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Summary:

On January 8, 2009, the Palestinian President Mahmoud Abbas’s term in office will come to an end, under complex internal, regional and international circumstances, all affecting the directions of the crisis and the potential solutions.
In light of the difficulty in holding presidential elections during the continued separation between the West Bank and Gaza Strip, and unless the Palestinian parties agree on a solution for the presidency issue, based on a comprehensive solution to the Palestinian internal crisis; What appears from the positions of both parties of the crisis, is that the Fatah and the Presidency, will try to extend Abbas’s tenure until the next legislative elections in January 25, 2010, and at least for six months, subject to extension. On the other hand, Hamas firmly refused such extension, and declared Abbas’ illegitimacy after the end of his term in office. This means deepening the division, and further establishing the separation between the West Bank and the Gaza Strip.

The Crisis of the End of Mahmoud Abbas’s Term in Office
The Legal Backgrounds
The Political Backgrounds
I. The Internal Factor
II. The External Factor
III. The Arab Position
Possible Scenarios
I. Abbas leaves the office and new elections are held
II. Finding a compromise formula to resolve the crisis
III. Extending the Presidency term of Abbas until the end of the Legislative Council term
Suggestions and Recommendations

The Crisis of the End of Mahmoud Abbas’s Term in Office
Mahmoud Abbas won the presidential elections held on January 9, 2005, in a competition that could be considered as a mere formality, given the non-participation of Hamas in the race. However on Thursday night January 8, 2009 his term in office as the second president of the Palestinian Authority will end. Thus, the internal Palestinian crisis would become more complex; especially in light of the difficulty of holding presidential elections with the continued separation between the West Bank and Gaza Strip, the tendency of authority in Ramallah towards the extension of Abbas’s presidency, and the categorical refusal from the part of Hamas’s to this extension.

In this political polarization between Fatah and Hamas, the two parties of the crisis, the division situation in the Palestinian arena goes towards further exacerbation. Meanwhile, the chances of reconciliation and returning to the national unity required at this stage are becoming more limited.

The Legal Backgrounds
The extension for President Abbas is based on extending his presidency until the next legislative elections, that is, until January 25, 2010. From the legal perspective, this will be done by holding presidential and legislative elections simultaneously, under Law 9/ 2005 on the general election and presidential decree no. (1) on the general election law of 2007. This is what a legal memorandum prepared by the Secretariat of the PLO announced on October 9, 2008, based on the fact that the election law provides for the completion of presidential and parliamentary terms simultaneously. In addition, the amendments to Article (36), added after the election of Abbas, do not determine a fixed date for the start of his term.

However, this jurisprudence clashes with some legal and constitutional violations; mainly that there should be constitutional and democratic legitimacies to extend the president’s term, which does not apply in this case.

According to the Palestinian constitutional system, the authority is given to the president by elections. Therefore, his tenure must be of limited duration in accordance with the democratic principle which requires the duration of presidency to be determined. At the end of this term the elections must be renewed periodically, so that the authority of the President would have the required democratic legitimacy . The constitutional (ed. note. the Palestinian constitutional source is currently a basic document known as “the Basic Law”) amendment to the Basic Law on August 13, 2005 legally delimits the tenure of the Palestinian National Authority (PNA) President and the Legislative Council members by four years from the date of the election, expressly for the Legislative Council, and implicitly for the PNA President.

From the constitutional legitimacy perspective, there are two points that clash with this jurisprudence of extending of the President term until the expiry of the legislative Council membership term, on the basis of a law or a presidential decree on the law on general elections. Firstly, the different beginnings of the president’s term and the term of the Legislative Council, and therefore different renewal date for the presidential election date from that of the Legislative Council elections. Secondly, the Basic Law is a “constitution” that could not be modified by a regular law.

The first point mentioned above is shown by Article (36) of the Basic Law amended in 2005, which states that the term of the PNA presidency is four years. The president was elected on January 9, 2005, and thus, his term expires on January 8, 2009. Similarly, article (47 / 3) of the Basic Law amended in 2005 states that the term for Legislative Council membership is four years from the date of their election, and elections are to be held every four years periodically. Since the Legislative Council elections were held on January 26, 2006, the term of its members and their representation of the Palestinian people ends in January 25, 2010.
Regarding the second point, article (1/2) of the General Elections Law No. (9) for the year 2005 added a provision that was not stated in the Basic Law. It stipulates that the President of the Authority and the Legislative Council members are to be elected at the same time, and this is legally impossible under article (36) and article (47 / 3) of the Basic Law. These two articles state that the term of the PNA President and the Legislative Council members are four years from the date of each election; thus, President’s term expires one year before the expiration of the Council term. Holding the legislative and presidential elections (whether states in Article 2, Article 97 /4, or Article 111) at the same time requires an amendment to the Basic Law provisions. The amendment of the Basic Law as stated in Article (120) could not be done without the consent of two-thirds majority of members of the Legislative Council. Therefore, the amendment introduced by the election law is void due to its unconstitutionality for violating the provisions of the Basic Law.

