Al Mezan calls president Abbas to revoke his decision issuing a new election law; calls PLC to perform its legislative role

05/09/07. On 2 September 2007, president Mahmoud Abbas issued a law-making decision (hereinafter Decision); the law it makes being without a serial number. The Decision annuls the Palestinian General Elections Law No. 9/2005 and its amendments. The new law includes 121 articles distributed on 13 chapters. Its preamble invokes the provisions of the Amended Palestinian Basic Law (temporary constitution); and particularly its article 43.

Al Mezan Center for Human Rights views with much concern the issuance of this Decision, which comes in the context of continued escalation of the internal political crisis in the Occupied Palestinian Territories (OPT) which threatens the very social and political textile in OPT.

Al Mezan is also concerned by the frequent issuance of law-making decisions by the president since June 2007 without justified necessity. This will only contribute undermining the foundations of the Palestinian political regime. It seriously threatens the principle of the rule of law of separation of powers; which is gravely affected by the increasing marginalization of the Palestinian Legislative Council (PLC).

Al Mezan considers that some of the presidential decrees and decisions as a part from the power struggle and not linked to an objective urgency that necessitate the interference of the president in legislation, for the exigencies of the situation do not require such a level of interference. Moreover, the Center realizes that the current internal struggle over power in the OPT is essentially political.

This said, Al Mezan finds it necessary to clarify its position regarding this development, which is essentially founded on the provisions and limitations of the Palestinian law. The Center sums up its remarks on this Decision as follows:

1. The Palestinian Basic Law authorizes the president of the Palestinian National Authority (PNA) to issue law-making decisions; as stipulated in article 43 of the Amended Palestinian Law, of 2005. However, this power is limited to exceptional situation. Article 43 provides that the president of the PNA shall have the right, in situations of urgency that cannot bear delays when the PLC is not in a regular legislative period, to issue decisions that have the force of the law. These decisions, the same article continues, shall be presented before the PLC at its first convention after the issuance of the decisions. Otherwise, it asserts, these decisions will cease to have the force of the law. Should such decisions be presented before the PLC in the manner mentioned above, and not approved by the PLC, they shall cease to have the force of the law.

2. The Palestinian Basic Law limits the exercise of legislative powers by the president only in exceptionally urgent cases that cannot bear delay. It is Al Mezan's view that this condition is not met in the case at hand. It disputes that there exists a justifiable emergency necessitating the Decision on general elections. It bases this judgment on two reasons:

a. The Basic Law assumes that an emergency which cannot bear delay means an unexpected development or crisis which requires an immediate resolution. Apparently, this is not the case as far as the Decision is concerned with future elections.

b. It has been acknowledged by many of the president's aides that there was no intention to hold early elections currently soon. This is also affirmed by article 2 in the new law, which states that the president shall issue a decree calling for presidential and legislative elections at least three months before the end of the president's period in office or the PLC's period. This decree shall determine a date for elections and shall be published in the Palestine Chronicle. This is indicative of the fact that an emergency necessitating the issuance of such a Decision does not exist.

3. As mentioned above, Article 43 of the Palestinian Amended Basic Law authorizes the president to issue decisions that have the power of law. Nonetheless, this authority is restricted by the condition that such a decision is issued only when the PLC is not in its legislative period, be it regular or irregular. Given that the PLC is in a legislative period now, despite its failure to convene its session for various reasons, this condition is not duly met.

4. The PLC's current failure to convene its sessions or to perform its tasks requires that the two dominant parliamentary blocks; Hamas' Change and Reform Block and Fatah's Martyr Yasser Arafat Block, take practical steps to preserve their legislative powers as mandated by their constituencies and by the law. They should start the legislative and monitoring tasks instead of withdrawing and leaving the space for the executive to confiscate the legislative powers at its convenience by invoking the aforementioned Article 43.

5. The excessive appeal to Article 43, which authorizes transfer of legislative powers to the executive represented by the President in this case, constitutes an inadequate practice and is contrary to the purposes pursuit by it; dealing with a strictly urgent situation. It produces an unbalanced relationship between the powers where a dominant executive excessively seizes the powers of the legislature and judiciary, and confiscates fundamental freedoms. This situation is contrary to the purposes of the Basic Law, which explicitly sets the separation of powers and the rule of law as central principles of the PNA's government.

6. The 2007 decision fluctuates with General Elections Law No. 9/2005 and its amendment, which is already in force, by adopting a full proportional representation system with OPT as one constituency, as opposed to the mixed system according to which the last election was organized in January 2006. The Decision and its new law also deviate from the Law No. 9/2005 regarding the definition of residents, the candidacy conditions and other electoral processes and procedures.

7. Articles 36(5) and 46(6) add new criteria for the conditions of candidacy for the President and PLC offices. According to the new decision, candidates have to "commit to the Palestine Liberation Organization as the sole legitimate representative of the Palestinian people, and to the Declaration of Independence as well as the provisions of the Basic Law". Al Mezan finds these new conditions contrary to the Basic Law for the following reasons:

a. The conditions constitute unjustifiable, unnecessary constraints that deviate from accepted procedures in democratic electoral laws;

b. They contravene with Article (9) of the Amended Basic Law, which assert that "Palestinians are equal before the law and the judiciary without any form of discrimination on the basis of ethnicity, gender, color, religion, political opinion of disability".

c. They are also in breach of Article (19) of the Amended Basic Law which renders any infringement upon or restriction of the freedom of opinion and expression illegal as long as such a restriction is not provided for by the law.

d. They moreover breach Article 3(26) of the Amended Basic Law, which establish the right of every Palestinian citizen to participate in political life, whether individually or collectively with others, and in particular throughout voting and candidacy for offices in order to choose their representative by public election in accordance with the law.

Based on these observations Al Mezan Center reiterates its calls for Palestinian-Palestinian political dialogue as the only way to draw to a close the internal disparity. Otherwise, such matters of law must be decided by courts.

Al Mezan calls on president Mahmoud Abbas to revoke this Decision, which introduces a new elections law. Instead, the president should pressure the parliamentary blocks in the PLC to allow for its convention and to practice its legislative role as set out by the law. Al Mezan also asserts the necessity of national reconciliation and harmony as far as national elections are involved.