On the Palestinian Road to Elections: The System

24 November 2004

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Palestinians waiting for a checkpoint near Nablus. (Arjan El Fassed)


The Palestinian Legislative Council has begun making changes in the electoral system. One should expect that those members of the Legislative Council would have learned from mistakes made during the 1996 elections. Again, because of party politics the electoral system has been designed to favor the ruling party, namely, Fatah. The number of members will be expanded to 124 members, with half of these elected on a regional basis and the remainder on national basis. This would make it more difficult for the opposition, and easier for Fatah, to get their candidates elected on a national ticket.

The January 1996 elections were far from being competitive between political parties. The electoral system was designed to strengthen and consolidate the already empowered Palestinian Authority and its political support base in Fatah. The institutional choice of a district-system in combination of a majority system made it virtually impossible for candidates of the smaller factions, who decided to participate in the elections, to be elected.

The legal and administrative framework for the electoral system partly emerged through a complex process shaped by negotiations between representatives of the PLO and Israel. As a result, Palestinians had to design an electoral system that was acceptable not only to Palestinians but more important to Israel as well. According to the Declaration of Principles, the elections would be held “in order that the Palestinian people in the West Bank and Gaza Strip may govern themselves according to democratic principles”. The “direct, free and general political elections” would be held “for the Council under agreed supervision and international observation, while the Palestinian police will ensure public order”.

The protocol on the mode and conditions of elections (Annex I) stated that “Palestinians of Jerusalem who live there will have the right to participate in the electoral process according to an agreement between the two sides”. Following the signing of the Oslo Accords, Israel and the PLO agreed on the formation of a joint committee charged with negotiating the election modalities. This committee continued negotiations, which eventually led to the signing of the Interim Agreement of 1995, which established the framework for the electoral system.

The system

The Palestinian electoral system was not developed solely as a result of discussions among Palestinians. In this sense, there were constraints placed upon the institutional design and the electoral system that emerged. It had to meet the requirements of satisfying the specifications of the Israel-PLO agreements and providing a functional electoral mechanism, which obviously had to serve relations between Israel and the newly established Palestinian Authority.

The Palestinian elections were conducted according to the Election Law of 1995, which replaced both relevant Jordanian and Palestinian (Gaza) pre-1967 legislation. Although Palestinians took part in previous local, municipal and parliamentary elections under military occupation, this was the first time they were given the right to elect members of a Palestinian legislature and the president of a Palestinian Authority.

The preamble to the 1995 Election Law states that “the majority system, with multiple seat constituencies and an open list” has been “adopted by most of the countries of the world”. In fact, the Palestinian electoral system is a rather unique system among the diverse forms in force around the world. The electoral system divided the West Bank and Gaza Strip into sixteen electoral districts, with each district electing between one and twelve representatives depending on its population size. The division of the Palestinian electorate into unnecessarily small districts made it more difficult for representatives of smaller factions to be elected. The smaller factions such as Fida (Palestinian Democratic Union) and the Palestinian People’s Party (formerly the Palestinian Communist Party), argued that the system of non-proportional representation favored Fatah and made it more difficult for them and for the independents to gain seats.

Allocating seats: the quota system

The most effective means devised to ensure a Fatah victory was thus the division of the PA-ruled territories into 16 districts. Since the Elections Law stipulates that the winning party takes all the seats alloted to the district, a slim majority and even a plurality for Fatah was enough to eliminate all opposition representation. With the opposition split, it was almost impossible for Fatah not to come out the winner in every district, thus winning virtually most of the seats.

Furthermore, each district competed with rest for the greatest representation possible. The number of seats allocated in some districts was not proportional to the population. The distribution of seats by constituency was not left to the Central Election Commission, but done by presidential decree, and changed twice. The power struggle was illustrated by the case of Nablus. Although it was the largest city in the West Bank, it received only 8 seats, while Hebron received 10 and Ramallah, the smallest of the three, 11. This was the result of a series of political considerations. Fatah and other factional infighting within Nablus was rampant.

Meanwhile, the Palestinian Authority was attempting to establish Ramallah as its new power center in the West Bank, hoping to sideline opposition from critics in Nablus. Political leaders in Nablus objected to the fact that Nablus had only one seat for every 13,900 voters while the average was 8,800 in Khan Younis.

