Expert Analysis on the Legality of New Palestinian Elections, on the New Government & PLO Role

Nathan Brown. Prospects for Peace. 18/07/07. What would be absolutely and positively unconstitutional would be a call for new elections. The Basic Law was amended in 2005 (in a text not included in most translations of the document which were made in 2003) to fix the term of the PLC at four years. Abu Mazin can issue a decree with the force of law, but he cannot amend the constitution. Only 2/3 of the PLC can do that. Wire service stories have sometimes said the Basic Law is ambiguous here. There is not the slightest degree of ambiguity. And Abu Mazin’s legal advisors know this. Immediately after the PLC elections in January 2006, they tried to ram through a constitutional amendment through the outgoing PLC allowing the president the authority to call for new elections. The attempt failed because not enough loyal deputies showed up. So they knew in January 2006 that early elections required constitutional amendment. To claim otherwise now seems a little strange.

According to press reports out of Ramallah PA Chairman Abbas told the Palestine Central Council today that he was moving towards new Palestinian elections. The Palestine Central Council is an organ of the PLO [Palestine Liberation Organization] and its convening is part of a larger effort to deploy the institutions of the unreformed PLO in the service of the new Ramallah government. I don't want to talk about the politics or wisdom of this move in this post but rather to share with you some expert legal analysis on the subject from the wisest counsel I know of on these issues.

Nathan Brown is a Senior Associate at the Carnegie Endowment for International Peace as well as a professor of political science and international affairs at George Washington University. He is an expert on Palestinian reform and Arab constitutionalism, and his most recent book, Resuming Arab Palestine, presents research on Palestinian society and governance after the establishment of the Palestinian Authority.

Nathan was kind enough to allow me to share his analysis of the legality of new elections, of recent parliamentary, governmental and PLO maneuvers on ProspectsForPeace.com. Here is Nathan Brown's understanding of the legal situation:

1. The PLC is not meeting since Fatah and Hamas deputies take turns boycotting sessions. Hamas has a majority of members, but with so many of them in jail, they cannot outvote Fatah or even muster a quorum on their own. They have tried to call sessions in order to:

· Vote down the state of emergency (which has now expired anyway) and the decree-laws issued by Abu Mazin; and

· Hold a vote of confidence in Fayyad’s new government—the one that was proposed last week, not the earlier emergency government which Hamas viewed (rightly in my opinion) to be unconstitutional. Fayyad’s government would not get a majority. That would leave Haniyya in power (in Hamas’s view and the Basic Law is absolutely explicit backing them here) or Fayyad’s earlier emergency government (in Fatah’s view) as a caretaker.

Hamas has explored the idea of allowing deputies in jail to vote by proxy, but for some reason they have not pushed the issue. Proxy voting is contrary to past PLC practice and I suspect would be of dubious legality, but it would give them the majority they want.

Fatah, meanwhile, is pursuing a different angle. Abu Mazin issued a decree calling for the annual PLC session to begin (it was due to be held last March). Hamas said this was illegal and that only the presidium of the PLC could issue such a call. On this one, I think Abu Mazin is right.

Fatah did this because it would mean that the PLC would have to elect a new speaker, presidium, and committee chairs. With so many Hamas deputies in jail, Fatah could take over the body and set its agenda. Thus Hamas would have two choices: to boycott such a session (robbing it of a quorum) or to attend it and then lose control of the body. They have chosen the former path, while continuing with attempts to call their own sessions.

There are some compromise efforts reportedly underway (for instance, to reelect Dweik as speaker but allow the deputies to elect an acting speaker while Dweik is in jail). I don’t see these compromises as working. Hamas and Fatah are struggling for control of the body and the various compromises mentioned would result in a victory for one or the other. I see no middle ground at present. Instead I think that both sides are going to keep claiming to control the agenda and boycott each others’ sessions.

2. Abu Mazin’s people are threatening to issue a decree law calling for new elections. I have not seen Abu Mazin himself claim such a power recently.

Abu Mazin does have the authority to issue decrees with the force of law in matters that do not allow for delay at times when the PLC is not in session. This authority does NOT fall under the state of emergency but comes in a completely separate article. So it holds even with the expiration of the state of emergency. It would take more than a bit of chutzpah to use it in this case, since it is his party that has boycotted sessions and thus prevented a quorum. Thus, to argue that the PLC cannot meet while actively taking steps to ensure that it does not meet is a little cheeky. But I would not regard it as clearly unconstitutional.

However, what would be absolutely and positively unconstitutional would be a call for new elections. The Basic Law was amended in 2005 (in a text not included in most translations of the document which were made in 2003) to fix the term of the PLC at four years. Abu Mazin can issue a decree with the force of law, but he cannot amend the constitution. Only 2/3 of the PLC can do that. Wire service stories have sometimes said the Basic Law is ambiguous here. There is not the slightest degree of ambiguity. And Abu Mazin’s legal advisors know this. Immediately after the PLC elections in January 2006, they tried to ram through a constitutional amendment through the outgoing PLC allowing the president the authority to call for new elections. The attempt failed because not enough loyal deputies showed up. So they knew in January 2006 that early elections required constitutional amendment. To claim otherwise now seems a little strange.

3. It is possible that Abu Mazin will turn to the PLO to give some cover to his move. This is a sticky point, since for Palestinians the PLO is the authorizing body for the PA and in some sense stands above it. I would view this more as a political than a legal move; Yasser Arafat used to use this technique (though he never went so far as to contemplate a move this drastic) and nobody found it convincing then.

4. It is clear that new elections could not be held without Hamas’s consent in Gaza. It is not even clear that they could be held in the West Bank in a secure atmosphere. Significantly, Fatah seems to be preparing for the likelihood of ugly elections by switching to a system of complete proportional representation. That will have two benefits for them. First, if there is no voting in Gaza districts, they will still be able to seat a complete PLC. Second, the smaller parties might be enticed into participating (they would do better under a proportional representation system), lending legitimacy to the process.

http://www.prospectsforpeace.com/2007/07/expert_analysis_on_the_legalit.html