Introduction
On 22 December 2018, the Palestinian President declared that the Constitutional Court decided to dissolve the Palestinian Legislative Council (PLC) and called for legislative elections, confirming he will be committed to implement the decision. The following day, the Minister of Justice, Mr. ‘Ali Abu Diak, explained that the Constitutional Court issued was the explanatory decision (10/2018) dated on 12 December 2018. He explained some of the reasons behind which the Court took its decision: 1) the PLC has not functioned since being elected; 2) the PLC’s elections were not held in its due time in 2010. The Constitutional Court’s explanatory decision was then published, detailing its grounds.
According to the explanatory decision, the Constitutional Court decided that:
That step was strongly denounced by the different Palestinian parties and human rights organizations, including the Palestinian Center for Human Rights (PCHR), which emphasized that it is a political step that reinforces the division and that the justifications for this decision are baseless. Lawyer Raji Sourani, PCHR’s Director, commented on the decision and said, “The issue of the Legislative Council is par excellence political rather than legal. What has been done by the Palestinian President as requesting the Minister of Justice to file for an explanatory opinion from the Court which then issued a baseless opinion that justified the
dissolution of the PLC and then the president’s vowing to implement it, is a flagrant interference and collusion between the juridical and executive authorities against the legislative authority that would certainly lead to destroying the Palestinian political system instead of correcting the status quo.”[1]
It is noteworthy that the political conflict has intensified between Hamas and Fatah Movements after the Change and Reform bloc won the overwhelming majority of the PLC seats in the elections held in 2006, while Fatah Movement was ranked second. The PLC held its first session on 18 February 2006 in light of political bickering between the two large blocs in the PLC, significantly disrupting the PLC. Meanwhile, the Israeli authorities targeted the PLC Members by using the policy of repeatedly arresting them. Thus, the first and only round of the second PLC ended with no achievements at the legislative and oversight levels. The outcome of the first session (from March 2006 to July 2007) was enactment of one law, which was the Approval of General Budget Law in 2006 in addition to 9 questions for different ministries.
Following the bloody division and Hamas takeover of the Gaza Strip in 2007, the Palestinian President monopolized issuing legislations by issuing laws by decree based on Article 43 of the Basic Law and that are only applicable in the West Bank. On the other hand, Hamas Change and Reform parliamentary bloc has convened in the Gaza Strip, issued legislations that are exclusively applicable in the Gaza Strip, and exercised duties on behalf the Legislative Council, despite lacking the quorum necessary for the council to convene and the President’s not demanding PLC to convene as stipulated by law. PCHR has always emphasized on several occasions its rejection the issuing of any legislation before ending the division and stressed that the Palestinian President violates the necessity condition stipulated by law to issue laws by decree. PCHR also emphasizes that the meetings of the Change and Reform bloc do not represent the PLC and whatever issued by it is not a legislation.
PCHR has examined the ruling issued by the Court and the surrounding political circumstances, building a position based on three factual and legal justifications. The first is the basic and constitutional principle of independence and separation of powers; thus, the judicial decisions should be beyond reasonable distrust. The second relates to the successive facts and events monitored by PCHR, which highlights the executive authority’s interference into the judicial authority in Palestine. PCHR has reached a clear position that the Court’s decision is political, raising serious doubts about the independence of the Court. PCHR believes that the decision has insufficient reasoning, despite its emphasis on some of the factual aspects that PCHR has always addressed, such as the expiry of the PLC’s term and absence of its role. PCHR believes that the Palestinian President passes his decisions unduly through the Constitutional Court which completely undermines the right of the Palestinian
people to an independent judicial authority and political system that apply the rule of law. Politically, this decision has dealt a heavy blow to all efforts to end the Palestinian division, paving the way to a complete separation of the Gaza Strip from the West Bank. The following will explain the justifications for this position.
This paper reviews PHCR’s position in two main arguments. The first provides a legal commentary on the Court’s decision while the second provides a legal and political analysis for the political and legal foretastes and consequences of the Court’s decision. At the end, this paper presents a summary of PCHR’s position and recommendations to the decision-makers.
First: Legal Commentary on the Court’s Decision
The Court’s decision raises a lot of controversy, mainly because the power to dissolve the Legislative Council is not set forth in the Palestinian Basic Law as the only relevant text prohibits the dissolution of the PLC in case of emergency. Furthermore, the decision legal and logical reasoning is insufficient, contradicting a previous decision taken by the Court itself, and the allegations contained therein are not properly supported by facts. The following will be a legal commentary on the decision and its reasoning in three points: the limits of the Constitutional Court’s powers in relation to the dissolution and explanatory decision; the Court’s decision contradicts a previous explanatory decision; the Court’s reasoning was weak.
