Although an announcement of Palestinian local elections would be held, had led to some hope regarding the possibility of breakthrough towards reforming the Palestinian polity, a politicized decision by the Supreme Court of Justice in Ramallah excluding Gaza Strip (GS) from elections has now created a new obstacle in the path of Palestinian internal reforms. Whatever course the potential scenarios take, whether in the direction of holding the elections at a later time in the West Bank (WB) and GS, holding them in the WB only, or cancelling them; the implications underscore the importance of analyzing the function of elections in the Palestinian context and the need to build national consensus over it to avoid turning what is an opportunity into a threat.
First and foremost, the context mentioned above has highlighted the weakness of the Palestinian political landscape, which reinforces the occupation’s ability to turn the threat into an opportunity to further its own policies. Secondly, it demonstrates that the absence of national consensus over the requirements and foundations for ending the political division could turn local and general elections into a means to deepen the division or at best, to perpetuate rather than resolve it.
Developments between the Palestinian government’s decision on June 21 to hold local elections and its decision on October 4 to postpone them for four months show how these elections have turned from being an opportunity to threat. It was an opportunity to challenge the occupation’s policies in dividing Palestinians, and it turned into a threat when the division between the WB and GS turned into a separation. Not only that, but new threats have consequently emerged to the societal fabric and civil peace, following the decision of the Supreme Court of Justice declaring invalid the judiciary in GS and what this entails in terms of questioning thousands of rulings issued by it in the past nine years.
The decision to postpone elections fully reset the electoral climate that had emerged, complete with registration, nomination, and challenges before courts, back to square one. A new climate has since emerged, entailing new challenges no less serious than previous ones, led by the implications of the employment of “legal” proceedings for political purposes, exemplified by the merits and justifications of the ruling by the Supreme Court of Justice, which excluded GS from elections based on the claim that the judicial structure there is illegitimate.
This result was not entirely surprising, especially with respect to using judicial instruments to fulfill political functions with a legal cover. Some even have said that the surprise was the Palestinian government’s decision to hold elections to begin with. To many, this was an attempt to renew the legitimacy of the Palestinian Authority (PA) in the WB, even if that was to be done at the level of local bodies, before it became clear that Hamas’s decision to participate in the elections meant the process in GS would similarly bestow “legitimacy” to Hamas-controlled civil, security, and judicial institutions. This is something that has always been anathema to Fatah, even if it wins some seats in GS.
Interestingly, the calculation of such costs on the part of Fatah was made after rather than prior to the decision to hold local elections, reflecting the state of monopoly over decision-making away from consulting other partners in the homeland, or even consulting the Fatah Central Committee. In these calculations, it was clear that the cost of an official decision to cancel or postpone elections was higher than the cost of defeat for Fatah lists in key local constituencies, especially in the WB. Thus, it was necessary to find other means to suspend elections, even if temporarily, including using the judiciary, despite the fact that the cost of politicizing the judiciary could be ultimately the highest.
The Backdrop of the Elections
From the outset, the decision to hold elections sparked disputes between those for and those against. Regardless of the various justifications for supporting or rejecting elections, the scenario of cancelling or postponing them became more likely as election day approached, reinforcing the view that had warned the local elections could quickly turn from a blessing into a curse for a number of reasons, as follows:
First: The Israeli Factor and External Pressure
The role of the occupation was overlooked despite the fact that the decision to hold elections coincided with the expanding role of the so-called “civil administration” of the Israeli occupation army in enforcing Avigdor Lieberman’s plan, to encourage the establishment of local leaders in the WB. There were concerns that local elections would complement rather than hinder this plan.
Avi Issacharoff, Palestinian affairs analyst at Israel’s Walla news site, had reported that the coordinator of Israeli occupation activities in the WB Major General Yoav Mordechai warned the PA leadership that going to the elections could be a dangerous bet. For his part, on 7/8/2016, military affairs commentator in Haaretz newspaper Amos Harel said that senior Israelis had warned their PA counterparts that they were “too complacent” regarding winning in the elections, and that “Hamas is capable of using the elections to increase its political influence in the West Bank and even further undermine the standing of the PA and its aging leader.”
In light of these concerns, Israeli media said the Israeli authorities developed a plan to address Palestinian local elections, without disclosing details. However, Alex Fishman, military commentator for Yedioth Ahronoth, said the central issue in the corridors of the army staff, the Ministry of Defense, and the national security council in Israel was whether Israel should intervene or seek to cancel or postpone the elections (Palestine Today, 30/8/2016).