In spite of the legal and constitutional violation of this extension, the Palestinian political inheritance should be taken into consideration; where overriding the laws and conventions is an established tradition before and after the existence of the Palestinian Authority. This means that the legal and constitutional violation alone will not prevent the actual extension.

The Political Backgrounds
The expiration of the Presidency term of Mahmoud Abbas coincides with a number of complicated political circumstances, notably the occurrence of important political events for the parties that have the most impact on the Palestinian arena. Apart from the Palestinian presidential elections, there are presidential elections in the United States, and the issue of forming a new government or early elections in “Israel”.

Given the state of the shift in decision-making positions in the above mentioned three parties, there is a political stagnation in the efforts for a political settlement in the Middle East. These shifts will normally delay the political process further, and for a period not less than three months after it.

This means that the next stage (until the beginning of 2009) will not be in favor of a significant momentum in negotiation with “Israel”, which might provide an opportunity for devoting time to address the internal Palestinian situation in order to deal with the international community with greater internal cohesion.

However, reaching this stage requires overcoming many obstacles, particularly setting priorities for the Palestinian forces; whether the priority is to resolve the problem of the Presidency, or is it to end the internal strife as an approach to resolve this problem?

This question could not be answered without taking into account the factors and circumstances that may affect the direction of the crisis, which could be summarized as follows:

I. The Internal Factor: The position of both Fatah and Hamas, towards the issue of the expiration of President Mahmoud Abbas’ term is the key determinant in this context. In this framework, the authority in Ramallah will turn to the PLO institutions to give legitimacy to any decision taken, while Hamas will turn to the Legislative Council in which it has a majority.
The position of the Authority in Ramallah, in turn, will be governed by some factors including: the status of negotiations with “Israel”, the internal problems in Fatah itself, and the fears of the dominant drive in Fatah that any changes in the presidency would weaken the position of this drive.
In addition, there is the culture of “vengeance and personalization”, implied in the structure of Palestinian factions organization, which prioritizes personal prestige and social status over the political considerations. Noteworthy as well in this context is the role of the state of division occurring between the West Bank and Gaza Strip in obstructing holding the presidential elections.

II. The External Factor: External requirements, particularly the Israeli and American, topped by the recognition of “Israel” are a vital prerequisite for the acquisition of the so-called international legitimacy. Thus, the Palestinian side that recognizes these requirements and proceed in negotiations with “Israel” will be given this legitimacy, even if it did not have a democratic or constitutional legitimacy and those who do not meet these requirements will find themselves in the face of external pressures working to unseat them.
Practically, the Palestinians can not hold presidential elections without the approval of U.S. and the Israelis, because the West Bank is still under Israeli occupation, and the Israeli guarantees must be obtained to provide security for the elections. Any obstructive Israeli measures, such as restrictions on freedom of movement through the military barriers or launching military operations, would prevent completing the ballot.
There is also rejection or at least great reluctance to accept the participation of Hamas in the elections, especially in the absence of guarantees to prevent its victory, which would lead to repeating the present scenario.

III. The Arab position: The Arab States’ acknowledgement of the legitimacy of either of the two parties of crisis, plays an important role in increasing this party’s likelihood of prevailing, where it will be difficult for the other party to deal with the Arab circles without their acknowledgment of its legitimacy. Most probably, the Arab position will support the U.S. orientations. One of the most prominent forms of pressure that could be exercised in this context is the continued closure of the Rafah crossing from outside.

Add to the above factors, a factor in which the previous three factors would overlap. This is the possibility of declaring the Gaza Strip as a rebel territory. The authority in Ramallah may opt for such declaration, which means more pressure on Hamas in order to suppress it and topple its control over Gaza.
However, this declaration further widens the division and involves significant risks, including opening the way for military intervention by Israeli, Arab or even international parties to end the state of “rebellion”, or the issuance of international resolutions of blockade to prevent Hamas leaders from leaving Gaza, and to prevent its leaders outside Gaza from moving from anywhere, perhaps even to the extent of calling upon the UN member states to help extraditing them. This would also exacerbate the status of financial and economic blockade imposed on the Gaza Strip, as well as putting forward the idea of regaining control of the Gaza Strip by force using the Palestinian security forces, although this possibility remains weak.

