Democracy in
“It’s interesting that extremists attack democracies around
the Middle East, whether it be the
Believe it or believe it not, those
are the words of President Bush, as he stood beside Israeli Prime Minister,
Ehud Olmert, at the White House on 19 June 2007.
President Bush was speaking a few
days after he had finally succeeded in undoing the outcome of the democratic elections
to the Palestinian Legislative Council (PLC) in January 2006, when Hamas won 74
out of the 132 seats (compared with Fatah’s 45). It is worth emphasising that nobody, not even
President Bush himself, questioned the fairness of these elections. Hamas had won, and won fair and square.
NUG dismissed
On 14 June 2007, with
Salam Fayyad’s popularity in
An economist who lived in the United
States for twenty years, he was an official of the World Bank from 1987-95 and
later the IMF representative to Palestine until 2001, when the US forced Yasser
Arafat to accept him as Finance Minister.
He served in this post until the Fatah government resigned after their
defeat by Hamas in January 2006.
Salam Fayyad was elected to the PLC
in those elections as the leader of the
So, a Hamas Prime Minister, whose
party got 44.5% of the “national list” vote eighteen months ago, and won 74
seats overall, has been replaced by a Third Way Prime Minister, whose party got
2.4% of the “national list” vote, and has 2 seats overall. That’s democracy in
NUG the lawful government
Hamas has
objected to the dismissal of the National Unity Government led by Ismail Haniyeh and
its replacement by a so-called “emergency” government. It has objected on the grounds that under the
Palestinian constitution – the Basic Law – a new government must seek the
approval of the PLC and, until it receives that approval, the existing
government continues to act in a caretaker capacity.
As we will see
by examining the Basic Law, Hamas is absolutely correct in these assertions. So,
at the time of writing (8 July 2007), the new government led by Salam Fayyad has not received a vote
of confidence from the PLC, so the National Unity Government led by Ismail
Haniyeh is still the
lawful government.
(What seem to
be a reliable version of the Basic Law, which came into force on 19 March 2003,
is available on the website US Agency for International Development here [1]. It was later amended on 13 August 2005 – see [2] – to, inter
alia, set the term of the PLC to 4 years.)
Article 45 of the Basic Law states:
“The President of the National Authority shall
select the Prime Minister, and task him to form his government. The President
shall have the right to remove him, and to accept his resignation, …”
So, Abbas had the power to dismiss Ismail Haniyeh as Prime Minister and to ask
Salam Fayyad to form a new government.
Article 45 is unambiguous on that score.
But Article 78(3) is equally
unambiguous that the outgoing government should serve in a caretaker capacity
until the new government is formed:
“(3) Upon the completion of the term of the Prime Minister
and his government, they will temporarily exercise their work, as a winding up
government, during which they will make decisions only to run the executive
work, until a new government is formed.”
Confidence of the PLC
Article 79(4) is also unambiguous
that, as far as a new government is concerned:
“(4) The Prime Minister and any of the Ministers shall not
assume the duties of their positions until they obtain the confidence of the
Legislative Council.”
How this is done is specified in
Article 67:
“(1) Once the Prime Minister selects the members of his
government, he shall submit a request to the Legislative Council to hold a
special session for vote of confidence. Vote of confidence shall take place
after listening and discussing the written ministerial statement, which
specifies the program and the policies of the government. …
“(2) The vote of confidence shall be collectively for the
Prime of Minister and members of his government, unless the Legislative Council
decides otherwise by absolute majority.
“(3) Confidence shall be granted to the government, if it
obtains the absolute majority of the PLC Members.”
Given that
This means that Fatah, with only 45
seats, hasn’t enough seats to bring a lawful government into being on its
own. To put it another way, if the Basic
Law is adhered to, no lawful government can be formed without support from
Hamas, since it won over 50% of the seats on the PLC.
State of emergency
But, hasn’t President Abbas declared
a state of emergency and doesn’t that bestow upon him extraordinary powers? It is true that he has declared a state of
emergency, as he can do 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.
More fundamentally,
the Basic Law provisions with regard to a state of emergency (Articles 110 to
115) don’t significantly enhance the powers of the President. Indeed, they are more concerned with setting
limits to his powers: thus, for example, Article 113 specifically states:
“The Palestinian Legislative Council
shall not be dissolved or suspended during the emergency situation nor shall
the provisions of this chapter [Articles 110 to 115] be suspended.”
Amending the Basic Law
The Basic Law
provisions on a state of emergency do not mention the concept of an “emergency”
government. Nor do they give the
President the power to amend the Basic Law, in whole or in part. 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.”
Yet, President
Abbas purports to have amended the Basic Law without reference to the PLC. On 16 June 2007, he issued a decree which
purported to remove Articles 65 and 67 from the Basic Law. Article 67 requires, inter alia, that a government
be endorsed by a majority of PLC members in order to be a lawful
government. Obviously, he removed these
Articles in order to avoid, he hoped, the necessity of his “emergency”
government having to get a vote of confidence from the PLC.
