Only an appearance of US action


Article 79(4) of the Palestinian constitution (the Basic Law) states:


“The Prime Minister and any of the Ministers shall not assume the duties of their positions until they obtain the confidence of the PLC.” [1]


Article 67(3) states that


“Confidence shall be granted to the government, if it obtains the absolute majority of the PLC Members.”


the PLC being the 132-member Palestinian Legislative Council, in which Hamas has 74 seats and Fatah 45.


In other words, the Palestinian constitution forbids a new set of ministers from assuming “the duties of their positions until they obtain” the endorsement of “the absolute majority of the PLC Members”, that is, 67 members.


On 14 June 2007, President Abbas declared a state of emergency and dismissed the National Unity Government, led by Hamas Prime Minister, Ismail Haniyeh (as he is entitled to do under Article 45 of the Basic Law) and appointed Salam Fayyad, the Finance Minister in the previous government, as Prime Minister and invited him to form a government.


Salam Fayyad’s popularity in Washington is his main qualification for the post, but he is an elected member of the PLC.  He is the leader of the 2-member Third Way party, which got 2.4% of the “national list” vote in the elections in January 2006.  By contrast, Hamas got 44.5% of the “national list” vote and won 74 seats overall.


Salam Fayyad nominated a set of ministers as requested by the President, with himself as Foreign Minister and Finance Minister as well as Prime Minister.  However, he has not made any attempt to obtain the confidence of the PLC for himself and his ministers, so the Basic Law bars them from assuming “the duties of their positions”.  In fact, the PLC has never met.


Quartet approval

The illegitimacy of this Fayyad-led entity under the Palestinian constitution hasn’t stopped the Quartet (the US, the EU, Russia and the UN) from recognising it as a legitimate Palestinian government and dealing with it.  This is in stark contrast to their behaviour towards the Hamas-led National Unity Government, which on 17 March 2007 received a vote of confidence from the PLC by 83 votes to 3.  Over half of Hamas members of the PLC were in Israeli custody at the time (and still are in custody), otherwise the majority would have been over 120, rather than 80.


A Quartet statement of 16 June 2007 approved of the overthrow of this legitimate government, saying:


“The Quartet expressed understanding and support for President Abbas’ decisions to dissolve the cabinet and declare an emergency, given the grave circumstances. The Quartet recognized the necessity and legitimacy of these decisions, taken under Palestinian law, and welcomed President Abbas’ stated intention to consult the Palestinian people at the appropriate time.” [2]


This doesn’t explicitly state that the Fayyad-led entity is a legitimate government under the Basic Law – perhaps deliberately so, since it obviously isn’t – but a later statement on 19 July 2007 backed the Fayyad-led entity explicitly:


“The Quartet expressed support for the Palestinian Authority government headed by Salam Fayyad, which is committed to the political platform of President Abbas, that reflects the January 30, 2006 Quartet principles.” [3]


Declaration of emergency

President Abbas, no doubt advised by Washington, has attempted to give the Fayyed-led entity legitimacy by describing it as an emergency government, which, it is implied, does not require the normal constitutional procedure, specifically endorsement by the PLC, to be followed.  It is true that Abbas was entitled to declare a state of emergency under Article 110(1) of the Basic Law, which states:


“The President of the National Authority may declare a state of emergency by a decree when there is a threat to national security caused by war, invasion, armed insurrection, or at a time of natural disaster for a period not to exceed thirty (30) days.”


Since the Palestinian territories are under occupation (and have been for 40 years) it would seem that a state of emergency could lawfully be declared at any time.  But, the President cannot maintain it for more than 30 days without the support of two thirds of the members of the PLC, since Article 110(2) says:


“The emergency state may be extended for another period of thirty (30) days after the approval of two thirds of the Legislative Council Members.”


That would appear to mean two thirds of the 132 PLC members, that is, 88.


President Abbas declared a state of emergency on 14 June 2007.  It hasn’t been renewed by the PLC under Article 110(2), so it came to an end on or about 4 July 2007.


More fundamentally, the Basic Law provisions with regard to a state of emergency (Articles 110 to 115) don’t allow the President to amend the Basic Law itself to do away with the Article 79(4) requirement that


“The Prime Minister and any of the Ministers shall not assume the duties of their positions until they obtain the confidence of the PLC.”


The Basic Law is unambiguous on the question of its own amendment, Article 120 stating:


“The provisions of this Basic Law shall not be amended except with two thirds majority of the Members of the Legislative Council.”


So, with or without a state of emergency, the Fayyad-led entity is not a legitimate government under the Basic Law.


New elections?

But isn’t President Abbas going to “consult the Palestinian people at the appropriate time” about these matters, to use the words of the Quartet statement of 16 June 2007?  In fact, Article 47(3) of the Basic Law (as amended in August 2005 [4]) prescribes that PLC elections be held every four years:


“The term of the Legislative Council shall be four years from the date of its being elected and the elections shall be conducted once each four years in a regular manner.”


So, elections cannot be held before January 2010 without an amendment to the Basic Law, which requires a two thirds majority in the PLC.


Unfortunately for President Abbas, the Palestinian constitution (the Basic Law) doesn’t allow him to override the Hamas victory in the elections of January 2006 – legitimately – either by appointing a new government or by holding new elections in the near future in the hope of getting a different result.