Law limitedly defined the powers of the Constitutional Court as the Palestinian Basic Law states in the first paragraph of Article 103 that: ” 1- A High Constitutional Court shall be established by law to consider: (a) The constitutionality of laws, regulations, and other enacted rules. (b) The interpretation of the Basic Law and legislation. (c) Settlement of jurisdictional disputes which might arise between judicial entities and administrative entities having judicial jurisdiction. 2-The law shall specify the manner in which the High
Constitutional Court is formed and structured, the operating procedures it will follow and the effects resulting from its rulings.” As long as the PLC cannot be dissolved even in case of emergency; thus, it cannot be dissolved under normal circumstances.
The Supreme Constitutional Court Law of 2006 regulates the Court’s powers relevant to the interpretation of laws, as Article (24) of the Supreme Constitutional Court Law, which was amended by Article (12) of the Law by Decree (19)/2017 on the amendment of the Supreme Constitutional Court Law No. (3) of 2006, stipulates that the Constitutional Court is exclusively competent of: “(a) Interpreting the provisions of the Basic Law.” Article (30) also identifies the required procedures and the parties entitled to request interpretation as follows:
“1) The application requesting interpretation is submitted by the Minister of Justice according to the request of the President of the PNA or to the Head of the Legislative Council, or the head of the High Judicial Council or of whom the constitutional rights were violated. 2) The request the interpretation should include: The legislative provision that requires explanation, the conflict it caused upon application,and the importance evoking the need for its explanation to achieve a harmony in application.”
The explanatory powers aims to reveal the purpose of the legislator, and the court shall not in any way ignore the intention of the legislator, whatever the excuses, as the court’s role is to interpret the provisions rather than creating them. Interpretation is significant, as the legal text may not be understood or applied apart from interpretation. Therefore, the power of explanation is serious and sensitive and requires an independent and competent judicial body. The explanatory request, the topic of this position paper, was submitted by the head of the High Judicial Council to the Office of the Minister of Justice, who referred it to the court attached with the reasons for requesting the explanatory decision[2].
The decisions of the Supreme Constitutional Court are binding on all authorities in accordance with Article (41), which stipulates: “1) The rulings of the court in the constitutional cases and the explanatory decisions are binding on all the authorities in the state and to everyone.” Therefore, the executive authorities are bound to implement all decisions issued by the Constitutional Court, or they will be held accountable in accordance with Article (106) of the Basic Law, which stipulates: “Judicial rulings shall be implemented. Refraining from or obstructing the implementation of a judicial ruling in any manner whatsoever shall be considered a crime carrying a penalty of imprisonment or dismissal fromthe public office or assigned to public service. The prevailing party may file a case directly to the competent court and the National Authority shall guarantee a fair remedy for him.”
The Court’s reasoning behind the decision to dissolve the PLC provides that the application of Article (47) bis, which stipulates that PLC’s term shall continue until a new council is elected, presumes holding elections in a periodic manner as stated in paragraph 3 of the same article. Therefore, the article shall be indivisible as the extension here contradicts the periodicity of elections as if “the term of the PLC is not time-bound.[3]” On this basis, the court considered Article 47 of the 2005 amendment not applicable to the current status of the council. This reasoning completely contradicts the explanatory decision 3/2016 previously issued by the same court, which states in paragraph 2 of its explanatory decision to the same
article (47) bis that: “The expired PLC members’ term shall be temporarily extended until the members of the new legislative council take the constitutional oath.” This decision also contradicts the constant principle in the administrative which stipulates the continuity of the public utility and avoiding administrative vacancy. Actually, the Palestinian President continuing to assume his duties despite the end of his term in 2010 is based on the same principle, although there is no clear text in the law giving him such continuity, as in the case of the Legislative Council. Therefore, ignoring the application of Article 47 under the pretext of the necessity to have elections being held periodically means that the Palestinian President shall also be disqualified for the same reason, which is not legally accepted because the court would then completely destroy the Palestinian legal and political system and create a vast gap that cannot be filled. Thus, the court should not be selective when applying its principles.
In fact, the court’s disregard of its previous decision to extend the term of the members of the Legislative Council until the new council is elected is considered a serious flaw in the reasoning. If the court has the right to contradict a decision previously issued by it, especially regarding the old decisions whose circumstances have changed, it should have explained the reason behind retreating this decision. Moreover, the court’s decision contradicts a previous precedent that happened with the previous council, which continued functioning from 1996 until 2006 under the pretext of inability to hold elections. Consequently, the Court should have explained in its reasoning why it had not been taken in consideration this factual precedent.
