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
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
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:
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.
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.
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
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
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.