In addition, the Palestinian Authority argued, Ramallah was geographically closer to Jerusalem, which it hoped would ultimately be the capital of the future state of Palestine. As for Hebron, the additional seats were given to it in an effort to blunt criticism over the only limited withdrawal from the city. The Palestinian Authority responded to this after the Elections law was passed and after the registration of candidates was already underway by increasing the number of seats from eighty-three to eighty-eight, adding one seat each for Jerusalem, Northern Gaza, and Hebron and two seats to Gaza City.

This allocation change resulted in part from pressure from Gaza political leaders for more seats in Gaza. Residents of the Gaza Strip were concerned that distributing seats on the basis of voter registration figures would underrepresent districts in the Gaza Strip because the Gaza Strip comprised a greater proportion of residents under the age of 18. Also, Palestinian leaders in Jerusalem, including the late Faisal Husseini, the Palestinian Authority’s leading official in Jerusalem, feared that the initial low turnout for voter registration in Jerusalem would lead to an underrepresentation of Palestinians in the Jerusalem district.

While the old PLO quota system was dismantled, six seats were allocated to the Palestinian Christians. This provision was criticized as another kind of quota system. In a district where there is a Christian quota (i.e., Jerusalem, Bethlehem, Ramallah and Gaza), the Christian candidate with the most votes wins, even if he or she receives fewer votes than some Muslim candidates.

The Samaritan sect in Nablus was allocated one seat under the same regulations applied to the Christians. However, the Elections Law was vague regarding how these quotas would operate in the electoral system. In the immediate pre-election period, many Palestinians believed that the quota applied only for those who registered to run for the Christian seats and that Christian candidates could also choose to run for the “regular” seats. As election day approached, the committee provided a “restrictive” interpretation of the quota. For instance, no more than two Christians could win seats in the Bethlehem district, even if the top four candidates with the most votes were Christian.

Ultimately, the distribution of seats was not strictly based on registration of population figures. The absence of accurate and agreed-upon population data meant that the decision to shift the basis for allocating seats from voter registration figures to population figures essentially opened the process of seat allocation to political considerations.

The winner takes all

The Palestinian elections did not result in a complete transfer of power from one administration to another. Rather, it served to formalize the already empowered administration led by Yasser Arafat and Fatah. Palestinians were never in doubt about which party would win the elections: Fatah.

Opinion polls had been predicting this consistently since 1993. It is one of the peculiarities of the Palestinian electoral system that small parties or factions had no chance at all. In 1996 political parties or factions opposed to Fatah decided to boycott the elections. The reason they gave was that they did not want to participate in elections that served to legitimize the Oslo Accords. However, the fact that they also demanded a system of strictly proportional representation in which Palestine would be treated as a single constituency — the system used for the Palestinian presidential elections — indicates that the chosen electoral system was at least at a secondary reason for their boycott.

Not only most of the factions, but also the Palestinian public preferred a proportional representation system. A slight majority of Palestinians polled in July 1995, preferred an electoral system based on proportional representation, and less than one-third chose a majority system. Asked what kind of electoral system should be adopted, 50.9% of the respondents of a poll conducted in July 1995, preferred a proportional representation system, while 31.5% thought that a majority system should be adopted, with 17.6% of the respondents who did not know.

The data showed that even among Fatah affiliates there was a trend towards preference of proportional representation. Of those Fatah affiliates 46.6% preferred proportional representation and 39.1% preferred a majority system. The favor for proportional representation was slightly more among Hamas-affiliates (55.2%), PFLP-affiliates (61.7%), Islamist Independents (51.9%) and especially among respondents affiliated to Nationalist Independents (75.0%).

In sum among the Palestinian public a proportional representation system was preferred, while the Election Committee ignored this preference and adopted a majority system. The electoral system also got attention from Palestinian and foreign observers, including the International Commission of Jurists, who publicly called on the Palestinian Authority to change to a proportional representation system. As one official international observer said: “You know, 90 percent of the abuses in elections occur well before the election itself and take place in full public view”.

Even before the formal adoption of the electoral system, the Independent Palestinian Elections Group presented Arafat with a detailed electoral system, based on proportional representation which would include symbolic votes from the diaspora community as well as Palestinians in the West Bank and Gaza.

