PCHR: Constitutional court decision to dissolve PLC is political and illegal

 PNN/ Gaza/

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, ‘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:

1-   the legitimacy of the PLC lies when practicing its legislative and oversight duties. Considering that it has not convened since 2007, the PLC has lost its status as a legislative authority, and thus as its status as the Legislative Council.

2-   Article 47 bis is not applicable to the case where no periodic PLC elections are held every four years. Thus, Article 47 of the 2005 Amendment is not applicable unless there are two councils: one expired and another newly elected.

3-   According to the explanation for Article 55, the Constitutional Court finds that there are no compelling reasons for the expired PLC members to receive remunerations, and awards stipulated in the relevant laws and regulations from the date of issuing this decision.

4-   The PLC is disrupted, fully absent and has not convened since 05 July 2007. Furthermore, its term had expired on 25 January 2010. It is noteworthy that the PLC is so far completely disrupted; thus, the higher interest of the Palestinian people and the interest of the county require the dissolution of the PLC elected on 01 January 2006, and it is hereby considered dissolved starting from the date of issuing this decision.”

5-   The President of the State of Palestine shall call for holding legislative elections within six months from the date of publishing this decision in the Official Gazette.”

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, which 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:

1-        The Constitutional Court, which issued the ruling, is politicized, not independent, and has not met its establishment procedures according to the law.

2-        The reasoning given in the court’s decision is insufficient and contradicts a previous ruling issued by the court.

3-        The decision endorses the powers of the Palestinian President and makes him fully monopolize the legislative and executive powers.

4-        The Court’s call upon the President to issue a decree after the legislative elections is futile and aims at justifying the ruling and maintaining the status quo as to maintain the President’s full control over the power of legislation.

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.

PCHR’s concluded their position paper by urging the political factions, especially the Hamas and Fatah movements and civil society organizations, to strengthen efforts to end the division, stop the deterioration of the Palestinian political system, and emphasize the end of the division as a national priority and focal point. In addition, it called for initiating a comprehensive national dialogue, reaching a national consensus between the parties and creating climates convenient for holding general elections, presidential and legislative, within a reasonable period of time, and rehabilitation of the judicial authority in a way that enables it to fulfill its oversight role over the legislative and executive authorities, and resolving disputes via constitutional means, away from political influences.

PCHR also warned that holding any elections that are not based on national consensus will be doomed to failure and will directly contribute to reinforcing the division, and that the continuation of the status quo would affect the future of political and constitutional life in Palestine. The absence of the PLC has created a legal and administrative gap in case of the vacancy of the Palestinian President’s position as the PLC Speaker is supposed to replace him.

Click here to read the full position paper