Position Paper: Palestinian Elections in Light of the Ongoing Fragmentation
In its session held on 08 February 2011, the Palestinian government in Ramallah decided to organize elections in local councils on Saturday, 09 July 2011, and requested the Central Elections Commission (CEC) to initiate necessary technical preparations.
This decision again opens the controversy over the elections, which reflects the fragmentation in the Palestinian Authority that has been ongoing since June 2007. While the decision has been accepted and welcomed by some political parties, most notably the Fatah movement, it is rejected by other political parties, such as the Hamas movement. It is not the first time that the organization of elections in local councils has been announced. On 08 February 2010, the Cabinet of the Palestinian Government in Ramallah called for elections in all local councils in the West Bank and the Gaza Strip on 17 July 2010. Further, on 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 24 January 2010.
Over the three past years, the Palestinian Centre for Human Rights (PCHR) has followed the controversy closely and issued statements clearly outlining its position regarding the holding of elections. PCHR has expressed its position on the organization of elections — whether presidential, legislative or local — on various occasions.
As the end of Palestinian President Mahmoud Abbas’ presidential term, which is four years in accordance with the Palestinian Basic Law, in January 2009 became imminent, a controversy over the elections emerged. The media reported opposing statements made by official and party figures within the Fatah and Hamas movements and the institutions of the Palestinian Authority, which are fragmented between the two parties. Hamas adopted a position suggesting that the term of the President expires four years after his election and that in absence of new Presidential elections, the position of the President becomes vacant and the President of the Legislative Council should occupy the position of the President for 60 days, during which new elections should be held. Fatah adopted a different stance, suggesting that
the presidential term was extended by virtue of the Elections Law No. 9/2005 to allow the organization of presidential and legislative elections after the expiry of the term of the Legislative Council in 2010.
At the time, PCHR issued a position paper entitled “Controversy Over End of Presidential Term in Office.” In
this paper, PCHR expressed, inter alia, its full backing of the principle of regular elections, stemming from the Center’s complete support for democratic reform. However, PCHR stressed that holding elections requires certain conditions and an environment that ensures fairness and transparency throughout the electoral process, in order to ensure that the results reflect the choice of the electorate. This prerequisite is not fulfilled in the state of political fragmentation, as evidenced by violations committed by the two governments in Gaza and Ramallah against public freedoms, including the fundamental rights and freedoms of Palestinians.
The controversy over the elections was renewed when Palestinian President Mahmoud Abbas announced on 23 October 2009 that he was issuing a decree calling for free and fair presidential and parliamentaryelections in the Palestinian National Authority, to be held on 24 January 2010. The Hamas movement adopted a position suggesting that it is impossible to hold elections in view of the current fragmentation and that the Basic Law stipulates that the Legislative Council continues to perform its duties until the new members of the Legislative Council take the constitutional oath. On 25 October 2009, PCHR published a position paper concluding that the Presidential Decree is constitutionally legitimate, but that it is impossible to enforce it in light of the ongoing fragmentation and that Palestinian national reconciliation is a vital precondition for elections.
The third wave of controversy over the elections began after the Council of Ministers in Ramallah decided on 08 February 2010 to hold local elections in the West Bank and the Gaza Strip on 17 July 2010. It should be noted that the terms of the elected local councils expired in May 2005 at the latest and that the two governments in the West Bank and the Gaza Strip appointed new local councils in the West Bank and the Gaza Strip directly, including representatives who are close to the two governments in those local councils whose term expired or in councils that were not elected. The elections of the local councils had been held in phases, beginning in late 2004. The first part of the first phase of the local elections was organized on 23 December 2004 in 26 local councils in the West Bank while the second part of the first phase was organized in 10 local councils in the Gaza Strip on 27 January 2005. The second phase of the local elections began on 05 May 2005 in 84 local councils in the West Bank and Gaza Strip. The third phase of these elections, which was supposed to be held
in the main cities, has not been organized and these local councils are currently directly appointed by official bodies.