The Independent Palestinian Election Group realized that the elections mentioned in the Oslo Agreement did not satisfy the minimum Palestinian expectations, but it had deemed it possible to use the mandate for elections in order to create and draft a Palestinian electoral system which takes the peculiarities of the Palestinian situation into consideration without making the agreement its ultimate frame of reference. In this sense, the group sought to maintain a balance between the principles expressed in the Declaration of Independence and the commitment to hold elections. Arafat rejected it out of hand.

Changing the system

The Palestinian electoral system unfolded in a haphazard fashion with many important decisions being made and revised up to the day of the elections. Delays in promulgating the election law and appointing the committee and Election Appeals Court, and changes in timetables for registering candidates and voters combined to potentially thwart the electoral process. There was a lack of a stable framework and a rudimentary institutional infrastructure for elections. General elections were never held in the past.

Election laws, voter registries, electoral commissions at the national and local levels, and administrative structures to manage elections were virtually non-existent. Little or no technical expertise existed in Palestine for planning and conducting elections. Therefore, an institutional infrastructure had to be created from scratch within the stipulated time frame. Although the election law existed, and timetables had been promulgated and announced, they have been frequently changed by the Central Election Committee and the Palestinian Authority.

Important components of the election process, including the length of time for the campaign, the number of seats in the PLC, the procedure and timetable for registering voters and the timetable for registering candidates have been altered several times without public explanation by the Palestinian Authority. Even the January 20 election date was not made official until the second week of December 1995 when Yasser Arafat issued a decree formally setting the date. That announcement prompted some political leaders, including Haider Abdel Shafi, to advocate postponing the elections to allow for further discussion about the electoral system and more time for political preparations.

The Palestinian Authority defended the January election date, arguing it was necessary to ensure Israeli adherence to the redeployment schedule and to minimize any unforseen security problems that could jeopardize elections from taking place. While some of these changes had been made to promote greater participation in the first Palestinian elections, they also increased voter confusion and diminished public confidence in the electoral process.

Election campaign

The 1996 elections came under difficult conditions. During the campaign period, the overall political environment leading up to the elections on January 20, 1996 was filled with uncertainty. The political, economic, and social landscape was hardly conducive to democratic contest for limited power. The norms of free press and media hardly existed. Most important, the commitment of the political leaders of the rival political factions to the democratic process remained at best questionable. Authoritarian means of rule re-appeared systematically during election time, as the Palestinian Authority detained without charge opposition figures, journalists and human rights advocates. As a result of these incidents, many questioned the commitment of the Palestinian Authority to observe democratic values and safeguarding a fair electoral process. The Palestinian public and observers grew increasingly concerned about the role of the PA’s security forces and their potential for compromising fair electoral competition.

Within this environment of uncertainty, the candidates in the elections forged ahead and conducted as normal of a campaign as was possible. Despite the profusion of candidates, real political competition was scarce as platforms demonstrated little diversity. Most candidates campaigned on promises of Palestinian statehood, the removal of settlements, and the status of Jerusalem, issues over which they would exert no influence if elected to the Legislative Council. With little variation among the candidates on the issues, candidates distinguished their appeal to voters by emphasizing their personal qualifications, family and clan ties and political connections. In 1996, an individual candidate’s affiliation with the larger Palestinian movements counted more than the candidate’s association with a particular party.

Although the election law established a mechanism by which “partisan entities” registered with the Ministry of Interior, more often than not these partisan entities were small, newly formed groups without broad-based support. Approximately 75 percent of the candidates ran as independents. The remaining 25 percent registered as candidates of one of the parties.

On balance, the conclusions articulated in most media were that the 1996 elections were generally speaking, a success. However, within a day many Palestinian candidates had filled complaints with the Central Election Committee over the election outcomes. Complaints were raised regarding the lack of access to the mainly Fatah-dominated broadcast media as a means for conveying campaign messages. Questions were raised about the partisan use of resources by the Palestinian Broadcast Corporation to bolster Arafat’s candidacy and those of Fatah candidates, which was a clear violation of the election law, according to which candidates and parties would be given equal and fair opportunities for their electoral campaign in agreement with the official Palestinian information media. There was no equitable access to the media for all candidates, and news coverage did not reflect balance and fairness.

