The Dissolution of the Palestinian Legislative Council by the Palestinian Constitutional Court: A Missed Opportunity for Reform

Sanaa Alsarghali

An-Najah National University

On 14 June 2007, Palestinian President Mahmoud Abbas used the Palestinian temporary constitutional document - the Basic Law (BL) - to declare a thirty-days state of emergency.

 This declaration followed the unexpected 2006 election of Hamas – a political party viewed as being ‘terrorist’ by many international actors – to the Palestinian Legislative Council (PLC). After a year of  conflict and destabilization, Abbas was forced to declare a state of emergency and to dismiss the Palestinian government led by Hamas leader Ismael Haniyeh after six days of faction fighting and Hamas’s  military coup that took over Gaza. The Palestinian territories have, therefore, been split between Fatah held West Bank and Hamas in the Gaza Strip since the 2007 crisis. Thus, with the Israeli arrests of Hamas members and continued political disagreements between Fatah and Hamas, the PLC has not convened in Ramallah (West Bank) with a quorum whilst Hamas has instead held PLC meetings in Gaza, refusing to recognize the legitimacy of the President’s decrees. This suspension of the PLC has meant that the President alone has been selecting and approving cabinet positions – including the PM – in the West Bank since the invoking of emergency in 2007.

Constitutional issues have quickly arisen as the PLC is required in many instances to verify the use of emergency powers. For example, the BL’s state of  emergency  provisions (article 110) allow for thirty days of emergency measures that can only be extended by the majority of the PLC thus causing legal issues after the initial thirty days of emergency. The only legislative tool constitutionally available after this period was article (43) on the ‘State of Necessity’, which allows the President to issue “decisions with the power of law’’ when the PLC is ‘’not in session’’. President Abbas has thus used this provision since the 2007 crisis to govern the West Bank - taking advantage of the ambiguity in the meaning of the PLC being “not in session” which arguably only actually refers to the period when the PLC is in recess. After nine years of presidential rule by ‘decisions with the power of law’, on 3 April 2016 President Abbas issued a decision to establish the first Palestinian Supreme Constitutional Court with powers of constitutional review of legislation.

The decision to establish a constitutional court in Palestine at this time has been controversial as constitutional courts in the MENA region have often tended to turn into extensions of the executive. Indeed, since the Court was established during this ‘exceptional situation’ - in which the Palestinian National Authority (PNA) has normalized the exceptional executive legislative powers to govern Palestine – its financial independence and autonomy from the executive has become especially vulnerable. This executive bias has largely been confirmed by the Court’s rulings, which have tended to side with the President’s authority. This was also apparent in the Court’s to date most significant ruling (both in terms of constitutional impact and controversy) that led to entirely dissolving the suspended PLC: the judgment of 22 December 2018.

In what follows I first detail the Court’s judgement and highlight its core inadequacies. I then explore how the Court could have potentially ruled differently, arguing that this was a missed opportunity – and one that provided an opportunity for the PLO to intervene - to resolve the political deadlock and constitutional uncertainty that has afflicted Palestine since the 2007 crisis. I conclude with the suggestion that Covid-19 has made the consequences of this ruling more apparent, pushing Palestine further away from constitutional norms.   

The Landmark Judgment of 2018

On 2 December 2018, an application was submitted by the Minister of Justice, based upon a request from the Head of the High Judicial Council (the Head of the High Court). The request asked for the interpretation of article (47), article (47 bis) and article (55) of the BL, to ascertain whether the PLC was still active regardless of its suspension, and if the PLC members were eligible for their salaries.

In response to this enquiry, the Constitutional Court decided on 22 December 2018 to dissolve the PLC and to call for legislative elections, a decision which the Palestinian President Abbas endorsed and committed himself to implementing. In its reasoning, the Court detailed the grounds for the PLC’s dismissal, highlighting that its extended absence meant that “the PLC has lost its status as a legislative authority, and thus its status as the Legislative Council.” It also argued that, in the absence of periodic elections, article 47 bis and article 47 are no longer applicable and thus “there are no compelling reasons for the expired PLC members to receive remunerations”.

This decision is noteworthy as the BL does not give the President, nor the Court, the right to dissolve the PLC under any circumstances. Indeed, the Court has been forced into this ruling due to the exceptional political situation and the unique feature of the BL that prevents the President from dissolving the PLC - a capacity which is typical of most of parliamentary and semi-presidential systems. This limitation on presidential power was a consequence of the initial design of the BL, based on the understanding that it would only be a temporary document for a transitional period that was supposed to end in 1999 (but that has in fact lasted until the present day). Indeed, the BL drafting process was a result of a political compromise whereby the PLC was granted the ability to review the President’s loss of legal capacity whilst the President would be unable to dissolve the PLC.

The Court’s decision to dissolve the PLC and to begin the election process has not, however, solved Palestine’s constitutional crisis nor helped in reviving democratization. Despite election proceedings being ‘earmarked’ to be held six months after the PLC’s dissolution, they have failed to materialize, perpetuating the absence of a functioning PLC. Political commentators have noted that the failure to have elections might be due to a lack of political will, as both the mainstream parties’ popularity is dropping (Fatah and Hamas) and their re-election is not guaranteed.

