25 October 2009
Reconciliation Is a Prerequisite for Elections;
Presidential Decree is Constitutionally Sound, But Inappropriate and Impossible without Reconciliation
On Friday, 23 October 2009, Palestinian President Mahmoud Abbas announced that he was issuing a decree calling for free and fair presidential and parliamentary elections in the Palestinian National Authority to be held on Sunday, 24 January 2010.
This decree came amidst efforts made by Egypt to reach a national reconciliation agreement among Palestinian factions, particularly between the Fatah and Hamas movements; it was expected that this agreement would be finalized and signed at the end of this month.
The decree has added a new dimension to the ongoing political crisis as it has raised conflicting reactions and positions. The presidential team considers the decree to be constitutionally legitimate and a non-contradictory component of the reconciliation process, while Hamas and the Gaza Government consider the decree to be unconstitutional given that the President’s term in office ended in January 2009. They thus claim that the President does not have the authority to issue such a decree prior to the finalization of a national reconciliation agreement, which would necessarily include an agreement regarding the presidential office, and the problems arising following the end of the presidential term.
While the Palestinian Centre for Human Rights (PCHR) realizes that holding elections is necessary, in light of the repercussions of issuing the elections decree in the context of national reconciliation it emphasizes the following:
1) The ongoing crisis in the PNA is purely political and not legal or constitutional. The only solution is continuing the comprehensive national dialogue. Hence, the debate over the constitutionality of the decree does not cope with the essence of the conflict and its very political nature.
2) Elections are a demand of all national powers and civil society groups, but they are not possible without reaching a comprehensive national reconciliation that can end fragmentation and restore the dignity of the legislative, executive and judicial institutions of the Palestinian government, which have been impacted by the crisis and have become reflective of the ensuing fragmentation.
3) Holding elections requires an appropriate electoral environment, including allowing public freedoms; releasing political prisoners; lifting the ban imposed on political activities (those imposed on Hamas in the West Bank and on the Fatah movement in the Gaza Strip); reopening hundreds of closed associations; respecting press freedoms and free expression; and allowing all print, visual and audio mass media to work freely.
4) Protection and respect for public freedoms and human rights are also constitutionally legitimate. Chronic and deeply-rooted violations, especially under the current political fragmentation, are not only violations of human rights, they also constitute violations of the Basic Law and constitutionally ensured rights. Practices under the current state of fragmentation are irrelevant to the constitution and the law, as the constitution and the law have been undermined and have been employed to serve, enhance and sustain fragmentation.
5) Elections can never be held without appropriate judicial guarantees and without the existence of an independent and united judiciary, including a tribunal that can address electoral affairs and consider electoral conflicts. This tribunal must be regarded as neutral and independent by all parties and electoral.
6) Issuing the presidential decree means the start of an agenda that includes all stages of the electoral process, including preparing the electoral register, filing for elections, electioneering and other processes and actions, which come under the authority of the Central Elections Commission. The Central Elections Commission must be reformed in order to be acceptable to all parties as an independent and impartial body capable of organizing and supervising elections.
7) Which election law will be applied? Is it Law #9 of 2005 according to which the 2005 parliamentary elections were organized, or Decision #1 of 2007 related to general elections that has the power of a law, but which was incorporated in a presidential decree bypassing the elected Palestinian Legislative Council? PCHR have explained our position towards this law, and although we support complete proportional representation, the authorities assigned to the President to issue decrees that have the power of laws when the Palestinian Legislative Council is not convened (according to Article 43 of the Basic Law) are not applicable to the current situation, and this article must not be employed as a means to continue to depredate the authorities of the legislature by the executive under the pretext that the Palestinian Legislative Council is not convened. PCHR have also emphasized our rejection of all legislation enacted under the state of fragmentation, whether in the form of presidential decrees issued by the President under the pretext of the absence of the Palestinian Legislative Council, or by the Change and Reform Bloc in the Palestinian Legislative Council claiming that the Council is convened.
8) Before organizing elections, PCHR demand international guarantees that Israeli Occupation Forces (IOF) will not intervene, as IOF may intervene to destroy the electoral process through incursions, bombardments, arrests and restrictions on the freedom of movement between the West Bank and the Gaza Strip and inside the West Bank. Additionally, appropriate conditions must be available to ensure the participation of Jerusalemites in the elections.
9) The public authorization granted in the 2005 presidential elections and the 2006 parliamentary elections is not limitless, rather it ends no later than 24 January 2010. After this date, PCHR do not claim that a legal vacuum will emerge, but there will be an absence of democracy and no parties can claim popular legitimacy. Elections are essential.
10) Nevertheless, PCHR reiterate that in the current context elections are not possible, and it is not acceptable to hold elections without reconciliation, a comprehensive national agreement and appropriate conditions.
11) Dialogue and reconciliation are the only options available to the Palestinian people and are the essential demand of civil society and all political players. PCHR call upon all political factions to sign the Egyptian reconciliation document and to immediately undertake practical measures to end fragmentation.
 For more details about PCHR’s position towards the decision related to general elections, see PCHR’s press release issued on 04 September 2009 (Ref: 115/2007).
 For more details about PCHR’s position towards legislations enacted under the state of fragmentation, see PCHR’s Position Paper issued on 23 June 2009.