PCHR also published a position paper concerning the call for local elections in February 2010. In this paper, PCHR stated that the organization of local elections is unrealistic in view of the ongoing political fragmentation. The Palestinian Cabinet decided later, in its 10 June 2010 session, to cancel local elections and required that these elections be rescheduled for a later point in time. On 13 December 2010, the Higher Court of Justice in Ramallah issued a decision annulling the Cabinet’s 10 June 2010 decision to cancel local elections, after one of the electoral candidates challenged the Cabinet’s decision before the Court.
In view of the renewed controversy over Palestinian elections, PCHR would like to clarify its position as follows:
1. PCHR stresses its full support for democratic reform in the Palestinian Authority and stresses that democracy requires, inter alia, regular, fair and transparent elections through which the electorate can freely choose representatives who represent the will of the people and who are subject to the people’s accountability.
2. Elections must be part of a comprehensive democratic process. Any presidential, legislative, or local elections require certain conditions necessary for the organization of fair and transparent elections that reflect the will of voters. These conditions most notably include the upholding of public freedoms, including the right to freedom of opinion and expression, the right to peaceful assembly and the freedom of association; the release of all political prisoners; the lifting of prohibitions imposed on political activities (Hamas activities in the West Bank and Fatah activities in the Gaza Strip); as well as permission for all print, audio and visual media institutions to operate freely.
3. PCHR points to the serious and unprecedented deterioration of public freedoms and the ongoing violations of Palestinians’ human rights in PNA territories. According to PCHR monitoring and investigations, the vast majority of intra-Palestinian human rights violations were motivated by the political fragmentation. PCHR stresses that the protection of Palestinian rights and freedoms is constitutionally required and that the violations committed in the West Bank and the Gaza Strip constitute violations of the Basic Law. Accordingly, the end of political fragmentation is a principal precondition for fair and transparent elections that reflect the opinion of the electorate.
4. Elections cannot be organized without ensuring necessary judicial guarantees and without the existence of a unified and independent judiciary, especially the existence of a neutral and independent court competent to settle disputes relating to elections.
5. The ongoing crisis in the Palestinian Authority is a political crisis. It is not a legal or constitutional crisis. The only way to end this crisis is through comprehensive national dialogue.
6. The public mandate granted by the people in the presidential elections of 2005 and in the legislative elections of 2006 is not an open mandate. This mandate came to an end when the term of the Legislative Council expired on 24 January 2010. Thus, while PCHR does not claim that a legal vacuum has emerged, certainly no political representative can currently claim to be practicing democracy or representing the will of the public. The people must provide a new mandate in conjunction with comprehensive national reconciliation in preparation of the environment for elections.
7. Political forces and civil society organizations must prioritize ending the ongoing fragmentation and aim for national reconciliation. Prompt and practical measures must be taken in order to end the ongoing political fragmentation in the Palestinian Authority because it is the Palestinian people and their national cause who pay the price. The Palestinian people are further than ever from seeing an end of Israeli occupation and from the achievement of their legitimate and inalienable rights to liberation and self-determination.
 The Palestinian presidential elections were organized on 09 January 2005 and Mahmoud Abbas took over power in accordance with the results of these elections. Article 36 of the 2005 Amendment to the Basic Law stipulates that: “The term of the presidency of the National Authority shall be four years. The President shall have the right to nominate himself for second term of presidency, provided that he shall not occupy the position of
the presidency more than two consecutive terms.”
 For more information about PCHR’s position from President Abbas’a call for organizing general elections, please refer to: “Reconciliation Is a Prerequisite for Elections; Presidential Decree is Constitutionally Sound, But Inappropriate and Impossible without Reconciliation,” published by PCHR on 25 October 2009.
 For more information, please see: “Position Paper: On the Call for Local Elections in Palestinian Authority
Territories in July 2010,” published by PCHR on 18 February 2010.
 For more information about PCHR’s position on the Cabinet decision to cancel local elections, please see PCHR press release: “PCHR Welcomes Decision to Cancel Local Election Due to the Lack
of Appropriate Conditions for Fair Elections,” published on 15 June 2010,
reference no.: 47/2010.