An Advisory Opinion on the Presidential Decree to "Declare a State of Emergency and to Form an Emergency Cabinet"

 

As requested by the Acting Speaker of the Palestinian Legislative Council, Mr. Ibrahim Abu al-Najaa

 

  1. According to Chapter 7, article 110, paragraph 1, of the amended Basic Law of the Palestinian National Authority (PNA), which entered into force on 18 March 2003, the President of the PNA has the authority to declare a state of emergency by Presidential Decree for no more than 30 days.  Thus, the Presidential Decree of 5 October 2003, regarding the declaration of a state of emergency was issued in accordance with the amended Basic Law.

  2. According to the amended Basic Law, including provisions of the Basic Law specific to the declaration of a state of emergency, and other laws effective in the PNA territory, there is no legal basis for the establishment of an "Emergency Cabinet" as called for in article 2 of the Presidential Decree of 5 October 2003.

  3. According to the amended Basic Law, chapter 5, article 65, the President of the PNA has the authority to nominate a person, qualified in his view, to form a cabinet.  According to article 66, the nominated Prime Minister must then present a nominated cabinet before the Palestinian Legislative Council.

  4. This is reaffirmed in article 79, paragraph 4, of the amended Basic Law which specifically provides that the "Prime Minister or any of his Ministers cannot carry out the duties of his/her post until a vote of confidence has been passed by the Palestinian Legislative Council".

  5. Article 3 of the Presidential Decree does not free the Prime Minister of the obligation to present his nominated cabinet before the Palestinian Legislative Council in order to obtain a vote of confidence.

  6. According to article 113 of the amended Basic Law, a declaration of a state of emergency cannot in any way derogate from the authority of the Palestinian Legislative Council.  Article 113 specifically states that "the Palestinian Legislative Council cannot be dissolved, nor in any way obstructed, during the period of a state of emergency".  Accordingly, it remains necessary to comply with the procedures detailed in paragraphs 3, 4, and 5 of this opinion, to

    1. Present the nominated cabinet before the Palestinian Legislative Council.

    2. Obtain a vote of confidence from the Palestinian Legislative Council in accordance with the letter and spirit of the Basic Law of the PNA.

 

 

Signed,

 Raji Sourani, Advocate

 Dr Abed Al Rahman Abu Nasser, Advocate

 Professor Fateh al-Wahedi, Advocate

 

Date: 7 October 2003