National Democratic Coalition 1

413 Ibid.

414 Ibid.

The seeds of Fatah’s dominance over PLC were sown by the Palestinian electoral law, which stipulated, as we have seen above, the majority system instead of proportional representation, and divided WBGS into sixteen constituencies. In so doing the law left little chance for small factions and parties which enjoy little in the way of a national following to be represented in the council. In October 1995, three months prior to the elections, all Palestinian parties and factions (including PFLP, DFLP, Hamas, Islamic Jihad, and others) enjoyed a national following ranged between 0.1 and 10.7%, compared to more than 41% for Fatah.⁴¹⁵ Fully aware of this, the main Palestinian parties after Fatah--Hamas, Islamic Jihad, PFLP, and DFLP--boycotted the elections, arguing that the law favoured Fatah and was structured in a way that would ensure Fatah dominance over the PLC.

But it should be emphasized that these factions' and parties' boycott of the elections was not merely due to the structure of the electoral law, but it was in principle due to their opposition to the Oslo process, and what might be derived from such a process, including the elections. On 16 January 1996, just four days before the elections, Hamas declared that the elections should be boycotted because it; “represented the legitimisation of Oslo process, was to take place under the shadow of occupation through which the Israelis maintained control over all aspects of Palestinian liberty, and failed to take into account the Palestinian refugee population in the Diaspora”.

Within two days of Hamas making their position public Islamic Jihad, PFLP, DFLP all concurred and published pamphlets to this effect.⁴¹⁶

Despite their principle opposition for Oslo process, the position of these parties toward the electoral law gained the support of some foreign institutions concerned with democratic process, including the International Commission of Jurists, which called on the PA to change the electoral law by introducing a proportional

415 JMCC’s Poll No.10 online <http://www.jmcc.org>

416 In fact, rounds of negotiations were held between the PA and these parties, with Hamas in particular, in Cairo during December 1995 with the aim of convincing Hamas, which took the leading role in the opposition, to change its position. In these negotiations, the PA showed readiness to enable Hamas to take part in the government institutions within the context of the Oslo process. But this position was rejected by Hamas which considered itself unbound by the terms of Oslo, and which also refused to dissolve its military apparatus. This fact left the negotiations between the two sides unproductive, and therefore, Hamas declared boycott for the elections. For these rounds of negotiations see Al-Hayat Al-Jadeeda on 11, 13, 18, 20, 21, 23 December 1995. And for the position of these parties on the elections see Al Nihar on 17 & 19 January 1996.

representation system. According to one international foreign observer “...90 percent of the abuses in the elections occurred well before the election itself and took place in full public view.”⁴¹⁷

Clearly, the majority representation system stipulated by electoral law paved the way for these abuses to take place. Usually, such a system is appropriate for an ideologically and socially homogenous community. However, in the case of an ideologically and socially heterogeneous community, like the Palestinian one, then the most appropriate system is proportional representation. Only this system guarantees the representation of various ideologies and groups in state institutions.

The implementation of a system like the majority representation system, therefore, facilitates the representation of only the dominant ideology or social group, in this case the Fatah party, and the exclusion of other parties and factions from the government institutions. This was to give Arafat- who won the presidency of PA with more than 88% of the votes as apposed to 9.5% of votes for Samiha Khalil, one of the opponents of the Oslo accords, and ran for the presidency alongside Arafat-⁴¹⁸ the freedom to implement his policy of exclusion/inclusion of his opponents/supporters, which he follows within the context of his “neopatrimonial” system (for this system see chapter III).

In addition to this problem was the division of the West Bank and Gaza Strip into sixteen constituencies. Given the tribal nature of the Palestinian society, this division promoted a tribal or familial fanaticism particularly in the constituencies dominated by big families such as in Khan Younis where families like Al Aga, Al Farah, Al Astal, Barbakh, and Al Masri (among the ayan) enjoyed historical status.