There were also complaints from political parties that Palestinian officials were using PA resources, such as cars, offices, and telephones to support Fatah candidates. According to the election law, officials of the Palestinian Authority could not be nominated as candidates unless they renounced their offices at least 10 days before the date fixed for the publication of the final lists of candidates.

A public opinion poll taken after the elections showed a mixed verdict of the electoral performance as far as the public was concerned. A substantial minority of the respondents (20.5 percent) felt that the election was not fair, although as might have been expected there were significantly different patterns of responses between Fatah (59.3 percent “fair”) and Hamas affiliates (24.3 percent) in this regard. About the same percentage of respondents (21.0 percent) indicated that the election did not meet their expectations.

The 1996 electoral system has crucially influenced the balance of power in Palestine. For all practical purposes, within the formal system there had been no competition between political parties or factions. But there has been lively rivalry between individuals, initially between those aspiring to become candidates of the predominant party Fatah, and subsequently between the few who were successful and the many who were not — both party members and others. The electoral system which robbed small parties or factions of their prospects worked to the advantage of independent candidates with a strong local following. The electoral system made sure that Fatah had won before the campaign had begun, but unintentionally left it to the elections to decide who would represent Fatah in the legislature. In short, thanks to the electoral system, it was pretty clear in advance which party would win — at this level the elections were predictable, but just who would be representing this party, as is today, became increasingly interesting.

Manufactured majority

The results of the 1996 elections show that the Palestinian electoral system produced a manufactured majority of Fatah. Since it only received 30.9 percent of the votes, while it occupied 56,8 percent of the seats. Fatah won less than a majority of the votes. Although not organized as a party or even a bloc, the independents received 57.5 percent of the votes but occupied only 39,7 percent of the seats. The Palestinian electoral system systematically favored the larger party, produced a disproportional election outcome and discouraged multipartism. In other words, it had the effect of turning the largest single minority of votes cast in the national electorate into a clear majority of seats in the Palestinian Legislative Council for the largest single party. The manufactured majority is thus artificially created by the electoral system.

Votes-Seats Distribution (%) 1996 Election Results


Political Affiliation

% votes

% seats

No. seats

Independent

57.51

39.7

35

Fatah

30.90

56.8

50

Fida

02.04

01.1

1

NDC

02.25

01.1

1

Liberty & Independence

01.64

01.1

1

The effective number of parties was reduced, which was effected by the mechanical effect of the majority formula. This phenomenon is exemplified, for example, in the 1996 elections where for each 21,711 votes cast for it, Fatah won a seat, and for every 57,720 votes cast for it, the Independents won a seat. But it took Fida 71,672 votes, and NDC 79,058 votes to get its candidates elected. It takes thus more votes, by a factor of three for the smaller parties, to win a seat, as compared to Fatah.

All prominent Palestinian opposition movements — Hamas, Islamic Jihad, PFLP, DFLP — did not participate in the elections. The boycott of the Palestinian political opposition had limited success. The fact that the opposition additionally to their other reasons for the boycott, demanded a system of strictly proportional representation in which the territories were treated as a single constituency - - the system used for the Palestinian presidential elections — indicates that the chosen electoral system was at least a secondary reason for their boycott.

To argue that the elections were about consolidating power, not democracy, is not to dismiss the level of enthusiasm they generated among familial and local groups, as well as within Fatah itself. While the political opposition did not participate — a number of previously non-political Palestinians did. Most Palestinians did not want to miss the chance to vote even if they could not cast a vote for their party or faction of choice. Asked whether respondents would cast their votes, even if the Palestinian political opposition would call for a boycott, 71.3 percent of the respondents answered positive, while 13.8 percent said that they would have boycotted the elections, and 14.9 percent of the respondents were not sure.

Officially, in total, 73.5 percent of the registered voters, participated in the elections. Additionally, there was a low number of spoiled and blank vote casts. According to the Central Elections Committee, 3.5 percent of voters in the West Bank cast invalid ballots and 4.3 percent cast blank ballots, while in the Gaza Strip, 2.3 percent cast invalid ballots and only 1 percent cast blank ballots.

