Expert Analysis on the Legality of New PA Elections

In light of Abu Mazen's call for new elections in the PA, Professor Nathan Brown explains the legality of such a move, as well giving his opinion on recent parliamentary, governmental and PLO actions.

Stalemate in the PLC

The PLC is not meeting since Fatah and Hamas deputies take turns boycotting sessions. Hamas has a majority of members, but with so many of them in jail, they cannot outvote Fatah or even muster a quorum on their own. They have tried to call sessions in order to:

  • Vote down the state of emergency (which has now expired anyway) and the decree-laws issued by Abu Mazen; and

  • Hold a vote of confidence in Fayad’s new government—the one that was proposed last week, not the earlier emergency government which Hamas viewed (rightly according to Brown) to be unconstitutional. Fayad’s government would not get a majority. That would leave Haniyeh in power (in Hamas’s view and the Basic Law is absolutely explicit backing them here) or Fayad’s earlier emergency government (in Fatah’s view) as a caretaker.

Hamas has explored the idea of allowing deputies in jail to vote by proxy, but for some reason they have not pushed the issue. Proxy voting is contrary to past PLC practice and it would probably be of dubious legality, but it would give them the majority they want.

Fatah, meanwhile, is pursuing a different angle. Abu Mazen issued a decree calling for the annual PLC session to begin (it was due to be held last March). Hamas said this was illegal and that only the presidium of the PLC could issue such a call. On this issues, Brown believes that Abu Mazen is correct.

Fatah did this because it would mean that the PLC would have to elect a new speaker, presidium, and committee chairs. With so many Hamas deputies in jail, Fatah could take over the body and set its agenda. Thus Hamas would have two choices: to boycott such a session (robbing it of a quorum) or to attend it and then lose control of the body. They have chosen the former path, while continuing with attempts to call their own sessions.

There are some compromise efforts reportedly underway (for instance, to re-elect Dweik as speaker but allow the deputies to elect an acting speaker while Dweik is in jail). Brown believes that these compromises are unlikely to work. Hamas and Fatah are struggling for control of the body and the various compromises mentioned would result in a victory for one or the other. There is little middle ground at present. Instead both sides will keep claiming to control the agenda and boycott each others’ sessions.

The Authority of the President

Abu Mazen’s people are threatening to issue a decree law calling for new elections although Abu Mazen himself has not claimed such a power recently.

Abu Mazen does have the authority to issue decrees with the force of law in matters that do not allow for delay at times when the PLC is not in session. This authority does NOT fall under the state of emergency but comes in a completely separate article. So it holds even with the expiration of the state of emergency. Brown writes that it would take more than a 'bit of chutzpah' to use it in this case, since it is Fatah that has boycotted sessions and thus prevented a quorum. Thus, to argue that the PLC cannot meet while actively taking steps to ensure that it does not meet is 'a little cheeky'. But that does not mean it is unconstitutional.

However, what would be absolutely and positively unconstitutional would be a call for new elections. The Basic Law was amended in 2005 (in a text not included in most translations of the document which were made in 2003) to fix the term of the PLC at four years.

Abu Mazen can issue a decree with the force of law, but he cannot amend the constitution. Only two thirds of the PLC can do that. Wire service stories have sometimes said the Basic Law is ambiguous here, yet there is not the slightest degree of ambiguity and Abu Mazen’s legal advisors know this.

Immediately after the PLC elections in January 2006, Fatah tried to ram through a constitutional amendment through the outgoing PLC allowing the President the authority to call for new elections. The attempt failed because not enough loyal deputies showed up. So it was already known in January 2006 that early elections required constitutional amendment. To claim otherwise now seems a little strange.

The PLO as a legal fig leaf?

It is possible that Abu Mazen will turn to the PLO to give some cover to his move. Brown belives that this is a 'sticky point', since for Palestinians the PLO is the authorizing body for the PA and in some sense stands above it. This is more likely a political rather than a legal move; Yasser Arafat used to use this technique (though he never went so far as to contemplate a move this drastic) and nobody found it convincing then.

Elections without Hamas Consent?

It is clear that new elections could not be held without Hamas’s consent in Gaza. It is not even clear that they could be held in the West Bank in a secure atmosphere. Significantly, Fatah seems to be preparing for the likelihood of ugly elections by switching to a system of complete proportional representation.

That will have two benefits for them. First, if there is no voting in Gaza districts, they will still be able to seat a complete PLC. Second, the smaller parties might be enticed into participating (they would do better under a proportional representation system), lending legitimacy to the process.

Additional Sources

Nathan J. Brown, What Can Abu Mazin Do? Carnegie Endowment Democracy and Rule of Law Project, 10/20/2006; full version.

Nathan Brown is a Senior Associate at the Carnegie Endowment for International Peace as well as a professor of political science and international affairs at George Washington University.

He is an expert on Palestinian reform and Arab constitutionalism, and his most recent book, Resuming Arab Palestine, presents research on Palestinian society and governance after the establishment of the PA.