Introduction:
The performance of the presidency of the Palestinian Authority (PA), internally and externally, and since its inception in 1994, has been marred by multiple problems resulting from the predicament brought about by the Oslo Accords and their repercussions that remain extant to the present day. This is in spite of the Oslo Accord’s deterioration into empty words on paper, except for Israel’s selective implementation of its security and economic provisions. It also needs to be seen in the context of negotiations being pursued as the only plan, and the climate of change unfolding in the region since the start of the revolutions and popular uprisings in the region in early 2011.
The manifestations of the Oslo Accords included a restrained PA bound by unilateral commitments, and a Palestinian political system characterized since its inception by overbearing presidential powers, before it became a mixed system with broad powers given to the PA president. The government was given vague powers, in tandem with the marginalization of the judicial authority, and there was an overlap rather than separation between the powers. In parallel, there has been a severe economic crisis as a result of the Israeli occupation and the unfair commitments imposed by the Oslo Accords, in addition to the dependency on the policies of the International Monetary Fund and the World Bank.
All of this was often accompanied by tension between the presidency and Fatah on the one hand, and other Palestinian forces and factions on the other hand, as result of the PA’s implementation of its security obligations under the Oslo Accords. It reflected confusion since the PA sought to preserve agreements – which compels it to resort to a flexible diplomatic discourse – while the reality on the ground required a different discourse, conduct, and organization in light of the occupation’s aggression against the Palestinian people.
The division following clashes between Fatah and Hamas, which resulted in the latter’s takeover of Gaza Strip (GS) in mid-June 2007, deepened the crisis, entrenching a sharp dichotomy between the West Bank (WB) and GS, and two conflicting discourses that were difficult to reconcile despite successive official reconciliation meetings and agreements.
As the presidency moves ahead with its pro-negotiations choice, without any leverage or national consensus, having relinquished other strategic alternatives presented by the resistance in all its forms, Israel goes ahead with its sustained aggressive approach, overwhelming the area allocated for the establishment of a Palestinian state with settlements, bypass roads, and military checkpoints. The Oslo Accords have done little to curb Israel’s colonial enterprise with its vicious cycle of negotiations in which the Palestinian leadership finds itself trapped, amid full American bias in favor of Israel, and weak Arab-Islamic support for the Palestinian issue.
First: The Legal Reference of the Institution of the Presidency
There was multiplicity in the legal references on which the institution of the presidency relied on from its establishment in 1994 and until the Palestinian Basic Law (interim constitution) was issued on 7/7/2002, amended on 19/3/2003, and its partial amendments in 2005. Consequently, there was confusion concerning the criteria of these references in defining the legitimacy of governance, with lack of specifications regarding the powers of the president, and ambiguity regarding the relationship between the three branches of power. The Basic Law that came into force later maintained the same problems, albeit in different forms.
The legitimacy and reference framework of the presidency, its obligations and responsibilities, are based on the Palestine Liberation Organization (PLO) charter, and on a decision of the Palestinian Central Council (PCC) on 10–12/10/1993 in Tunisia of forming the PA with Mr. Yasir ‘Arafat, the chairman of the Executive Committee of the PLO, heading its council. However, there are Palestinian factions, led by Hamas and the Palestinian Islamic Jihad (PIJ), as well as other broad social and political factions, which are not represented in the PLO. At the same time, the results of presidential and legislative elections that were held for the first time in the occupied territories on 20/1/1996, which led Fatah to control the PA and its executive and legislative institutions are not reliable, because the majority of factions boycotted the elections, including factions within the PLO like the Popular Front for the Liberation of Palestine (PFLP) and Democratic Front for the Liberation of Palestine (DFLP).
On the other hand, relying on the Basic Law as the reference frame of the PA was a later step, rather than a “foundational” step. Indeed, despite emphasizing that the “PLO is the reference frame of the PA,” President Yasir ‘Arafat signed the Basic Law on 29/5/2002 under external pressure and internal demands for reform, despite having been passed in the Palestinian Legislative Council (PLC) in 1997. Thus, the Basic Law came after the establishment of the PA.
The issue has to do with the problematic relationship between the PLO and the PA. There is contradiction between the legality of PA’s commitment to its agreements with the occupation and to the security functions specified in the Oslo Accords. On one hand the PA must renounce violence, protect Israeli security, and punish the resistance and its cadres, while on the other hand it is responsible for the legitimacy of the PLO as a national institution and framework. The PLO is committed to leading national resistance until the return of the refugees, self-determination, and statehood are achieved, and it is the party responsible for guiding, monitoring, and holding the PA accountable.