Eventually, the constitutional amendment of 2005, which includes Article 47 bis and clause 3, was enacted by the old Legislative Council, whose term ended in 2000 and there were no elections held at that time under the pretext of the outbreak of the Palestinian Intifada. Therefore, it is very clear that the mentioned Article intended to legitimize the continuation of the old council to assume its duties until elections are held and the new council takes office. The court ignored that and has not even refuted such argument despite being clear. Thus, we
find that the court has exceeded its role in interpretation, which would be limited to clarify the intention of the legislator rather than expressing its own opinion or dissent.
The Court clearly contradicted itself when it stated that the application of Article 47 bis required the existence of two councils, one elected and one expired. The court then called upon the Palestinian president to hold elections within six months. Actually, this means that the court itself disrupts the application of Article 47 of the Basic Law and should rather have urged the president to issue a decree to hold the elections so there would be an old council and another new, and so the transfer of power becomes in accordance with the law. The Court’s decision on dissolving the PLC on the grounds of the absence of a new elected council actually means: the condition regarding the need to have an old and another new council can never be fulfilled.
Reasoning is one of the most important and basic elements of the judicial decisions as it proves the integrity of the judiciary and promoting a mutual understanding of interpretation and argumentation rules. The strength, integrity and independence of the Judiciary are manifested through the logical reasoning and ability to cover all potential possibilities, fill all gaps and answer all possible questions. The reasoning of the explanatory decision (10)/3 came out in 13 pages only, despite the signifiocance of the decision which grant itself a new power that is not provided by the Basic Law or even the Constitutional Court Law itself. By analyzing the content of the explanatory decision, we find that it is full of rhetorical sentences, devoid of legal grounds or any similar national or international constitutional precedents on the same subject. The decision also ignored many important matters as its previous decision is contrary to the dissolution of the council, and the factual precedent relevant to the old council.
One of the most prominent examples of rhetorical sentences not based on concrete facts, what was mentioned in the reasoning that: the absence of the PLC “has a great impact on the legislation system in Palestine, the integrity of national unity, and inner national front and territory, prejudices basic elements of the society, threatens social solidarity, and affects family, ethics and the historical heritage of the Palestinian people, in addition to the disruption and absence of one of the most basic authorities for its function of legislation and supervision, which is one of the most important functions in the State, and its absent means the absence of legislations by the PLC, posing threat to the national security and legal system of the country.”[4] Moreover, the court states that the council had “lost its status as a legislative authority”[5] because it has not adhered to the President’s call for convening for its second session without indicating the legal grounds upon which this outcome was reached.
In addition, the reasoning addressed the continuation of the council without elections has caused “harm to the Palestinian people, political and legal system and parliamentary functioning in general[6] without upholding such allegations by facts or clarifying the legal or logical basis upon which this harm was the reason for the dissolution of the Council and how it would lead to ending the harm. PCHR believes that the mentioned reason should be a justification for holding the elections as soon as possible, rather than dissolving the PLC.
Thus, rather than ending the damage to people by forcing the executive authority to conduct the elections, the dissolution decision came to completely undermine the PLC. This dissolution neither solved the problem nor ended the damage, but has created a serious legal and political gap in case of the president’s death or loss of his legal capacity. According to the
2003 Palestinian Basic Law, the PLC Speaker replaces the president in case of latter’s loss of legal capacity or death as Article (37) stipulates that:
Thus, fully absenting the PLC upon the Constitutional Court’s decision to dissolve it created a serious constitutional gap which threatens the Palestinian political system in case of the vacancy of the Palestinian President’s office for any reason.
Second: Political and legal foretastes and consequences of Court’s decision
The decision of dissolving the PLC had been preceded by foretastes sparked controversy over the legality of establishing the Constitutional Court and its involvement in rendering of politically-oriented rulings, especially in terms of granting the president the authority to lift the immunity of PLC Members. The decision also leads to serious legal and political consequences for the future of the Palestinian political system. Hereinafter, this paper explained these notions into three points as follows: a constitutional court suspected of politicization; suspensions of complicity between the executive authority and judicial authority to exclude the legislative authority; and the court’s decision shutting the door on reconciliation and reinforces power absolutism.