Changing electoral law

The Beirut Daily Star carried a story on 3 September 2007 entitled Abbas changes electoral law to sideline Hamas.  This began:


“Palestinian President Mahmoud Abbas said on Sunday [2 September 2007] he had changed Palestinian electoral rules in a step that could make it harder for Hamas to keep the parliamentary majority it won last year.  Abbas said he had issued a new election law which would change the way Palestinians vote in any upcoming parliamentary elections, boosting his Fatah faction … against rival Hamas … .”  [5]


One wonders why he bothers to “change” the electoral law so that Fatah has a better chance of winning.  Why bother about elections at all, when he believes he has the authority to make and unmake law at will, without reference to the democratically elected legislative council?  Why risk Hamas winning again?


Two aspects of the “amended” law are aimed at disabling Hamas.  The first, as reported in the Daily Star, “requires all presidential and parliamentary candidates to recognize the Fatah-dominated Palestinian Liberation Organization (PLO)”.  The PLO is the body that has engaged in negotiation with, and made agreements with, Israel.  Hamas has never been part of the PLO.  Negotiations to have them included have been going on for some time and the Mecca Agreement in February 2007 called for the ongoing negotiations to include Hamas in the PLO to be accelerated.  This amendment to the electoral law proposed by Abbas is a transparent attempt to keep Hamas off the ballot paper, unless it signs up to past PLO agreements, including the “recognition of Israel” (whatever that means).


The second aspect of the “amended” electoral law is about the mode of election.  In the last PLC elections, half of the PLC seats were elected through a national list system and half from local constituencies.  What Abbas is proposing is that the latter be abolished and all 132 seats be elected by means of a national list system.  The reason for his proposal is obvious:  in the national list system in January 2006, Hamas won 44.45% of the vote (and 29 seats) and Fatah won 41.43% (and 28 seats) [6], whereas, for reasons that are not clear, in the constituency section Hamas won 45 additional seats, whereas Fatah won only 17 [7], giving Hamas a 74 to 45 overall victory.


President Abbas announced this change at a press conference with the visiting High Representative of the EU, Javier Solana.  Solana didn’t object to this attempt by President Abbas of Fatah to rig future PLC elections in favour of Fatah.  Just imagine the outcry from the EU if the President of Belarus, or another politician that the West doesn’t look kindly upon, were to make such an obvious attempt to fix an election and eliminate opposition.  Economic sanctions would be on the cards, if not military intervention.


No reward

Israel has embraced the Fayyad-led entity with a great public show of enthusiasm.  A “partner for peace” now exists on the Palestinian side, one could be forgiven for thinking.  But, despite innumerable meetings between Prime Minister Olmert and President Abbas, after much talk about making life easier for Palestinians in the West Bank, what is there to show for it?


A mere 250 prisoners have released, out of a total of over 10,000 held by Israel; a small fraction of the Palestinian revenue stolen by Israel since January 2006 has been given back (Adam Entous of Reuters [8] suggests that, as of 1 July 2007, $120 million, a sixth of the total stolen, had been returned); as for allowing more freedom of movement in the West Bank, Israel has done nothing.


Recently (29 August 2007), the would-be prime minister, Salam Fayyad, was asked by Jordanian newspaper al-Dustour “about Israel's ongoing activity in the West Bank and assassinations in the Gaza Strip”.  He replied:


“The Palestinian citizens must realize that not everything reported in the media – according to which Israel will ease restrictions and create a new atmosphere – actually takes place.


Israel did not carry out even one move it committed to in terms of the removal of checkpoints, the humiliation of our people at those checkpoints, not to mention the raids, assassinations and settlements.” [9]


International meeting

Of course, there has been activity by the US and more is promised.  Secretary of State, Condoleezza Rice, has been in the region on several occasions recently and has been busy sketching out a “political horizon” for a Palestinian state, in order to avoid concrete action to bring a Palestinian state about presumably.  And on 16 July 2007, President Bush announced at the White House:


“The world can do more to build the conditions for peace. So I will call together an international meeting this fall of representatives from nations that support a two-state solution, reject violence, recognize Israel's right to exist, and commit to all previous agreements between the parties. The key participants in this meeting will be the Israelis, the Palestinians, and their neighbors in the region. Secretary Rice will chair the meeting. She and her counterparts will review the progress that has been made toward building Palestinian institutions. They will look for innovative and effective ways to support further reform. And they will provide diplomatic support for the parties in their bilateral discussions and negotiations, so that we can move forward on a successful path to a Palestinian state.” [10]


This is yet more appearance of action in order to avoid concrete action to bring about a Palestinian state.  Camp David Mark II, it is not.  That much is clear from the President’s statement.  But for the avoidance of doubt Prime Minister Olmert has stated categorically that Israel will not discuss final status issues at this “international meeting”, concrete issues such as the borders of a Palestinian state, the status of Jerusalem and the right of return of Palestinian refugees to Israel.


This appearance of action on Palestine by the US has been prompted by a need to placate its Sunni friends in the region – Egypt, Jordan, Saudi Arabia and the Gulf States – when it is in difficulty in Iraq.  This appearance of action on Palestine has been accompanied by a real $20 billion arms deal over 10 years to its Sunni friends (plus $30 billion of military aid to Israel over the same period to counter Israeli objections to the deal) [11]   


But don’t expect any US pressure on Israel to end its occupation of Palestinian lands, or to do the slightest thing to make life easier for Palestinians under occupation.  And don’t expect the EU to do anything other than tail end the US.



David Morrison

Labour & Trade Union Review

10 September  2007