In all cases, there were enough indications that the occupation was seeking to influence the course of the election, and to intervene to undercut the freedom to run and vote, both being key conditions for fair and free elections. Indeed, Israel arrested many campaigners and candidates in the WB, while others received threats from Israeli officers asking them to withdraw or face arrest.
In addition to the Israeli factor, there were reports in the media indicating pressure being brought to bear by Arab and Western governments to cancel or postpone the local elections. Member of Parliament Hasan Khreisheh stated that the decision to freeze elections (by the Supreme Court of Justice) was the result of external and internal pressures on President ‘Abbas, after many foreign entities expressed concern regarding a repeat of the 2006 scenario (Al-Quds News Network, 8/9/2016).
Second: The Internal Division
Despite the warnings regarding the impact of the Israeli factor on the freedom and integrity of the electoral process, it was not the crucial factor that led to the suspension of elections, and then the decision by the Supreme Court of Justice on October 3 to hold elections in the WB but suspend them in GS until a decision issued by the government on the matter, due to the “illegitimacy of the courts in the Strip.” Indeed, the competition between Fatah and Hamas over the bid to repair the “legitimacy” of the institutions controlled by the two factions in the WB and Hamas respectively, overshadowed other factors impacting the climate surrounding the elections.
Some estimates indicated that Hamas, by agreeing to holding and participating in elections, would have been the biggest winner in the race to restore its “legitimacy,” even if it did not win by a landslide. If elections were to be held, Hamas could have snatched an unprecedented admission from the PA in Ramallah of the legitimacy of judicial, civil and security institutions in GS by accepting Hamas oversight over the electoral process there, following years of division during which Ramallah characterized these institutions as a “coup” against the “legitimate authority.” Hamas could have also snatched a recognition of the legitimacy of its political activity in the WB, despite numerous violations against Hamas-affiliated activists and candidates.
Viewing the function of elections as part of the completion to restore the “legitimacy” of the institutions exiting under the state of division, rather than an “experiment” to rebuild the legitimacy of the Palestinian polity on the basis of a joint political program and unified national institutions, played a key role in fueling the conflict over “legitimacy” by the two parties to the division. This led the security forces of each side, in the WB and GS, to perpetrate many violations as the two sides exchanged accusations of orchestrating crackdowns, assaults, and intimidation before and after the formation of electoral lists.
Third: Disputes Within Fatah
Contrary to the belief that Fatah’s branch in GS was unready to contend in the local elections with unified lists because of the internal disputes with the faction of the expelled Central Committee member Mohammad Dahlan, Fatah managed to secure consensus over forming unified lists in GS, surprising many including Hamas, which had bet on disunity in Fatah as a factor conducive to its victory in most municipalities in GS.
On the other hand, Fatah was not able to form unified lists in a number of locales in the WB itself. The leadership of the movement threatened to take firm action against those who run outside the official Fatah lists, leading to the expulsion of three cadres from Fatah under presidential decree: former Mayor of Jericho Major General Hasan Saleh; Minister of Local Government Khalid al-Qawasmeh; and Deputy Mayor of Hebron Joudy Abu Asnina.
It appeared as though there was an internal reconciliation within Fatah, at least on the part of Dahlan’s faction. Dahlan was aware of an Arab plan for an internal reconciliation in Fatah, believing President Mahmud ‘Abbas has no choice but to accept it. Soon, however, the internal reconciliation turned into a dispute sharper than before, as reports revealed the plan of the Arab Quartet (Egypt, Jordan, Saudi Arabia, and the United Arab Emirates) in September, detailing a roadmap for Fatah reconciliation where Dahlan would be reinstated as member of Central Committee and other expelled Fatah and Palestinian Authority officials would be reinstated in their previous positions.
Statements by Mahmud ‘Abbas on September the third, regarding Arab capitals he said were meddling in internal Palestinian affairs, and statements by other Fatah officials, expressed categorical rejection of Dahlan’s return in accordance with the “Arab Quartet” plan, even if the price is a short-term souring in relations with some Arab nations. This coincided with reports of Arab pressures to postpone local elections until after the first phase of the Fatah reconciliation plan is implemented.
Perhaps the president’s bid to foil this Arab plan can explain his alternative measures beginning with convening a Fatah general conference before the end of the year, electing a new Central Committee that would once and for all preclude the return of Dahlan to its membership, and preparing to convene the Palestinian National Council. These would be in parallel with the resumption of Qatari-sponsored reconciliation talks to reach a breakthrough that would allow the formation of a national unity government and holding presidential and legislative elections within six months, or immediately in the event no consensus could be reached to form the government. If this pans out, President ‘Abbas would have turned the table against the Arab plan.