After the Palestinian president issued the decision of (57)/2016 on 31 March 2016, to establish the Supreme Constitutional Court, the Palestinian Human Rights Organizations Council (PHROC) issued a joint position confirming that “establishing the Supreme Constitutional Court shall be a subsequent step to restore the constitutional life represented by holding general elections (presidential and legislative) and reunifying the Palestinian judiciary”.[7] Following its establishment, the Court issued several controversial rulings that revealed employing it in the political conflicts. The Court’s first controversial decision was its explanatory decision (3)/2016 to explain Articles (47 , 47 bis , 51 , and 53 paragraph 1 ) of the 2003 Palestinian Basic Law of 2003 and its amendments in 2005 issued on 03 November
2016, by which the court gave the Palestinian President the power to lift immunity of the PLC Members. The decision states:
“The president of the Palestinian National Authority did not exceed his authority in issuing the decree lifting the immunity on any PLC member while the PLC is not in session. Such a decision is not subject to a fixed standard, but rather varies with the circumstances and in accordance with any material or other effects on the economic or social circumstances in the country; and in accordance with the necessity to preserve the existence of the state, including the adoptions of rules permitting the enactment of exceptional legislation in cases when the PLC is not in session or unable to convene.”[8]
After the Constitutional Court’s decision, the political objective behind its establishment has become clearer. Therefore, the PHROC issued another position questioning the establishment of the Court, emphasizing its rulings and decisions are null and void basing on three arguments:
Actually, forming the Constitutional Court by the Palestinian President, who should practice his powers as a caretaker president in light of the expiry of his constitutional term since the presidential elections become due in 2010, violates the constitutional customs which stipulate that the caretaker bodies in a transitional phase should refrain from taking determinative decisions. The Palestinian President should have delayed such decisions after ending the division and holding the elections.
On 08 September 2018, the Palestinian President said that “Soon, We will dissolve the PLC by legal means”.[10] On 22 December 2018, the President declared the decision of the Constitutional Court to dissolve the PLC. In his speech, the president said: “We have talked about commencing to take procedures to dissolve the PLC, which has been disrupted for 12 years, but there has been a discussion here in the Central Council concerning this matter and three other matters. However, we found it requires a legal action so we decided to resort to the judiciary. Thus, some went to the Judiciary until the case reached the Constitutional Court.”[11] After that, it was found that the head of the High Judicial Council submitted a request to the Minister of Justice calling for an explanatory decision, which in turn referred it to the Supreme Constitutional Court. In fact, the interference of the Head of the High Judiciary Council to request an explanatory decision from the Court is suspicious, especially after the President confirmed that he was the one to raise the idea of dissolving the PLC and that he already discussed it. He added that “some headed to judiciary”, to later find out that the “some” refers to the Head of the High Judicial Council.
These suspicions were also reinforced by statements by the Head of the Supreme Constitutional Court, Mohammed ‘Abd al-Ghani Qassem, before he took office on 29 March 2013, and emphasized in which not recognizing superiority of the 2003 Palestinian Basic Law over other legislations and that it is merely a regular law. He also said that the PLC has ended its constitutional mandate, and previously assuming in his statements that the President has the right to remove immunity of a PLC member. He also confirmed that state of necessity gives the president a semi-absolute authorities and that exceptional legitimacy replaces ordinary legitimacy.[12] Those statements, which he reiterated in many occasions after taking office, make the Head of the Court a person who is not entrusted to participate in the explanatory decision of the Basic Law or to apply the rule of law, but shall be set aside from any case he previously gave his opinion about.
Thus, we find that the two persons at the highest level of the judiciary; the Head of the High Judicial Council and the Head of the Supreme Constitutional Court, were key contributors to the decision issued by the Supreme Constitutional Court. The first requested the explanatory decision from the court after consultations with the President while the second previously talked about his opinion on the PLC and the need to consolidate the powers of the President. When reviewing the explanatory decision, we find that the Head of the Court’s views were clearly reflected in the decision of dissolving the PLC. Thus, there are strong suspicions that are upheld by evidence of complicity between the executive and judicial authorities to exclude the legislative authority and consolidate the powers of the Palestinian President.
The court’s decision has reflected the Palestinian President’s will as he has already announced his intention to dissolve the PLC. It was reasonable for the court to call on the president to issue a decision calling for legislative elections to underpin the plot. The last provision of the explanatory decision has called upon: “the Palestinian President Mahmoud Abbas to declare the holding of legislative elections within six months starting from the date the decision is published in the Official Gazette.” Here we find that the Court avoided mentioning the presidential elections as if they are not due as well even though the decision has already addressed the powers of the President as mentioned. In fact, the court’s call for a presidential decision to hold legislative elections is reasonable in light of the court’s reasons in the decision to dissolve the PLC. However in practical terms, there are many obstacles to holding elections, especially in light of the Palestinian division and the Israeli encroachment on Jerusalem.