Abbas’ manifestly
illegal act of amending the Palestinian Basic Law by decree has gone unreported
in
Note that Abbas doesn’t seem to have
attempted to remove Article 79(4), which states that that
“(4) The Prime Minister and any of the Ministers shall not
assume the duties of their positions until they obtain the confidence of the
Legislative Council.”
Plainly, therefore, neither Prime
Minister, Salam Fayyad, nor his Ministers are fit to take up their duties.
Other views
The views
expressed above about the President’s powers under the Basic Law are in line
with those expressed on 8 July 2007 by Anis al-Qasem, who took a leading part
in the drafting of the Basic Law (see [4]).
The views
expressed above also match those of Nathan J Brown of the
Brown’s
analysis has the virtue of having being written long before recent events, but
on 16 June 2007 he added a preface about recent events, which said:
“Hamas responded that Abbas had no
right to act as he did and that if he wished to dismiss Haniyya, existing
ministers (including Haniyya) would continue as caretakers until new ones are
approved by the Palestinian parliament. …The Basic Law is completely
unambiguous in backing Hamas’s position.”
Both al-Qasem
and Brown make the point that Abbas’ lack of authority as President under the
Basic Law is the product of
As al-Qasem
writes:
“It is worth remembering that the whole
Basic Law has been amended to reduce, rather than increase, the powers of the president
as a result of the power struggle between Mr Abbas when he was Prime Minister
and the late President Arafat.”
Had the Basic
Law been left as it was, there wouldn’t have been a Hamas Prime Minister and President
Abbas could most likely have ridden roughshod over the Hamas-controlled
legislature without infringing the Basic Law.
The EU & the Quartet lie
The EU under
its German presidency rushed to support Abbas, issuing a statement on 15 June
2007 saying:
“The EU Presidency emphatically
supports President Abbas’ decision, in keeping with the Palestinian Basic Law,
to dismiss the government and to appoint a caretaker government for the
Palestinian territories.” [6]
As Nathan Brown writes [5],
this statement that Abbas’ decision is “in keeping with the Palestinian Basic
Law” is a lie.
The Quartet (the
“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. The Quartet noted its continuing support for other legitimate
Palestinian institutions.” [7]
This also declares
– falsely – that Abbas’ decisions conform to the Basic Law.
As for Abbas’
intention “to consult
the Palestinian people at the appropriate time”, Article 47(3) of the Basic Law,
as amended in August 2005, now states:
“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.
Alvaro
There is no doubt that, from the day
and hour that Hamas won the PLC elections in January 2006, the
An insider’s view of this plotting
(and much more besides) has come into the public domain recently with the
leaking of the “End of Mission” report by Alvaro
A photocopy of his report can be
found on The Guardian website [8]. Here is a snippet (from paragraphs 55 &
56):
“Soon after the elections, Hamas expressed its desire to
establish a broad-based government. The
reactions in Fateh were mixed, but before the idea could advance any further
the
“Before going on, I want to stress that, in effect, a
National Unity Government [NUG] with a compromise platform along the lines of
You can see that the
Who was overthrowing whom
The following extract from a Reuters
report by Adam Entous on 18 June 2007, entitled After
“The
“Western, Israeli and Palestinian official sources said over
the weekend that, far from being an ad hoc response to Hamas’s offensive, Abbas’s
declaration of a state of emergency and his replacement of a Hamas prime
minister with Western favourite Salam Fayyad marked the culmination of months
of backroom deliberations, planning and U.S. prodding.
“In the end, pressure on Abbas to act against Hamas was as
great – if not greater – from within his own Fatah faction as from
“Only the triggering event, resulting in total Hamas control
of the Gaza Strip, can be said to have come as a nasty surprise to the
Americans. It left in tatters plans by US and Arab allies to build up Abbas’s
own forces in
“Many Western officials and analysts see the offensive as a
pre-emptive strike by Hamas before
“‘(Hamas leaders) knew what was going on’, one senior
Western diplomat said. ‘They knew Abbas was going to try to establish his
authority. They read it in the paper like everyone else.’ …
“Edward Abington, Abbas’s long-time adviser and
“Abington recounted a meeting as long ago as July last year
at which ‘(Abbas) said to me that the Americans were urging him to kick out the
government, to form an emergency government.
He refused to do it because it would lead to civil war.
“‘(Abbas) did not want to get into a confrontation’, said
Abington. But in the end, he said, ‘it was forced on him.’
“Western officials said Abbas was able to move swiftly this
week to form a new government because much of the advance work had already been
done. In one closed-door briefing with US lawmakers earlier this year, a senior
“On Sunday, faced with a constitutional article demanding
any new government be approved by parliament, where Hamas has a majority, Abbas
simply issued a decree scrapping that provision.”
Annex
A: Extracts from “What Can Abu Mazin
Do?” [5]
by Nathan J. Brown, Carnegie Endowment for
International Peace
When Hamas won a majority of seats in the Palestinian
Legislative Council in the January
2006 elections, many observers asked whether President
Mahmud Abbas (Abu Mazin), the popularly elected president from the rival Fatah
movement, could prevent Hamas from assuming authority. Once Hamas formed a
government, many asked whether Abu Mazin could dismiss or replace it.