For example, during the elections one of these families sought to impose their own candidate through illegal means. This happened when relatives of Zakaria Al Aga (who ran the elections on Fatah ticket and won only 800 votes) discovered Al Aga's failure in the elections. In reaction, they sought to replace the ballot box with forged ballots so that he would win. This action provoked the family of Barbakh whose

417 Robinson, op.cit., P.196.

418 Al-Hayat Al-Jadeeda on 22 January & Palestine Report. Vol. 1, no.35, January 24, 1996.

candidate won 7,000 votes, and was placed second after Abdel Al Karim Abu Saleh (who ran the elections on Fatah ticket, and won the highest number of votes estimated at 8,000). Though, legally speaking, Barbakh was the one who should be announced winner, the victor list excluded Barbakh to list Al-Aga instead. Clashes, accordingly, broke out between the members of Barbakh family and the Palestinian police, and left six of Barbakh family wounded.⁴¹⁹

A similar incident occurred in Ramallah constituency when Mustafa El Barghuti, who ran for election on the People's Party ticket was announced as winner, but after about half an hour, the victors’ list was amended to list Marwan El Barghuti (running for election on the Fatah ticket), instead of Mustafa.⁴²⁰ Both incidents, promoted by the ideological division (alongside tribal lines), prove that the PA, through these elections, deliberately sought Fatah hegemony over the PLC, and the exclusion of the other political factions.

More importantly, it showed that the action of some Palestinians remained guided by principles other than rational ones. The absence of rational-based action among some Palestinians would have negative impacts over the prospects of advancing complete free and fair elections. This problem was not confined only to the electors, but extended to include the candidates, some of whom arrived to the polling stations in the elections days with the intention of influencing the decision of the electors.⁴²¹ Parallel to these problems was the hostile attitude that the Israeli authorities adopted towards the election. This was most evident in Occupied East Jerusalem and took on a number of different forms. The Israeli authorities prevented the candidates from putting up posters or advertisements on cars. They further restricted the candidates’

capacity to reach the electorate by only allowing them to hold public meeting in certain places.⁴²² On the 15^th of January there also appeared a poster, written and distributed by the so called the ‘Young Generation of the Likud Party’. The poster’s clear intent was to dissuade voters from participating in the election. It threatened the

419 See Al Bilad on 22 January 1996.

420 Lamis Andoni. “The Palestinian Elections: moving toward Democracy for one-Party Rule”. In Journal of Palestine Studies. Vol XXV, no.3 (Spring 1996), Pp.14-15.

421 Al Nihar on 21 January 1996.

422 Al Hayat Al-Jadeeda on 14 January, & Al Nihar on 15 January 1996.

voters that if they took part in the election they would have their Identification Cards removed. This was a particularly worrying claim to the Palestinian Jerusalemites as their I.D cards give them some extra rights and privileges though nothing like the rights and privileges enjoyed by Israelis.⁴²³

Despite these problems, the elections had been described by Carl Lidbom, head of the European Union election observers, as “largely fair” and “accurately reflect<ing> the aspirations of the Palestinian voters”.⁴²⁴ On 12 February 1996, thus, Arafat swore himself in as the first elected president of the PA, and on 7 March the PLC, addressed by Arafat and Salim Za’nun, PNC acting president, was inaugurated.

The PLC: Toward a Parliamentary Institution

The inauguration of the Council raised great hopes and expectations among Palestinians. Mohammoud Abbas (Abu Mazen) declared that “the elected Council is five minutes away from the announcement of independence, and the Council will declare independence during its three-year term”.⁴²⁵ Upon its inauguration the Council began to institutionalise itself as a step towards its goal of Palestinian independence.

Ahmad Qrieh was elected as council speaker, beating his closest rival, Haider Abdel El Shafi, by about 20 votes.⁴²⁶ A Standing Order, comprised of 115 articles, was laid down.⁴²⁷ Its preamble provided “the principle of separation of powers... the independence of legislative authority and its right to legislate and monitor and hold accountable the executive authority... is a first and necessary step toward independence and building a democratic society.”