From its formation, the PA sought to shift the political decision-making process from the frameworks and institutions of the PLO to its own departments and ministries, and seize its jurisdictions and dominate national action, including handling negotiations, and Arab and international relations, given the international view of it as a legitimate authority. As for the renewed demand to revive the PLO after being neglected for so long, this followed Hamas’s landslide victory in the legislative elections on 25/1/2006, from the standpoint of “thwarting the elected government,” while the issue is now part of the reconciliation talks that started after 2007, and which have produced no real progress regarding the issue of rebuilding the PLO.
While the Oslo Accords prevent the PA from engaging in foreign affairs, which are assigned to the PLO, this is part of the bid to block powers related to independence and sovereignty for an Authority that can become a state. Israel does not conceal its plans to amend the Oslo Accords to practically assign the representative and diplomatic functions to the PA representing the Palestinians inside Palestine exclusively, according to international law expert Anis Qassim.
The Oslo Accords established the third pillar of the PA’s legal frame of reference, if not the main pillar, as many believe. The Accords imposed commitments and restrictions on the performance of the PA and its scope of activities. The majority of Palestinian forces and factions reject the Accords, as they create a restricted entity with limited powers over the occupied WB and GS.
Some include in the foundations of the political system the Independence Document issued in November 1988. However, the leading bodies in the PLO did not prepare to implement it effectively, and bylaws and regulations within the PLO were not adjusted to make implementing the document mandatory. At the same time, laws that were in force before the establishment of the PA are sometimes used, despite their overlap and lack of harmony, for example the case of Jordanian laws in the WB and Egyptian laws in the GS. Even though the PA has made serious strides in unifying laws and regulations, and enacted other legislations to manage the affairs of Palestinian society, the schism deepened the disconnection legally and not just geographically.
According to legal experts, there are two frames of reference governing the work and commitments of the presidency. The first is internal, and governs the relations among the branches of power and the affairs of the community and daily life. The second is Israeli military orders issued by the military governor in accordance with the laws of the occupation, related to security, the settlers, and the lands occupied in 1967. Since the PA’s establishment, the governor and his civil administration are the source of its authority, under the Oslo Accords. The latter explicitly stated that the PA rules and exercises powers that were transferred to it, while the powers that were not transferred remained in Israeli hands, according to Qassim.
This confusion has a negative impact on the performance of the presidency and its relationship with existing authorities, and on the fabric of Palestinian society.
1. Powers of the Presidency
Despite being expanded initially, the de facto “consecration” of presidential authority before the issuance of the Basic Law, and its “expansion” after the Law’s entry into force, expanded this authority, touching on various vital affairs. Since the creation of the PA, and the PLO decision to form a government, “to exercise legislative and executive power (…) and judicial functions,” President ‘Arafat had absolute power, monopolizing political, financial, and security decision-making, as well as the decision to form government and preside over its meetings. This continued even after the creation of the post of Prime Minister, shortly before the siege on ‘Arafat was tightened. He could issue decrees and presidential decisions, which had the force of law; appoint ministers, heads of security forces, and civil servants; and monopolized appointments to major posts as well as the power to form or dissolve public institutions —away from the PLC, which the Basic Law allows to hold the PA president accountable.
The presidency imposed its authority using various methods, including building armed security forces, which comprised eight agencies dominated by Fatah, with the goal of controlling the overall situation and also to fulfill security commitments to the Israeli side, while the judiciary was isolated, weakened and neutralized. This is in line with the Oslo Accords, which did not allow the PA to form any armed forces other than police units, and restricted it in terms of security, and without linking it to a mutually agreed resolution to the conflict. The appointments in these security forces created a major problem in the Palestinian social and political structure, and fostered divisions in the Palestinian midst, not only as regards the conflict with the occupation, but also over how to exercise control and “regional” influence in the occupied territories, which even caused Palestinian civilian casualties.
As Fatah won the presidency of the PA and the majority of the PLC seats (88) in the 1996 elections—which the majority of forces and factions boycotted—Fatah imposed its dominance over influential positions, executive decision-making circles, the legislative branch, and the majority of public institutions and security forces, through figures directly or indirectly affiliated to Fatah. Thus, it gained itself various privileges and advantages. This created extreme overlap between Fatah and the institutions of the PA, causing popular discontent in parallel with accusations of widespread corruption within the institutions of the PA. As a result, Fatah’s popularity declined in favor of the Islamist opposition, which had dramatic implications at a later stage.
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