniles (under 18), Decree‑Law No. (4)5 of 2016 was enacted to harmonize national law with international standards on juvenile justice. It focuses on restorative and rehabilitative justice rather than traditional punishment, observes the child’s best interests at all stages of proceedings, sets the age of criminal responsibility at 12, establishes a specialized juvenile police, creates specialized courts, and guarantees a social counselor for every child in conflict with the law (Decree‑Law No. 4 of 2016, Arts. 6-10).
In combating financial crime—particularly terrorist financing and money laundering—Decree‑Law No. (1) of 20176 aligns with the recommendations of the Financial Action Task Force (FATF). It provides precise definitions of financial crimes, expands the powers of supervisory authorities, and obliges financial institutions to report suspicious transactions, thereby strengthening transparency and international cooperation (Decree‑Law No. 1 of 2017, Arts. 5-14; Capital Market Authority, 2019, p. 17).
Finally, in response to the looting and smuggling of Palestinian antiquities, Decree‑Law No. (11) of 20187 on the Protection of Antiquities was issued, increasing penalties for unlawful digging, illegal trade in artifacts, and any activity that destroys or damages archaeological sites, in order to safeguard national identity and culture from mounting threats (Decree‑Law No. 11 of 2018, Arts. 12-17).
These decree‑laws on criminalization were issued out of pressing necessity to criminalize many acts or to increase penalty severity where previous punishment was lenient. Given the significant risks posed by such activities to individuals and society, legislative intervention was required. Nonetheless, there remains an urgent need to finalize these decree‑laws as statutes enacted by the Legislative Council—a matter addressed in Subsection Two of Section Two.
3. Section Two: Compatibility of These Laws with
Constitutional Rules and Fair‑Trial Guarantees
Recently issued decree‑laws have played an important role in criminalizing many acts that were previously unpunished. However, there has also been departure from the general rules applied in the Penal Code. The legislator has tended to tighten penalties and to expand the scope of criminalization. Accordingly, Subsection One discusses fair‑trial guarantees within modern criminal policy, while Subsection Two evaluates the recent decree‑laws and their impact on fair‑trial guarantees.
3.1. Subsection One: Fair‑Trial Guarantees in Modern Criminal Policy
3.1.1. First: The Principle of the More Lenient Law (Lex Mitior)
This is a fundamental principle of criminal justice aimed at safeguarding rights and ensuring fairness. If a provision in the Penal Code is repealed and replaced by a new provision that reduces punishment or decriminalizes certain conduct, the new provision applies to acts committed in the past—i.e., before the amended law took effect. Accordingly, a defendant has the right to be tried under the law that is more lenient and humane (Najm, 2010: p. 66).
By contrast, new penalties that criminalize conduct previously lawful apply only to acts committed after the new law enters into force—consistent with Article 15 of the 2003 Basic Law, which provides that no punishment may be imposed for acts other than those committed after the law’s entry into force.
Conditions for applying the more‑lenient law include:
1) The law must be published in the Official Gazette for at least thirty days before becoming effective, thereby attaining binding force and allowing stakeholders adequate time to learn its content.
2) The new law must amend the previous penalty by reducing it—e.g., decreasing a maximum sentence from ten years’ imprisonment to five (Al-Majali, 2012: p. 114).
3) If the new law abolishes the previous penalty altogether, its effect extends to acts committed in the past that had been punishable under the old law.
4) If the new law abolishes the old penalty, it applies immediately even where a final judgment has been issued; no person may be tried or imprisoned for conduct no longer prohibited by the new law (Najm, 2010: p. 67).
5) If the new law merely modifies the previous penalty, it applies from its date of entry into force provided no final judgment has been issued; otherwise the old law continues to apply in order to preserve the stability of final judicial decisions (Al‑Hadithi & Al‑Zu’bi, 2010: p. 59).
3.1.2. Second: The Principle that Punishment Is Personal
This foundational principle—reflected in Article 15 of the 2003 Basic Law (“Punishment is personal; collective punishments are prohibited…”)—means that a person may be punished only for acts personally committed. The penalty must be directly linked to the crime of the individual offender; no other person may be made to bear the punishment for a crime in which they did not directly participate.