The Standing Order established the PLC’s internal procedures and structure as well as the mechanisms of legislation, accountability, and monitoring. Article 16 provided for the Council’s annual term, starting in March of every year, and divided it into two periods, each lasting for six months. Article 18 specified the attendance of an absolute

423 Al Nihar on 16 January 1996.

424 Palestine Report. Vo. 1, no.35, January 24, 1996.

425 Al Hayat Al-Jadeeda on 22 January 1996 & Ibid.

426 Palestine Report, Vol. 1, no.42, March 15, 1996.

427 The PLC’s Standing Order had been frequently revised. The most updated version had been approved by PLC on 7 June 2000. This version is the one upon which the discussion is based. For this version see PLC official webpage <http://www.pal-plc.org>

majority (half the council members plus one) as pre-condition for regarding any session as legal.⁴²⁸

Articles 2 & 4 stipulated that at the beginning of each term the council re-elect its

“Office Commission” comprised of the council speaker, the speaker’s first and second deputies, and the council secretary-general. The Commission was empowered to supervise all the administrative, financial, legal, information, and public relations issues. More importantly, it was charged with following up the implementation of Council resolutions (Article 11).

The head of the Commission (the Council speaker) is held to represent the Council, and to preside over its sessions. At the inaugural session Nahid Munir El Rayes and Mitri Abu Aita were elected the speaker’s first and second deputy respectively; Rawhi Fatoh was elected the Council’s Secretary-General.⁴²⁹ Furthermore, the Council set up its own committees to study and review plans, programmes, agreements, and to perform major tasks in such fields as legislation, accountability, and monitoring.

Article 48 of the council’s Standing Order identified two kinds of committees;

permanent committees and ad-hoc committees (formed for a specific purpose and terminated upon the conclusion of their work). According to the same article, 11 permanent committees were set up: the Jerusalem affairs committee, the land and settlement committee, the refugees affairs committee, the political committee, the legal committee, the budget and financial affairs committee, the economic committee, the interior committee, the education and social affairs committee, the monitoring and human rights committee, and the Council’s affairs committee.

Any member of the PLC is eligible to nominate themselves for any committees.

Usually, the nomination for these committees takes place at the beginning of each term of the PLC. The Council Office Commission, whose members are denied the right to nominate themselves for these committees, is the body which supervises the

428 The Council sessions were to be alternated between West Bank and Gaza Strip, and two branches for the council were established so that the problem of closure, which denied several West Bank PLC members right to attend the inaugural session in Gaza, is overlapped. See Palestine Report. Vol.2, No.31, January 17, 1997.

429 The Council Speaker as well as his two deputies and the secretary general were affiliated with Fatah.

Qrieh was elected for Jerusalem constituency, while El Rayes, Abu Aita, Fatoh, were elected for Gaza, Bethlehem, and Rafah constituencies, respectively. See Palestine Report. Vol. 1, No.42, March 15, 1996.

process of elections for these committees, before presenting the final list of nominees to the Council for final approval (Articles 49 & 51).

The Standing Order also laid down the procedure of legislation, monitoring, and accountability. Articles 65 & 66 stipulated that either the Cabinet or PLC members might propose a draft law, two readings of which would be required. In most circumstances both the relevant and legal committees of the council have the right to review a draft law passed by either the Cabinet or PLC members. Upon the approval of the draft law by these committees, it is presented to council members for first reading approval. An absolute majority is needed to approve the law in its first reading (Art. 69).

Once the draft law is approved at the first reading, it is passed back to both the relevant and legal committees for further possible comments, before being presented to PLC members for second reading approval. If the draft law is approved at the second reading, it is passed to the PLC speaker, who, on behalf of the council, passes it to the PA President for ratification or comments (Art. 70). By virtue of article 71, the President has thirty days to comment or ratify draft laws. If the thirty days passed without word from the President, a draft law is considered in force and formally becomes a law that bounds every Palestinian in the autonomous areas. The PLC’s mechanism of legislation is illustrated in the accompanying diagram.

Cabinet PLC Speaker

PLC members

PLC members’ discussion

No Yes

Proposed Law Cancelled Legal & Concerned Committee

Yes First Reading Yes

Second Reading

PLC Speaker

PA President Comments

Proposed Law Proposed law

Yes The law is enacted

At the level of monitoring and accountability, article 15 of the Standing Order empowered the PLC to extend/withdraw confidence in the cabinet or in any minister.

Article 74 gave the Council the power to approve the PA’s annual budget, and obliged the PA to present the next year’s budget for the PLC two months before the end of the fiscal year. Furthermore, article 75 enabled every member in the PLC to question any minister over any issue of concern, and to call these ministers to testify at the Council sessions.