Fourth: The Politicization of the Judiciary
The decision to hold the local elections and the repercussions that followed revealed the extent of the impact of political and institutional division on the judiciary in the WB and GS, and the disastrous risks of using court rulings for political goals, not to mention the criticisms made against the role of the bar association in this context.
The agreement between the central electoral commission and Hamas regarding the processing of challenges by the judiciary and courts of first instance in GS came under criticism from political and legal circles close to Fatah, who saw that it conferred legitimacy on “illegal” courts. This prompted Fatah to reject rulings by courts in GS regarding challenges brought to their attentions, and to encourage Fatah-affiliated lawyers to resort to the Supreme Court of Justice, who challenged the legitimacy of Hamas-run courts in GS, requesting the cancellation of the elections.
On the other hand, a large number of challenges were filed against Fatah lists in GS, leading nine to be disqualified. The move was considered by Fatah spokesman in GS Fayez Abu ‘Aita “a massacre by Hamas courts against Fatah lists” (Ma‘an News Agency, 8/9/2016).
Regarding the bar association’s position upon which the challenge filed before the Supreme Court of Justice was based, the council of Palestinian Human Rights Organizations rebutted the association’s call for postponing the elections based on the proceedings mentioned in its statement published on August 24, namely the “legal vacuum” in GS, in relation to oversight over the elections and their results; and the exclusion of Jerusalem from elections and Jerusalemites from participating in the electoral process. Furthermore, the statement was issued more than two months after the decision of the government on 21 June to hold local elections, and did not explain why the bar association had remained silent all that time before asking for the postponement of the elections in the heat of preparations on August 25.
Several rights groups wrote to President ‘Abbas stressing the “need to maintain the independence of the judiciary, and keep it away from any political bickering or influences”. The rights groups called for holding the local elections and resolving any snags hindering them (Ma‘an News Agency, 20/9/2016).
Some observers and legal experts believe the politicization of the judiciary and using it to postpone elections, even on the basis of delegitimizing the courts in GS, is one of the most dangerous repercussions of the internal division, given its impact on the unity of the social fabric in GS. Indeed, delegitimizing the rulings of the courts, which is the essence of the decision of the Supreme Court of Justice, means questioning the legal validity of the results of these rulings, paving the way for those affected to challenge them later. This involves thousands of cases related to people’s lives and interests, beginning with disputes over ownership and not ending with marriage and divorce contracts.
Furthermore, the future repercussions of the court’s decision will cast a shadow on the prospects of consenting to Fatah’s proposal to go immediately towards presidential and legislative elections in the event no agreement is reached on forming a national unity government, as long as civil and security institutions remain divided. This is the case even if the issue of the courts is addressed for example by establishing a special electoral court. The possibility of challenging the legality of oversight over the general elections by GS institutions and agencies could become an intractable problem in light of the decision by the Supreme Court of Justice, which sets a dangerous “legal” precedent.
What Will Happen Now?
Resorting to the Supreme Court of Justice to advance narrow factional interests is like running up a tree: it opens the door wide to serious risks, led by the risk of turning division in the institution into full separation. This requires studying the scenarios related to the fate of the local elections with a high degree of national responsibility, and then working to fulfill the scenario that best serves the interests of the Palestinian people with a view to end the state of division.
Although several developments could take place and influence the attempt to predict what will happen with the local elections in four months, analyzing relevant factors allows us to forecast four main scenarios as follows:
First Scenario: Holding Elections in WB and GS
This scenario is in line with the government’s decision to hold local elections in all of the Palestinian territories on the same day, “out of our belief in the unity of the homeland, the unity of the people, and our keenness to restore unity and end the division, and unify the institutions of the homeland in the framework of legitimacy and the law.” (Ma‘an, 4/10/2016). However, turning this belief and keenness into reality does not seem possible without securing certain conditions, through consensus between Fatah and Hamas, and other factions. This is difficult in light of the arguments of the decision of the Supreme Court, rejected by Hamas.
Several compromises had been discussed prior to this ruling, including withdrawing the case from the Supreme Court of Justice, and agreeing to a new date while some lists are withdrawn from some areas by both sides. Hamas spokesman Sami Abu Zuhri had stated his group rejected an offer from Fatah, sent through meditators, whereby Hamas forfeits Khan Yunis in return for Fatah forfeiting Tulkarem, whereupon elections would be heled one month after the original date, on October 8. Abu Zuhri said this was evidence of the politicization behind the decision to suspend elections (Palestine Today, 25/9/2016).