Thus, each person is responsible only for his or her own actions; trials and penalties are confined to the actual offender. As the Qur’anic verse states: “No bearer of burdens shall bear the burden of another” (Al‑An’am, 164)8 (Al‑Hadithi & Al‑Zu’bi, 2010: p. 313). Identifying the true offender requires precise determination of roles when multiple persons are involved, with each held accountable according to the rules governing participation in crime. This prevents the innocent from being held responsible and shields individuals from arbitrary or unproven penalties; it also advances justice by ensuring that punishment is grounded in evidence and facts rather than assumptions or personal association with the offender.
3.1.3. Third: The Principle of Proportionality between the Act and the Penalty
Proportionality is the foundation of criminal justice. It ensures that the penalty imposed corresponds to the gravity of the offense, taking into account all relevant circumstances and the harm caused to society and the victim. Penalties must not be excessive or unduly lenient relative to the offense’s impact (Ali, 2022: p. 584).
Modern systems increasingly employ alternative sanctions—measures aimed at reforming the offender rather than inflicting lengthy imprisonment. These include community service, which instills a sense of responsibility and facilitates reintegration, and electronic monitoring, which allows interaction with society under judicial supervision.
3.1.4. Fourth: Equality Before the Courts and the Presumption of
Innocence
Equality before the courts means that all individuals—regardless of gender, race, religion, or social status—enjoy the same rights during trial (Farhat, 2016: p. 35). Article 9 of the Basic Law provides: “Palestinians are equal before the law and the judiciary without discrimination on grounds of race, gender, color, religion, political opinion, or disability.” Likewise, the presumption of innocence requires that any person be deemed innocent until proven guilty by a final judicial decision (Miftah, 2017: p. 44). Article 14 of the 2003 Basic Law states: “The accused shall be presumed innocent until proven guilty in a legal trial that guarantees the right of defense; every person accused of a felony must have a lawyer to defend him.”
Accordingly, no penalty may be imposed except pursuant to a fair trial culminating in a judicial ruling—a rule also reflected in Article 15 of the Basic Law (“…no punishment shall be imposed except by a judicial ruling…”). The ruling must be issued by a competent and independent court after the accused has enjoyed all legal rights, including the right to defense, to counsel, to access and challenge evidence, and to appeal by way of both appeal and cassation, as provided in Article 14.
3.2. Subsection Two: Evaluation of Recent Decree‑Laws and Their Impact on Fair‑Trial Guarantees
The constitutional principles outlined above form the foundation of modern criminal policy and serve as the reference framework for legislative drafting. The Palestinian Basic Law embraces many of these principles, some in its preamble—such as the rule of law and the balance of powers—and others in its operative provisions, such as popular sovereignty, separation of powers, and judicial independence (Al‑Khudr, 2022: p. 17).
In this context, the President’s exercise of authority to issue decree‑laws has had a clear effect on the principle of separation of powers, one of the most prominent constitutional principles guaranteed by the 2003 Basic Law, which provides that the system of governance is based on the separation and balance of powers. Given the continued absence of the Legislative Council, the executive has to some extent assumed legislative functions—at odds with the representative constitutional philosophy that views parliament as the sole legitimate expression of the people’s will. Although Article (43) permits the President to issue decree‑laws in cases of extreme necessity, the prolonged reliance on this mechanism without subsequent legislative oversight raises questions about the legitimacy of these enactments and their conformity with the spirit of the constitution (Hamdan, 2023: p. 48).
Concerns have intensified amid ongoing political division and the disruption of the electoral process, which has effectively stalled the restoration of parliamentary life and produced a fragile constitutional reality that risks eroding the legitimacy of the legislative authority itself. Continued legislating by decree—without oversight or subsequent parliamentary approval—may exceed the President’s original powers and could constrain the future competencies of the Legislative Council upon its return. While similar provisions exist in other constitutions, such as those of Egypt and Jordan, these systems typically pair such powers with immediate parliamentary review once the exceptional circumstances cease: Article 94 of the Jordanian Constitution requires temporary regulations to be presented to parliament upon its convening or else they lapse9; Article 156 of the Egyptian Constitution requires decree‑laws to be presented to the House of Representatives within fifteen days of its convening, failing which they retroactively lapse.
Despite legitimate concerns about using decree‑laws as a political tool, the objective need to address new crimes has necessitated their use, particularly in the absence of the Legislative Council. Nevertheless, it is recommended that certain provisions be revisited when the Council reconvenes, to ensure robust parliamentary oversight.
