"Reconciliation Is a Prerequisite for Elections; Presidential Decree is Constitutionally Sound, But Inappropriate and Impossible without Reconciliation," Position Paper, 25 October 2009.

Link: http://www.pchrgaza.ps

No Elections without Reconciliation

IMEMC, Monday January 25, 2010 03:50 by PCHR

On General Elections in the Palestinian National Authority: No Elections without Reconciliation

This is a press release by the Palestinian Center For Human Rights

Today, 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 political regime.

The second Palestinian presidential election was held in January 2005 following the death of the late President Yasser Arafat in November 2004, and Mahmoud Abbas 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 international community.

Such 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 June 2007.

This 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.

Under 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.

The 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 January 2010.

The 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.

The 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.

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 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 reconciliation 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,[1]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.

In 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.

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"Reconciliation Is a Prerequisite for Elections; Presidential Decree is Constitutionally Sound, But Inappropriate and Impossible without Reconciliation," Position Paper, 25 October 2009.

Link: http://www.pchrgaza.ps