Some proposed another compromise, to agree on a date to hold elections while postponing them in Khan Yunis, where the most challenges were filed against Fatah lists, provided that all procedures for holding elections in Khan Yunis are repeated including the formation and registration of lists.
Another compromise proposed was to agree to cancel elections entirely, and then issue a new decision to hold them, including a repetition of all measures, beginning with registration of voters and lists, objections, and voting itself, with the possibility of amending the law by agreement to form a special electoral court.
Although the scenario of holding local elections in the WB and GS is preferable, it does not seem to be the most likely one so far. Preparing for elections within four months now requires adhering to the provisions of the ruling of the Supreme Court of Justice, especially in terms of “securing the legal environment for holding elections,” as state in the text of the government’s decision to postpone elections. This means finding a compromise that does not confer legitimacy upon the GS courts, meaning establishing a special electoral court to address challenges after introducing amendments to the electoral law governing local elections, which requires challenges to be filed with the courts of first instance in the districts.
Perhaps the leadership of Hamas could have studied approving all this before the decision of the Supreme Court of Justice. However, it will be difficult if not impossible to do this now after the ruling, because it would mean implicitly agreeing to the context pretexted by the ruling, namely the delegitimization of the judiciary and courts in GS.
Even if we assume Hamas could agree to such a sacrifice, there are no guarantees that the Supreme Court of Justice could be used again later to challenge the legitimacy of the oversight by civil and security institutions in GS over local elections let alone general elections should these take place later.
For this reason, holding local elections in both GS and the WB remains contingent upon compliance with the call made by national and Islamist forces at the end of their meeting in GS following the decision to postpone elections “to launch a serious Palestinian national dialogue leading to completing reconciliation, restoring national unity, and addressing the crisis of the entire Palestinian political system.” That is, a national consensus on a roadmap to end the division, full with the formation of a national government able to reunite civil, security, and judicial institutions to find ways out of the problems that have been impeding the holding of elections.
This is a likely scenario in the event the presidency and the government amend the local electoral law without national consensus, sparking criticism from factions and rights and civil organizations, leading to expanded boycott of elections, in addition to Hamas’s rejection of postponing the elections. Hamas has insisted on completing the elections where they were left off, as Abu Zuhri stated, saying postponing them was an evasive move to serve Fatah’s factional interests, while stressing his rejection of anything that questions the legitimacy of the institutions in GS (Sama news agency, 4/10/2016).
This would be the worst case scenario in light of its repercussions on the odds for ending the division, and on the legal status of the judiciary in GS. The failure to hold elections in GS because of Hamas’s boycott and the possibility of a snowballing boycott by key factions and organizations, could lead to the postponement of elections without a specific date set, meaning practically cancelling them.
Other factors may reinforce this scenario, especially the threat of an “intentional” sliding into chaos and unrest in the WB. Israel may push in this direction, or others that do not want the elections to be held. Some press reports warned against the possibility of Israeli intervention increasing in order to instigate a state of “controlled” chaos on the eve of local elections, by encouraging chaos and infighting especially in towns and villages in Areas B and C (Palestine Today, 30/8/2016).
The chaos could then evolve as a result of sharp conflict over power in the WB, with weapons widespread among clans in many areas. What further reinforces fears of this threat are the clashes that erupt from time to time between the security forces and wanted militants in Nablus and elsewhere, not to mention the risk of internal strife within Fatah on the back of exacerbating differences with Dahlan’s faction and the difficulty of forming unified Fatah lists in the future. Particularly so when local elections would be held in accordance with the government’s decision after Fatah’s 7th conference, which is being readied to convene before the end of the year to banish Dahlan and his supporters, risking further conflict over power especially in the WB.
Some voices are calling for holding the elections in the WB only, especially since this was the goal of the decision to hold the elections in light of the bet on Hamas rejecting them in GS. The proponents of this view believe the decision of the Supreme Court of Justice allows holding elections in the WB while postponing them in Jerusalem, or even dividing the elections into phases as before, allowing elections to be held first in areas where Fatah can guarantee victory and posting them elsewhere until conditions ripen for Fatah victories there too.
This scenario appears likely for the following reasons:
– Hamas’s categorical rejection of the ruling of the Supreme Court of Justice and the difficulty of it accepting to take part in elections based on questioning the legitimacy of institutions in GS. This means holding elections in GS is next to impossible.
