November 13, 2008

Mahmoud Abbas was elected president of the Palestinian Authority (PA) in January 2005, following the death of Yasser Arafat. Palestinian Legislative Council (PLC) elections were held one year later, in January 2006, and Hamas gained control of the government by winning a majority of legislative seats. Hamas thus held the premiership, while Abbas remained the president. In June 2007, Hamas seized control of the Gaza Strip leading to a split in Palestinian governance; the Hamas government, led by Ismail Haniyeh, ruled Gaza while Abbas and the PA governed the West Bank, with Salam Fayyad appointed prime minister. Since then, disputes have arisen about whether Abbas’ term expires January 9, 2009.

What legal framework governs presidential elections in the Palestinian Authority?

Elections are governed by both the basic law and elections law. The basic law was ratified in 2002 as an interim constitution that could be extended until the creation of a permanent constitution. It held that the president will serve during the interim phase, without setting a time limit. The basic law was amended in August 2005 following Arafat’s death. This revision included a provision that set presidential terms at four years.

In the same year, the PLC passed an elections law that required that presidential and legislative elections be held concurrently. Since the 2005 presidential elections had occurred due to Arafat’s death, and there were impending legislative elections, the elections law stated that the first round of concurrent elections would be held according to the date for the next PLC elections, or 2010. When Hamas gained control of the legislature in 2006, it did not amend the basic law to include this provision. Accordingly, Hamas contends that Abbas’ term ends in January 2009. Conversely, Fatah and the PA refer to the election law as justification for elections in January 2010.

Are there other Palestinian government bodies that can solve the dispute?

The judicial branch does not have a clear means to solve the election dispute. Before the Fatah-led PLC left office in 2006, it passed a ruling allowing the president to establish a new constitutional court without receiving parliamentary approval. This court would be able to overrule legislation deemed to violate the basic law. The law, however, has not been ratified due to objections from Hamas. In the absence of a constitutional court, there exists a high court that holds the power to issue rulings. But Hamas has separate grievances with this court, which make it unlikely that Hamas will accept its ruling as legitimate.

For the PLC to pass new rulings it must be able to assemble a majority of its members. This is not possible because Hamas, which holds 74 of the 120 seats, has been unable to reach a quorum as many of its PLC members are currently being held by Israeli authorities. Fatah does not accept Hamas’ use of proxies for those in jail to reach a quorum.

In June 2008, the Fatwa and Legislation Office (FLO), a Palestinian judicial panel, ruled in favor of holding concurrent presidential and legislative elections. While the FLO is not a body that can issue rulings, the president may cite it to support a decision. The FLO reasoned that from January 2005 through January 2006, Abbas was fulfilling the remainder of Arafat’s term. In its view, Abbas’ four-year term did not begin until January 2006.

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