… Despite widespread media commentary concerning gaps
and silences in the Palestinian “Basic Law”—the interim constitution for the
Palestinian Authority—the document is actually unusually clear on most matters.
… Existing arrangements give Abu Mazin very few tools to act unilaterally.
Almost any change would require either Hamas’s consent or a violation of the
Basic Law.
1. Can Abu
Mazin dismiss Prime Minister Ismail Haniyya (of Hamas)?
Yes. Article 45 states clearly that the President may
“remove or accept the resignation” of the prime minister.
2. How would
a new government be formed?
Only with the support of Hamas.
Any new government would have to receive the support
of an absolute majority of deputies (not just a majority of those voting)
according to Article 67.
Under current circumstances, this would make it
impossible to form a government without Hamas’s support. But it would also be
impossible right now for Hamas to form a government without the support of
other parties. One-third of Hamas deputies cannot vote because they are
imprisoned by
Any new government would thus have to receive support
from both Hamas and Fatah to obtain the necessary majority.
3. Who would
govern if Abu Mazin dismissed Haniyya and no cabinet obtained a majority?
Under Article 78, Haniyya’s cabinet would continue to
serve in a caretaker capacity.
4. Can a
technocratic government be formed?
Only if Hamas agreed.
…
5. Can Abu
Mazin order early elections?
No. His aides constantly hold out this threat, but the
president has no authority to end the term of the Legislative Council early.
Much of the Western media coverage has claimed that the Basic Law is ambiguous
on the issue. But it is extremely clear and definitive. Article 47 (as amended
in 2005) provides that “the term of the Legislative Council is four years from
the date of its election.” There is no loophole—under existing constitutional
provisions, Abu Mazin has no more basis for early parliamentary elections than
President George W. Bush has for ordering new Congressional elections if he
does not like the result. Parliamentary elections before 2010 would require
that the constitution be amended—which only the Hamas dominated Legislative
Council could do.
6. Can Abu
Mazin declare a state of emergency?
Yes. Under Article 110, the President may declare a
state of emergency for up to thirty days.
After that, it may be renewed only with the consent of
two-thirds the Legislative Council.
7. What
would Abu Mazin be allowed to do under a state of emergency?
Very little without the consent of the Legislative
Council, as I make clear below. Under a state of emergency, the cabinet has far
stronger claims to special authority than the president. And even if the
president tried to take emergency powers himself, the Legislative Council could
overturn any of his actions.
8. Can Abu
Mazin use a state of emergency to dismiss the Legislative Council?
Absolutely not. Article 113 is clear: “Dissolving the
Legislative Council or suspending it during the period of a state of emergency
is not permitted.”
In order to prevent Abu Mazin from suspending this
article (as the Emir of Kuwait did with a similar article in the Kuwaiti
constitution), Article 113 specifically states that the Article itself cannot
be suspended.
9. Can Abu
Mazin call a referendum?
No. He did so once anyway but then cancelled the call.
When leading imprisoned figures from Fatah and Hamas
negotiated a common political understanding, Abu Mazin asked that Hamas endorse
the “prisoners’ document.” When Hamas hesitated, Abu Mazin issued a decree
ordering a referendum on the subject. There was no legal basis for the decree.
Its proponents argued that the Basic Law’s silence on the matters of referenda
allowed the president to do as he pleased. And they attempted to lessen the
gravity of the constitutional violation by declaring the referendum to be
“advisory” rather than “binding.”
This remarkably expansive view of presidential
authority—that the president may do anything not explicitly prohibited—seems
unsupported by the Basic Law, which insists (Article 38) that the president
only exercise authority in accordance with its provisions. Further, the
referendum depended not simply on the presidency’s authority but also on the
cooperation of bodies that did not answer to the president. The decree simply
ordered the independent Central Elections Commission to administer the voting.
And a sound election would have required the cooperation of bodies that
answered to the Hamas-led government, like the ministry of interior
(responsible for security) or the ministry of education (because most polling
places are located in schools).
When Hamas and Fatah agreed to a modified version of
the “prisoners’ document,” the referendum became superfluous and a
constitutional crisis was avoided.
In recent days, however, Abu Mazin has suggested that
he may revive the referendum, perhaps this time in support of a technocratic
government.
10. Why was
the Basic Law written this way?
To restrain the president.
Most of the provisions that tie Abu Mazin’s hands were
specifically and consciously inserted into the Basic Law to fill legal gaps
exploited by Yasser Arafat. Arafat resisted the Basic Law but finally succumbed
to intense domestic and international pressure to sign it in 2002. One year
later, the same coalition imposed on him a series of amendments that closed
more loopholes, created the position of prime minister, and strengthened the
parliament and the cabinet at the president’s expense.
David Morrison
Labour & Trade Union Review
8 July 2007
References:
[1] www.usaid.gov/wbg/misc/Amended_Basic_Law.pdf
[2] 213.244.124.245/data/txt/2005/14860.htm
[3] www.kuna.net.kw/NewsAgenciesPublicSite/ArticleDetails.aspx?id=1755378&Language=en
[4] www.alertnet.org/thenews/newsdesk/L0880166.htm
[5] www.carnegieendowment.org/files/AbuMazinUpdateJune1507.pdf