The PLC’s Standing Order thus set the necessary norms upon which any democratic relation between the executive and legislative body rested. Through these norms, the Standing Order sought to strengthen the principles of accountability and transparency, and more importantly, to transfer to the PLC much of the power that is concentrated in the hands of the PA, in particular in Arafat’s hands. From the council’s point of view, as the preamble of the Standing Order makes clear, this is a pre-condition for building a democratic Palestinian state and achieving independence. The PLC thus considered itself to be engaged in battles on two fronts; the defence of democracy and the struggle for Palestinian national rights.

Toward this end, over the first four years of its inception (March 1996-March 2000/

the last term before the outbreak of the current intifada) the PLC held dozens of sessions and its committees convened vast numbers of meetings producing scores of reports, resolutions, and laws. In the first two years after its inception, for example, the PLC held no fewer than 30 sessions and its committees held around 260 meetings resulting in 72 reports, 92 resolutions, and 35 laws in different political, economic, legal, and social fields.⁴³⁰

Among the most important laws approved by the PLC over its first four years were the basic law or constitution for the interim period, the law of judiciary, and the NGOs law. The developments concerning these laws, and the means by which these laws were approved by the PLC might serve as empirical evidence to assess the type of relation that developed between the PLC and the PA during the first four years after the PLC’s inception.

The Basic Law, the Law of Judiciary, and the NGOs Law: Unsuccessful Attempts to Combat Arafat’s Neopatrimonial System

A most vital and urgent task of the PLC was the draft of a constitution or basic law for the interim period. Article 3 of the electoral law stipulated that the PLC should, as soon as it was inaugurated, draft a basic law that organizes the relations among the three authorities on the one side, and the relation of these authorities to the people on the other side. Toward this end, the PLC in its session no. 19 of the second term which held in Ramallah on 17 September 1997 approved the law at the second reading and passed it to Arafat for ratification or comment as provided by Article 70 of the PLC’s Standing Order.⁴³¹ Arafat, in turn, failed to comment upon or ratify the law within the due legal period of 30 days as provided by article 71 of the PLC Standing Order. Instead of declaring the law in force, the PLC passed a third reading to Arafat in October 1997.⁴³²

Once again Arafat failed to comment on or ratify the draft law within the due legal period, and from then until the outbreak of the current intifada in September 2000, the

430 Palestine Report. Vol. 4, no.38, March 13,1998.

431 Minutes of session no.19 of the second term.

432 Al -Hayat Al-Jadeeda on 2 October 1997.

law remained blocked, so that Palestinians of the autonomous areas continued to lack constitutional recourse. Arafat’s refusal to ratify the basic law implied his opposition to the principle of the separation of powers and the rule of law, since this principle was the most notable feature of the law that formed up to seven chapters with 112 articles.⁴³³ Article 2 of the law, for example, considered the Palestinian people “the source of all power, which shall be exercised through legislative, executive, and judicial authorities based on the principle of separation of powers...”

Article 5 structured the governing system as “a democratic parliamentary system based on political and party pluralism.... The government shall be responsible to the president and to the Palestinian legislative council.” Article 6 equalized the status of all Palestinians before the law; “the principle of the rule of law shall be the basis of government in Palestine. All authorities, powers, agencies, institutions and individuals shall be subject to law”. Article 9 lodged great stress on the principle of the rule of law when it considered “all Palestinians...equal under the law and judiciary, without discrimination because of race, sex, colour, religion, political views, or disability.”

Articles 10-33 emphasized basic human rights including civil, political, economic, and social rights: the right to freedom of expression, the right to freedom of peaceful assembly, the right to freedom of belief and the performance of religious rituals, the right to fair trial, the right to appeal, the prohibition of torture, the right to freedom of movement, the right to proper medical treatment, the right to housing, the right to

Articles 10-33 emphasized basic human rights including civil, political, economic, and social rights: the right to freedom of expression, the right to freedom of peaceful assembly, the right to freedom of belief and the performance of religious rituals, the right to fair trial, the right to appeal, the prohibition of torture, the right to freedom of movement, the right to proper medical treatment, the right to housing, the right to

Im Dokument Towards an Advanced Definition of the State (Seite 177-200)