In sum, amid the suspension of the Legislative Council’s work, decree‑laws emerged as a temporary yet necessary legislative tool to confront rapidly evolving security, social, and technological challenges, notably modern crimes such as cybercrime and the spread of narcotics. Although legitimate constitutional debate surrounds their legality and repeated use, these decree‑laws have plugged critical legislative gaps and provided an emergency legal response to contemporary issues. While some of them indicate positive moves toward strengthening judicial oversight and protecting rights, further development is needed to balance security requirements with public freedoms, including enhancing parliamentary oversight, clarifying concepts related to freedom of expression, and broadening societal participation in the legislative process. Comprehensive legislative reform remains a priority for building a balanced legal framework that reflects democratic principles and effectively meets the needs of the modern Palestinian state.
It is also noted that the decree‑laws have expanded criminalization through vague terminology, sometimes omitted gradation of penalties, tightened criminalization by equating principals with accomplices (e.g., Art. 48 of Decree‑Law No. 10 of 2018 on Cybercrime), and granted judges broad discretionary power (e.g., Art. 60 of Decree‑Law No. 11 of 2018 on the protection of material cultural heritage). These matters undermine constitutional rules concerning individual rights and fair‑trial guarantees and diverge from modern criminal policy on criminalization and punishment—necessitating careful review of these decree‑laws.
4. Results and Recommendations
Fair‑trial guarantees are fundamental rules that must be observed when enacting criminal legislation. Modern criminal policy seeks to harmonize contemporary constitutional rules concerning individual rights with modern penal laws, thereby providing integrated protection for the system of rights and freedoms, while observing the accused’s rights—chief among them the presumption of innocence. Criminal provisions must be consistent with the principle of legality, and expansion of criminalization must be constrained by proportionality. The principal findings are as follows: decree‑laws on criminalization were issued out of urgent necessity to criminalize many acts or increase penalty severity where previous punishments were lenient, but there remains a pressing need to finalize these texts as laws enacted by the Legislative Council after review and alignment with constitutional rules.
1) Decree‑laws on criminalization were issued out of urgent necessity to criminalize many acts or increase penalty severity where previous penalties were lenient; however, they require completion as statutes enacted by the Legislative Council after alignment with constitutional rules.
2) No penalty may be imposed except after a fair trial culminating in a final judicial ruling, in accordance with the constitutional principles set out in the Palestinian Basic Law, which chart the course of modern criminal policy.
3) The President’s issuance of decree‑laws has clearly affected the principle of separation of powers, leading, amid the Legislative Council’s absence, to a relative substitution of the executive for the legislative authority in a manner inconsistent with representative constitutional philosophy, which views parliament as the sole legitimate representative of the people’s will.
4) The decree‑laws exhibit expansion of criminalization through vague terminology, occasional absence of gradation in penalties, tightening of criminalization by equating principals with accomplices, and broad judicial discretion—matters that undermine constitutional rules concerning individual rights and fair‑trial guarantees and that conflict with modern criminal policy.
5) Re‑evaluate decree‑laws to ensure their consistency with constitutional rules and with modern criminal policy.
6) Ensure that fair‑trial guarantees and related constitutional principles are observed when revisiting decree‑laws.
7) Unify the criminal policy followed when adopting decree‑laws, so as to avoid discrepancies in the general rules and to ensure consistency with constitutional standards and with the system of rights and freedoms.
NOTES
1Decree‑Law No. (10) of 2018 on Cybercrime.
2Constitution of the Arab Republic of Egypt, promulgated January 18, 2014 (as amended in 2019). General Authority for Government Printing Offices.
3Decree‑Law No. (18) of 2015 on Combating Drugs and Psychotropic Substances and its amendments. Palestinian Official Gazette, No. 111 (Oct. 22, 2015).
4Decree‑Law No. (20) of 2015 on Combating Drugs and Psychotropic Substances.
5Decree‑Law No. (4) of 2016 on Juvenile Protection.
6Decree‑Law No. (1) of 2017 on Combating Money Laundering and Terrorist Financing.
7Decree‑Law No. (11) of 2018 on the Protection of Antiquities.
8The Holy Quran - Surat Al-An’am.
9Jordanian Constitution of 1952 (as amended through 2021). Prime Ministry—Jordanian Legislation.