In light of the above, it is clear that the court’s decision in terms of holding elections will be unimplemented as it is impossible to hold them and easy to hold others responsible for this. Therefore, only the part for dissolving the PLC will be implemented, while the other important part in regard with holding the elections will be disrupted until the end of the division. This will bring us back to the first basic idea that the conflict is political par excellence, and that the use of judicial means offends the judiciary, exacerbates the problem and fosters the division. PCHR fears that the Palestinian president may resort to holding elections in the West Bank only, excluding Gaza and Jerusalem, which would have a catastrophic impact on the Palestinian political system as it would serve as a complete separation between the West Bank and Gaza Strip and the recognition of Israeli sovereignty over Jerusalem.
PCHR believes that the Palestinian presidency’s attempt to dissolve the PLC came amid fears of the president office’s vacancy for death that would lead to a heated debate over the validity of the PLC speaker in the first session convened to serve as the president. In addition, the Palestinian presidency is outraged at the steps taken by the Change and Reform bloc at the national and international levels to challenge the legitimacy of the Palestinian president. The Change and Reform Bloc has previously submitted a petition to the Secretary-General of the United Nations, Mr. Antonio Gutiros, prior to the President’s speech before the General Assembly in 2017. It incited against the Palestinian President and claiming that his term expired and he does not represent the Palestinian people. While PCHR affirms its complete rejection of exploiting the legal and political means to question the Palestinian political representation at the international level, it condemns the misuse of legal means in the dispute between the two parties to the division, emphasizing that the judiciary shall be kept away from bickering and be a real and independent reference for all disputes.
Third: Summary of PCHR’s position and recommendations
PCHR emphasizes that the Supreme Constitutional Court’s decision to dissolve the PLC is political not a legal one, has many procedural and objective flaws, and contributes to reinforcing the Palestinian division and consolidating the power i of the Palestinian President. In this, PCHR position has based on the following:
PCHR’s Recommendations
The successive crises plaguing the PA political system are political par excellence as the law tools are employed to institutionalize division and exclude any oversight role over the performance of the executive authority over the last 12 years. PCHR believes that the decision to dissolve the PLC is part of the political bickering where the tools of law were used in a way that undermines the rule of law and the independence of the judiciary. Thus:
PLC Requires Political Decision to Be Re-activated and not Judicial Decision to Dissolve It, 24 December 2018 https://pchrgaza.org/?p=11791
[2] Supreme Constitutional Court, Application (10)/(3) Supreme Constitutional Court “interpretation”
http://wafa.ps/ar_page.aspx?id=9VLwdPa844831164474a9VLwdP%3E.
[3] Supreme Constitutional Court, Application (10)/(3) Supreme Constitutional Court “interpretation”
http://wafa.ps/ar_page.aspx?id=9VLwdPa844831164474a9VLwdP%3E.
[4] Supreme Constitutional Court, Application (10)/(3) Supreme Constitutional Court “interpretation”
http://wafa.ps/ar_page.aspx?id=9VLwdPa844831164474a9VLwdP%3E.
[5] Same reference
[6] Same reference
[7] PHROC, in its message to the Palestinian President Mahmoud ‘Abbas on the Constitutional Court on 03 April 2016: https://pchrgaza.org/ar/?p=14049
[8] Palestinian Constitutional Court Interpretative Decision No. 3, 2016 http://nakbafiles.org/wp-content/uploads/2016/12/palestinian-constitutional-court-interpretive-decision-3-2016-en.pdf
[9] PHROC, Press Released issued by PHROC and PNGO titled as “The Constitutional Court did not fulfill the legal procedures of its formation, so its rulings are of no legal effect.” on 08 November 2016: https://pchrgaza.org/ar/?p=14016
[10] Ma’an News Agency: President: We will Dissolve the PLC soon”, News 08 December 2018
[11] Wafa News Agency, President in the Leadership Meeting says: Constitutional Court Issues Decision to Dissolve the “PLC” and Calls for Legislative Elections within 6 months” on 22 December 2018
[12] PHROC, Press Release issued by PHROC and PNGO titled as “The Constitutional Court did not fulfill the legal procedures of its formation, so its rulings are of no legal effect.” on 08 November 2016: https://pchrgaza.org/ar/?p=14016
Trial Version