– The lack of any signs of a breakthrough in the reconciliation in the coming four months that would allow the formation of a national unity government to oversee elections, or allow an agreement to head immediately to presidential and legislative elections. Particularly so when Fatah’s priorities seem to focus now on convening its general conference and settling the differences with Dahlan, while Hamas is preoccupied with internal elections and the succession of its politburo chief Khalid Mish‘al.
– The lack of guarantees that would prevent the re-use of the judiciary when needed to exclude opponents and rivals, keeping the threat of politicizing the judiciary looming over any election, even if Hamas backtracks and accepts elections in GS.
– The need to renew the eroding legitimacy of the Palestinian Authority (PA) in the WB, even if at the level of local councils, and Fatah’s need to show it has popularity through elections where it has no serious rivals in the WB. This need is expected to deepen if a general conference is successfully convened to settle internal differences and head off any attempt by the Arab Quartet to intervene.
– The possibility of Fatah’s internal differences to worsen, especially in GS, where Dahlan’s faction has enough weight to threaten Fatah’s official lists if formed. This encourage the bid to hold elections in the WB only.
This scenario, if it becomes more and more likely as the factors above gain momentum, could upend hopes for elections to act as a step towards ending division and holding presidential and legislative elections. This could also turn the division into an institutional separation.
Conclusions and Recommendations
The repercussions of the decision to hold local elections, and then the use of the judiciary to postpone them and cancel previous arrangements, underscore the importance of understanding the function of elections in the Palestinian environment and conditions in terms of the impossibility of having free and fair elections of any kind under the Israeli occupation. Israel might allow such elections to be held if it can guarantee that their results will serve its interests and goals. Furthermore, the internal division cannot secure a climate of freedom and integrity for any electoral process until the reunification of civil and security institutions of the PA in the WB and GS on the basis of a unified political program and leadership. In this course, the following conclusions and recommendations may be recorded:
– With regard to local elections, it is not possible to separate their national and technical functions, especially when Israel’s reaction was either to intervene to cancel them or to manipulate their results to further the Lieberman Plan. This requires revisiting the context of the local elections in 1976, which were a milestone in the national struggle to foil the Israel’s scheme to impose local councils similar to the collaborationist village leagues, despite the fact that the winners in the National Movement paid a heavy price with some even suffering assassination attempts. This battle coincided with a similar national mobilization at the same time in the territories occupied in 1948, most notably during Land Day on 30/3/1976. If it is not possible to hold the elections on a basis that replicates the context of 1976, then the context of the second half of the 1980s must be re-visited in dealing with municipalities based on appointment. In addition to benefiting from the lessons of that experience led by the need to make appointments on the basis of national consensus in the absence of the ability to hold fair and free elections.
– Neither local nor general elections are an entryway to ending the division, and may instead deepen or perpetuate it, unless consensus is reached over a comprehensive national vision and corresponding mechanisms to restore national unity, rather than merely achieving reconciliation between Fatah and Hamas in the narrow sense. Agreeing to a joint political program would be the cornerstone of any such process, in order to reinvigorate the national liberation framework of the Palestinian people’s struggle. And in order for local elections not to become a risk rather than an opportunity, they should be a milestone in the service of rebuilding unified national institutions at the level of the PLO and the PA.
– The preferable scenario even if it is unlikely is to hold local elections in both the WB and GS. This remains possible in the event consensus is reached on overcoming the obstacles that emerged in the past period. Efforts must focus on turning this scenario into an option through which the Palestinian people, its political forces, and civil organizations can prove practically that consensus is possible if not necessary, if there is a political will for it. This would pave the way for replicating this model of consensus on other issues related to the division, including unifying the judiciaries and public prosecutor offices.
– The politicization of the judiciary may be one of the most serious repercussions of the division. Using judicial rulings for factional political goals paves the way to risks that threaten societal fabric, especially if delegitimization is sought for the judiciary and its rulings, undermining the legal status of verdicts in the GS. Resolving political differences must take place through dialogue on the basis of unity, not manipulation of the judiciary to serve the political conflict. Resorting to security forces to pressure candidates and campaigners in the electoral process in the WB and GS, meanwhile, only deepens the mistrust in their ability to protect all the phases of the electoral process.
* Al-Zaytouna Centre thanks Mr. Khalil Shaheen, for authoring this text upon which this strategic assessment was based. Mr. Shaheen is the program director at the Palestinian Center for Policy Research and Strategic Studies (MASARAT).