Position Paper : On General Elections in the Palestinian National Authority: No Elections without Reconciliation
24 January 2010, is the due date for legislative and presidential elections in
the Palestinian National Authority (PNA).
If the Palestinian democracy was to be practiced normally and without
obstacles, the Palestinian electorate in the Occupied Palestinian Territory
(OPT) would be today standing in front of ballot boxes to elect a new president
for the PNA and new members of the Palestinian Legislative Council (PLC). Today is passing without holding such
elections due to the outstanding conflict and division in the Palestinian
second Palestinian presidential election was held in January 2005 following the
death of the late President Yasser Arafat in November 2004, and Mahmoud Abass
was elected as the President of the PNA.
In January 2006, the second legislative elections were held, and Hamas
won the majority of seats of the PLC (74 seats) defeating Fatah Movement, which
won only 45 out of the 132 seats of the PLC.
There were hopes that those results would contribute to the promotion of
the emerging Palestinian democracy through peaceful transition of authority,
but all attempts in this regard were foiled, and the results of the elections
were undermined through detention of dozens of PLC members by Israeli
occupation forces and financial sanctions and boycott imposed by the
developments were accompanied by unprecedented deterioration in the internal
security situation and obstacles to democratic reform. The state of lawlessness and assaults on the
rule of law escalated throughout the PNA controlled areas, especially in the
Gaza Strip. That situation led to an
armed conflict between Fatah and Hamas movements, in which security services of
both sides were involved, that ended with Hamas’ takeover of the Gaza Strip in
conflict created a division in the PNA, and Palestinians have been facing a
fact of having two governments; one in Ramallah under the authority of the
President, and the other one in Gaza.
Such division was reflected on all components of the Palestinian regime,
including the legislature and the judiciary.
these circumstances, the presidential election was not held on its due time,
January 2009, and the year 2009 ended without any signs that legislative
elections would be held on their due date, before 25 January 2010.
second half of 2008 witnessed widespread national controversy regarding the end
of Palestinian President Mahmoud Abbas’ term in office on 9 January 2009. Hamas and the government in Gaza claimed that the
Presidential term would end on 8 January 2009, in accordance with the end of
the four-year period since the last Presidential Election was held on 9 January
2005. They stated that, unless new
Presidential elections were held at that time, the Presidential post would
become vacant. At this point, the PLC Speaker
would temporarily fill the vacancy for 60 days, during which period new
elections would be held in order to elect a new President of the PNA, as stated
in the Palestinian Basic Law. However, Fatah movement and the government in
Ramallah claimed that Election Law No. 9 (2005), which was passed by the PLC,
extended the President’s term in order to allow simultaneous elections for the
PLC and the Palestinian Presidency to be held at the end of the PLC’s term in
Palestinian Center for Human Rights (PCHR) issued a position paper at that
time, in which it asserted that even though it realizes that the end of the
Presidential term requires holding Presidential elections prior to 10 January
2009, holding such elections require appropriate conditions and environment to
ensure fairness and transparency in all stages of the electoral process to
reflect the electorate’s will. In light
of the ongoing split between Fatah and Hamas movements, the conditions and
environment in the OPT do not ensure free and transparent elections reflecting
the will of the electorate. Current conditions do not
indicate that this environment will change in the foreseeable future if both
sides do not immediately start serious and constructive dialogue in order to
end the split and agree on elections or another solution in order to re-unify
the OPT and the political leadership of the PNA. PCHR added that if the PLC took over the
Presidential post after 9 January 2009, this would lead to further
fragmentation that would not allow for free and fair elections in the OPT
within 60 days.
legislative elections were supposed to be held before 25 January 2010, as
stipulated under the law. Also according
to the law, the Palestinian President must declare the date of legislative
elections three months in advance.
However, the year 2009 ended without any preparations for holding such
election having been completed.
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 PNA to be held on Sunday, 24 January 2010. The decree
added a new dimension to the ongoing political crisis as it raised conflicting
reactions and positions. The
presidential team considered the decree to be constitutionally legitimate and a
non-contradictory component of the
process, while Hamas and the Gaza Government considered the decree to be unconstitutional
given that the President’s term in office ended in January 2009. They thus claimed 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 presidential term.
PCHR issued a
position paper on the aforementioned presidential decree,in
which it stressed that 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. PCHR further pointed out that 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. Additionally, PCHR asserted that 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.
light of the above, PCHR emphasizes the following:
1) While supporting holding presidential and legislative elections
on their due dates, PCHR stresses that elections can never be held without the
finalization of national reconciliation and taking necessary measures to ensure
that elections are free and fair.
2) Not holding the presidential and legislative elections on
their due dates does not mean that a legal vacuum has emerged in the PNA, but
the democratic process is undermined, as the public authorization offered by
the Palestinian people in the 2005 presidential election and the 2006
legislative elections is not endless, rather it expires by 24 January
2010. From now on, no one can claim
democracy or the representation of the public will, as all must go back to the
people for a new authorization.
3) The debate over elections is not only legal, as it is part
of the ongoing political conflict. The
two parties of the conflict have employed the Basic Law and relevant laws for
narrow partisan interests, and the philosophy and spirit of the process of
legislation have been ignored.
4) Elections are not merely a goal, rather they are part of a
long-term process to establish a democratic regime and process, and periodic
elections are a cornerstone of such process.
 "Reconciliation Is a Prerequisite for Elections;
Presidential Decree is Constitutionally Sound, But Inappropriate and Impossible
without Reconciliation," Position Paper, 25 October 2009.