Such a declaration also might not be helpful for those who declare it, because the conditions of the Gaza Strip are very difficult. Already, no effort was speared to strangle the Strip financially and economically to take it out of Hamas control. From the legal perspective, there is not any Palestinian law provides a definition for “a rebel territory”, or provides any procedures for such a situation.

Possible Scenarios
I. Abbas leaves the office and new elections are held
This scenario is based on the President Abbas’ insistence on ending his term in the event of failure to reach a solution. Thus, the President of the Legislative Council (or his deputy, because the latter is arrested) would become president for sixty days, after which elections for a new president will be held in accordance with the articles of the Constitution.

But the probability of this scenario seems to be very weak in the light of statements and attitudes of the Presidency and Fatah that are directed towards the extension, and in light of their reluctance to give the presidency to Hamas easily, even temporarily. The Arab and international parties are pushing in the same direction.

II. Finding a compromise formula to resolve the crisis
This scenario comes in accordance with the “win-win-game”. It is based on reaching an agreement between Fatah and Hamas to end the crisis, either by forming a national unity government; or by forming a transitional technocratic government with the extension of President Mahmoud Abbas for more six months, or until the next legislative elections, or any later agreed-upon date to hold presidential and legislative elections.

However, the success of this scenario depends on the existence of serious dialogue between Fatah and Hamas. It also requires the internal crisis to be comprehensively resolved, especially with regard to a number of key files such as PLO and the security agencies, while Hamas does not seem to provide concession on the issue presidency without an integrated package solution. This should be accompanied with easing of pressures on Hamas that aim at toppling it in the Palestine and Arabic arenas, and to create a program to build confidence between Hamas and these parties.

This is a possible scenario, if Hamas succeeded in breaking out of the bottleneck, and if the parties which are currently putting pressures on Hamas give up the possibility of toppling and suppressing it.

III. Extending the Presidency term of Abbas until the end of the Legislative Council term
This scenario is based on finding out a constitutional way that allows President Abbas to remain in office until the end of the Legislative Council term in January 25, 2010 by a resolution from the Central Council of the PLO, or the PNC, but the limits of the implementation of such a resolution will be limited to the West Bank only. In response, Hamas would declare that Abbas has no legitimacy by January 9, 2009, and the Legislative Council would announce the end of his term, while he would be replaced by the President of the Council or the vice President and new president would be elected, who will be able to work only in Gaza. This would worsen the division between the West Bank and Gaza Strip, and lead to further intensify the division in the Palestinian rank.

This option could also be foreseen in the light of the information about forming earlier a special committee in Ramallah for this purpose, and the statements by President Mahmoud Abbas himself, who declared in an interview him with Ha’aretz newspaper on September 14, 2008, his intention to conduct presidential and legislative elections simultaneously in 2010, which confirms his intention to remain in office until that time. Add to the above, the document issued recently by the PLO Secretariat, which considers that there is no legal basis to say that the term of President Abbas is ended.

This scenario is also reinforced by Hamas’s announcement that Abbas loses his legitimacy with the end of his term. In a speech in Damascus on September 13, 2008, Khaled Meshaal, the president of the movement’s political bureau said that there no legitimacy of President Abbas after the presumed date of the end of his term, unless he wins legal and fair elections. The Hamas representatives in the Legislative Council held a meeting in Gaza on October 6, 2008 where they decided to consider the term of Abbas ended by midnight on January 8, 2009, and that the president of the Legislative Council or his deputy would succeed Abbas in presidency until the presidential election is held, with the possibility of extending their presidency if these elections were hard to be conducted.

Events on the ground are moving towards the extension scenario. However, there is one possibility left which is the possibility that the two parties may use the policy of “brinkmanship” in a lose-lose-game, as a final attempt to pressure extremely, so as to achieve the greatest possible gains in an always probable last-minute consensus, avoiding falling from the edge then.


Suggestions and Recommendations
1. Forming a transitional government and electing a temporary president for a period of time that extends until the next legislative elections, and then conducting presidential and legislative elections simultaneously.

2. Giving priority to addressing the internal dissent rather than any negotiating or external priorities, and giving the higher priority to the Palestinian interest over any partisan or factional interests.

3. Initiating a serious and in-depth dialogue to end the Palestinian division, providing that the dialogue investigates the root of the crisis between Fatah and Hamas, and that it includes the various factions and political forces and civil society institutions.

4. Reforming and restructuring the PLO into a whole entity for all political forces on the Palestinian arena, then creating a charter governing the Palestinian political action and sets priorities that should be implemented.

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