Also, importantly, with the 2018 ruling the Court had a chance to empower itself as a constitutional authority breaking the political deadlock and changing the status quo - as the ongoing political inertia had to be resolved somehow - but its failure to give proper reasoning and to restore separation of powers made its ruling weaker than it should have been. Arguably, the decision to officially dissolve the PLC was also a strongly politically motivated strategy to prevent the current PLC speaker, a member of Hamas, from becoming eligible as a temporary President. The BL grants presidential authority to the speaker if no elections are possible and the office of the president becomes vacant; as a result, the possibility of a Hamas President raised serious concerns for Fatah. In other words, by restricting its remit solely to dissolving the PLC, the Court has given the executive branch carte blanche on future events.

A Missed Opportunity

To ensure future political stability and the respect of constitutional norms, the Court could have taken a stronger lead to instigate constitutional reform. It could have initiated measures to retire the BL and fix the current broken political system by adopting the new constitutional draft that was completed in 2016  as means to kick-start civic and democratic institutions. For example, the Court had the opportunity to dissolve the PLC and to emphasise that such a dissolution would render article 43 inoperable as the terminology “not-in-session” would no longer be applicable – therefore, the Presidents’ legislative powers would have been restricted. This could then have been followed up with an assertion that the new Palestinian draft Constitution should be put to referendum prior to the date of the new PLC elections. Indeed, a democratic election would have been inevitably held, as an elected PLC would become necessary in order for the country to be governed in accordance with the new constitution. Such a ruling would have likely moved Palestine towards stability and a process of constitutional revival.

This suggestion, however, does have limitations. It would only be feasible if elections could occur in Palestine. Currently, the animosity between the two main political parties and the restrictions implemented by Israel have massively hindered the election process, making it extremely unlikely in the near future. Thus, the responsibility for constitutional reform perhaps falls on the Palestine Liberation Organization (PLO) - the body that represented Palestine in the Oslo Accords that initially founded the PNA.

The capacity for the PLO to become ‘active’ in Palestine’s constitutional arrangements lies on the preamble of the BL, which states that ‘…The birth of the Palestinian National Authority in the national homeland of Palestine (…) under the leadership of the Palestine Liberation Organization, the sole, legitimate representative of the Arab Palestinian people wherever they exist.’ The preamble provides the hierarchy of the different governing bodies of Palestine and is relevant during this period of political limbo when emergency powers have become the norm and where questions regarding the legitimacy of the PA, its institutions and ultimately the President himself, have inevitably arisen.

In particular, the relevance of the PLO in constitutional matters is crucial with regards to understanding how a new President could succeed Mr. Abbas - a question many Palestinians are beginning to ask in this period of unusual political circumstances that are preventing legislative and presidential elections. For example, during periods of political stability, the BL stipulates in article (37b) that the PLC speaker is considered as the interim replacement of the President, should it become necessary. However, as the PLC has officially been dissolved by the judgment of 2018, this would not be possible – despite Hamas continuing its PLC sessions in Gaza (separate to the West Bank). Due to these exceptional political circumstances, the PLO could intervene and offer its own legislative assembly and speaker to fill in for the absent PLC until elections are called.  

Setting a Dangerous Precedent

The consequence of the Court’s ruling of 2018 has become especially apparent during the Covid-19 pandemic, when Palestine declared and renewed its ‘state of emergency’ protocols. This declaration lacked constitutional ground as the BL requires an approval of two thirds of the PLC in order to extend the state of emergency. However, due to the dissolution of the PLC, the presidential decree extending the state of emergency was issued arguing that the exceptional health situation demanded that people’s lives should be the only concern. Such a decree would have been acceptable (on the premise of protecting lives), if the President did not enforce it with a ‘decision that has the power of law’ based on article (43). In fact, such a decision suggests a willingness of the President to replace the PLC authority  in extending emergency declarations with his own, an action that the President had never taken previously when using article (43), not even during the 2007 crisis. This has set a worrying precedent and marks a significant constitutional change in the modus operandi of Palestinian constitutionalism.

Before this ruling, a case could have been made that Palestinian governance was attempting to adhere to constitutional norms despite the exceptional political circumstances it found itself in. Instead, this ruling, which was needed to rejuvenate constitutional processes and negotiate the political deadlock, has caused more tension in Palestine. Indeed, it demonstrates how key constitutional decisions are being motivated by the politics of the President and reveals how the judiciary - specifically the Constitutional Court – has become an extension of the executive. In other words, this ruling has signified the demise of constitutionalism in Palestine in favor of a fully normalized executive domination of power.

Sanaa Alsarghali is an Assistant Professor of Constitutional Law at An-Najah National University, Palestine. 

Suggested citation: Sanaa Alsarghali, “The dissolution of the Palestinian Legislative Council by the Palestinian Constitutional Court: a missed opportunity for reform” IACL-AIDC Blog (1 July 2021) https://blog-iacl-aidc.org/menaregion/1-7-21the-dissolution-of-the-palestinian-legislative-council.