Palestinian Center for Human Rights 16 February 2006
A women walk past election posters for the Palestinian parliamentary elections in which Hamas won the majority of seats. (MAANnews/Inbal Rose)
The Palestinian Centre for Human Rights followed with great interest and concern the proceedings of the final session of the outgoing PLC, held on 13 February 2006. This session was held 5 days before the scheduled constitutional oath taking of the new PLC, and 18 days following the election of a new PLC, signaling the transfer of delegation by voters from the old to the new PLC. PCHR expresses astonishment by the passing of new laws and taking new decisions at this time, which raises doubts over the true motives behind the session.
PCHR is fully aware that the term of the outgoing PLC ends “when the members of the new PLC make the constitutional oath” in accordance with Article 47 (repeated) of the Basic Law of 2005, amending some provisions of the Basic Law of 2003. Nonetheless, the PCHR notes the following concerning the session in question, and the resulting decisions and laws:
Arbitrary Use of Legal Mandate
The legality of the session is not in question, as it was held in accordance with Basic Law and its amendments. However, the timing of the session contradicts with customary traditions in democratic systems. In addition, it contradicts with the basic philosophy of the legislative process, and the basics of the PLC’s mandate and the electoral process. It is unacceptable for the outgoing PLC to convene more than two weeks following the legislative elections to decide on ordinary issues, including staff recruitment, which could be discussed by the new PLC. Holding such a session can only be understood as an attempt by an outgoing majority to pass new laws and decisions before they become a minority in the new PLC. PCHR reiterates its position that the democratic mandate given by the Palestinian people in 1996, the outgoing PLC’s mandate ended in May 1999, with the end of the interim period set by the Israeli-Palestinian Interim Agreements.
Constitutional Oath of the New PLC
The Palestinian Basic Law does not set a timeframe for the constitutional oath of a new PLC following holding legislative elections. Palestinian legislators must review this issue in the future in order to create a clearly defined constitutional process. Nonetheless, Article 2-1 of the PLC Bylaws, issued on 7 June 2000 and published in issue 46 of the Palestinian Legal Journal on 16 August 2003, “the President of the PNA shall invite the PLC to a session in the first regular term in the second week following the announcement of the official results of the elections.” The aforementioned date passed without inviting the new PLC to convene. This allowed the outgoing PLC to continue its work, and hold a final session that was not necessary.
Amending the Constitutional Court Law
The most notable issue raised by the final session of the outgoing PLC is approving the amendments proposed President Abbas regarding the Constitutional Court Law. The letter sent by the President of the PNA to the PLC Speaker, Mr. Rawhi Fattouh, on 23 January 2005, indicates that the President has approved the text sent to the President’s Office by the PLC Legal Committee. However, it came to light that this text was different from that approved by the PLC. The President decided to rescind his approval dated 29 December 2005, and send back the Law to the PLC for amendment. In the final session of the outgoing PLC, the amendments proposed by the President were approved. In light of this, PCHR points to the following:
The Constitutional Court Law is very important; and PCHR requests placing guarantees to ensure its impartiality and independence. This will enforce the principle of independence of the judiciary, as stated in the Basic Law and its amendments, and in the Judicial Authority Law #1 of 2002.
The Constitutional Court Law and the amendments approved by the outgoing PLC in its final session contradict with the Basic Law and Judicial Authority Law in a number of points:
Amending Article 5 stipulating that the initial forming of the court by appointing the court’s chief justice and judges via a presidential decree “in consultation” with the Higher Judicial Council and Minister of Justice. Article 99 of the Basic Law and its amendments provides that appointing judges is conducted through the means stated in the Judicial Authority Law. Article 18 of the Judicial Authority Law prescribes that “filling judicial vacancies is done through a decision by the President of the PNA based on nominations by the Higher Judicial Council…” There is a clear difference between “consultation” and “nomination.” In addition, the Minister of Justice is given access, in contravention with the law, to an authority of the Higher Judicial Council.
Articles 24.2 in the initial draft determined the jurisdiction of the court as “monitoring the constitutionality of laws, decrees, presidential decisions, cabinet decisions, and regulations.” In the amended version, this is limited to “monitoring the constitutionality of law and regulations.” Thus, decrees and presidential decisions were removed from the court’s jurisdiction. It is noted that Article 103.1.a of the Basic Law states that the court has the jurisdiction to monitor “the constitutionality of laws, regulations, and others.”
PCHR is seriously considering challenging the constitutionality of the approved law if it is published in the Palestinian Legal Journal, and goes into effect as a law.
Creating New Posts in the PLC
PCHR was surprised by the outgoing PLC’s decision to create the posts of “Secretary-General” and “Deputy Secretary-General” in the PLC. This decision contradicts with Article 50 of the Basic Law and its amendments, which determines the PLC Presidency Office in the Speaker, 2 Deputy Speakers, and Secretary, all of whom are elected in the first session of the PLC. Article 4 of the PLC Bylaws states this clearly as well. In addition, Article 11 of the Bylaws states that a “General Secretariat” is formed by the PLC Presidency Office, and is headed by the Secretary, to oversee the administrative, financial, legal, media, public relations, protocol issues and other tasks. If there was a need to create new posts and make amendments, why was not this left to the new PLC? PCHR does not find any explanation for this other than it being an attempt to impose what can be imposed before the new PLC takes office.
In light of the aforementioned, PCHR calls for reviewing the Constitutional Court Law, and giving sufficient time to discuss and work out a law that is compatible with the Basic Law and the Judicial Authority Law, reviewing the newly-created posts by the new PLC and amending the Basic Law to ensure a clearly-defined mechanism and timeframe for the constitutional oath of a new PLC.
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