Furthermore, the number of seats for each district was disproportional to the population. The basis for allocating seats to each district was a political consideration. Moreover, the elections as such could not be a means of (vertical) accountability since in Palestine, elections are not periodical. This results in the lack of legislators’ incentives to act responsible to their constituencies. Moreover, the high expectations of the Palestinian public, as expressed on election day are clearly not met. The expectations were high but the capacity of the PLC to meet them has been extremely low.Elections were until now a one-time event, which does not institutionalize elections in the emerging political system.

Election results

The outcome of the presidential elections was never in question. Yasser Arafat received 88.2 percent of the vote of those participating in the elections for the president, ranging between a low of 85.5 percent to a high of 93.3 percent of the votes in the electoral districts. It should be noted, however, that fully 22 percent of the voters submitted blank ballots for the presidential (non)competition, most probably because it was so widely perceived that no real contest was involved in this race. Samiha Khalil, Arafat’s opponent for the presidential elections, received 11.7 percent.

Fatah candidates won 50 of the 88 seats, giving it an outright majority in the Council. Winning Fatah candidates included members of Fatah’s traditional leadership, notables and business elite, which obviously overlap considerably, a small handful of Arafat’s appointed Fatah representatives, and tribal representatives who were put on Fatah’s list. Moreover, many of the 16 non-aligned independents fall into this last category, and were likely to vote with Fatah on any important issue. Thus, the elections produced a legislature in which two-thirds to three-quarters of the members can be counted on to support Arafat on any major issue.

However, the electoral system did not institutionalize elections as periodical. Elections were only an one-time event and it did not set an institutionalized path for the future. As such the 1996 elections did not serve as a mechanism of accountability. The electoral system did not allow the representation of all political parties or factions and hence did not reflect the Palestinian political spectrum nor the prevalent Palestinian political culture.

Conclusion

In sum, institutional choices are important. On the long run, unbiased institutional design of a political system is the most genuine guarantee for the prospects of democratization, since the political map changes much more rapidly than the political system. The Palestinian electoral system was partly designed through the Oslo Accords, and hence, were not completely designed with full consent of the Palestinian public. A significant part of the institutional choices made in this limited framework are not conducive to democratic transition.

Although the 1996 elections represented an important step for Palestinians in the occupied territories, they were far from being competitive between political parties. There was competition but due to the electoral system, and the boycott by opposition parties, this competition was mainly between individual candidates from the predominant party Fatah and not between contending political parties. The electoral system was designed to strengthen and consolidate the already empowered Palestinian Authority. The institutional choice of a district-system in combination of a majority system made it virtually impossible for candidates of the smaller factions, who decided to participate in the elections, to be elected. The number of seats for each district was disproportional to the population. The basis for allocating seats to each district was a political consideration. Moreover, the elections as such could not be a means of accountability since in Palestine, elections were not periodical. This resulted in the lack of legislators’ incentives to act responsible to their constituencies. The high expectations of the Palestinian public, as expressed on election day were clearly not met. The expectations were high but the capacity of the Palestinian Legislative Council to meet them has been extremely low. Elections have been until January 9, 2005, a one-time event.

There is no reason to believe, a priori, that political personalism visible now will suddenly end. Nor is it expected that rule by coercion, which permeated the system under Oslo will vanish. Especially if the peace process does not produce for the Palestinian public satisfying outcomes, the Palestinian Authority will most likely be compelled to sustain its current structures in order to maintain social control.

The characteristics of a future Palestinian state, then, will emerge not only from inertia in the present political system but also from a recognition of how fundamental issues currently unresolved will likely impact the political structure. The question that then arises is whether the Palestinian regime has the capacity to withstand inevitable societal pressures. Strong opposition to the Palestinian Authority will likely emerge, because of both its structural coercive rule and its probable failures in dealing with the occupying power, Israel.

In the final analysis, a political system, however wisely designed must depend for its reservation upon the support of society at large — its major forces, groups and institutions. It relies, therefore, on a public consensus which recognizes as legitimate authority only that power which is acquired through lawful and democratic means. It depends also on the ability of their leaders to govern, to inspire trust, to respect the limits of their power, and to reach an adequate degree of consensus.

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    Arjan El Fassed is one of the founders of The Electronic Intifada. This article was based on research done in 1998, found in “Institutional Design and Prospects for Palestinian Democratic Transition,” (Arabic, CPRS, 1999). All data used from opinion polls taken by CPRS between 1996 and 1998.