In the introduction to the decision, it was stated that the decision “was issued in accordance with the rules of the Amended Basic Law for the year 2003 and its amendments, specifically Article 43…” This constitutional article states that “The President of the National Authority at times of necessity that cannot be delayed during times of when the Palestinian Legislative Council (PLC) is not convened can issue decisions with the force of law that must be presented to the PLC in its first sessions after these decisions; otherwise these decisions lose their authority as law….”
Yesterday’s decision replaces Elections Law No. 9 for the Year 2005 that was passed by the PLC and signed by President Abbas on 13 August 2005.
Most notable in the decision was the adoption of a complete proportional representation system in PLC elections that considers the Occupied Palestinian Territory (OPT) as one electoral unit. This electoral system is different from mixed system in Elections Law No. 9 that governed the PLC elections in January 2006, won decisively by Hamas. The mixed system divided the PLC election seats into two groups: 50% elected by proportional representation taking the OPT as one district and 50% by the majoritarian system in different districts.
The third article in the President’s decision states “Elections for the post of President are conducted by direct, free, and secret ballot. The winner is the candidate who receives an absolute majority of correct votes. If no candidate gets an absolute majority, the top two candidates compete in a second round held after 15 days. The winner is the person that gets the highest votes in the second round.
Article 36 of the decision stipulates that any candidate to the Presidential or PLC elections must “commit to the PLO as the sole legitimate representative of the Palestinian people, to the Declaration of Independence, and to the Basic Law.”
In light of this decision, PCHR points to the following observations:
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Despite full support of a full proportional representation system for the elections, PCHR rejects the mechanism if issuing this new law through the President and not through the specialized authority of the PLC as stipulated by the Basic Law.
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The President’s authority to pass decisions with the force of law during times that the PLC is not convened does not apply to this situation since the decision was issued to cancel an effective law. In addition, the decision was not issued to fill a legal vacuum; noting that the law determined that the PLC is the authority empowered with canceling or amending legislation. Thus, this article (43) should not be employed to usurp the powers of the legislature by the executive under the pretext that the PLC is not convened. PCHR views this action as undermining the results of the recent legislative elections in the OPT, and an undermining of the PLC that was elected in free elections indicative of the will of the Palestinian people.
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PCHR is extremely concerned by the systematic destruction of the Palestinian political system during the ongoing crisis between Fatah and Hamas, and the resulting split in the executive branch that has affected the judicial and legislative branches. In essence, this means destroying the political system of the PNA and paralyzing its main functions.
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The democratic process in the OPT, including the last PLC elections, were undermined by Israel starting with the detention of more than 40 PLC members from the majority party. After that, the work of the PLC was repeatedly hindered with responsibility for that falling on the two main parties: Fatah and Hamas.
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Any call for elections during the current circumstances without national consensus is an unrealistic call that will not succeed without a political agreement between all parties, especially Fatah and Hamas. The Centre warns against any attempt to hold elections in the West Bank only if no agreement is reached. This step will only deepen the separation between the West Bank and Gaza Strip.
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The Centre renews its position that the current crisis between Fatah and Hamas is a political crisis that necessitates a dialogue leading to a consensus based on effective political participation by all parties. The Centre does not envision the approval of any new elections law without agreement by the main political parties in the OPT.
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PCHR sees the positive aspects of the President’s decision, especially with regards to a full proportional representation electoral system instead of the mixed system that governed the last PLC elections, as well as establishing a mechanism to decide presidential elections among a number of candidates if none achieved an absolute majority.
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The Centre affirms its full support for the full proportional representation system, which was expressed before and after the last elections. The Centre views this system as the most suitable system to express political plurality and to enhance political participation in a strong multi-party system. The Centre reminds that the full proportional representation system was a demand for most Palestinian civil society and political parties.
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The last PLC elections proved the failure of the mixed system in expressing political weight compared to the number of votes, and stressed the need for adopting a full proportional representation system.
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Adopting a mixed system in Elections Law No. 9 for the Year 2005 was a compromise to calls for full proportional representation system and others calling for the majoritarian system established in Elections Law No. 13 for the Year 1995, which government the first PLC elections in January 1996. It is evident that Fatah’s majority in the outgoing PLC passed the mixed system; and it is believed that many persons who approved the mixed system had personal motives to improve their chances of re-election as independents, which is not possible under a full proportional representation system.
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