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The constitutional law expert Prof. Dr. Ahmad Mubarak al-Khalidi, the former dean of the College of Law at An-Najah National University, warns that in case the elections of the Palestinian Legislative Council (PLC) are based on some agreements reached by some factions and a number of presidential decree-laws and decisions, that would contradict the Basic Law. He calls for resolving these conflicts before going to the elections, so that their legitimacy won’t be challenged.

Al-Khalidi, who was the Minister of Justice during the tenth Palestinian Authority government and the head of the drafting committee of the Palestinian Constitution, wonders whether it is permissible to agree on holding elections outside the scope of the Basic Law under the pretext of consensus. He warns that if a particular party did not like the election results, it has the right to file a lawsuit in the Constitutional Court, which has the appellate jurisdiction and the power to rule that the elections were unconstitutional, which would cancel their results and implications.

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>>A Legal and Political Opinion on Holding ElectionsUnder Current Conditions … Prof. Dr. Ahmad Mubarak al-Khalidi (12 pages, 3.5 MB)

The advisory opinion of al-Khalidi, published by al-Zaytouna Centre for Studies and Consultations, warns that the 2005 Amendments to the Basic Law contradicts the Article one of the 2007 presidential decree. For the Basic Law stipulates the right of Palestinians to run as candidates, individually and in groups, while the presidential decree stipulates that candidacy should be based on electoral lists only. Moreover, the Basic Law stipulates that the Palestinian electoral law shall be based on the mixed electoral system evenly (50%-50%) between the relative majority (multiple constituencies) and proportional representation (list system); while the factional consensus agreed on that the elections would be held according to 100% full proportions, which is against the law.

Furthermore, the 2007 presidential decree stipulated that the candidates for the PLC membership and the position of the president must “uphold the PLO [Palestine Liberation Organization] as the sole legitimate representative of the Palestinian people and the Declaration of Independence Document in addition to the provisions of the Basic Law.” This means that they must commit to the PLO commitments, including the Oslo Accords and their requirements.

Al-Khalidi points out to the problems related to the right of the head of the Palestinian Authority (PA) to choose the prime minister from the winning list or from other lists. Another problem is that the presidential decree pertaining the general elections includes the PA and its powers, and does not include the Palestinian National Council (PNC), which represents the Palestinians outside and inside Palestine and that must be formed through other PLO arrangements rather than in the same decree of the legislative and presidential elections. Al-Khalidi points out that the wrong solution for the PLC led to a number of problems, and that were this council to remain fulfilling its responsibilities, it might have overcome these problems.

The paper of al-Khalidi also addresses several other problems, including; the constitutional and democratic framework of the PA’s practices, the priority of agreeing on the national, legal and practical bases of the elections, the adjudication in electoral appeals in Gaza Strip (GS), international guarantees to protect the elections and their results, the candidacy in a way that overcomes the Israeli restrictions on the elections and their results, the seriousness of the PNC elections and the restructuring of the PLO, the practical difficulties of holding elections inside Palestine and the PNC elections, especially during the COVID-19 pandamic, and the seriousness of holding the PNC elections when there is a lack of data on the lists of Palestinians eligible to vote abroad.

Al-Khalidi calls for taking the necessary legal and practical measures to correct what resulted from the fundamental violations of the Basic Law; a reconciliation based on a single strategy for the Palestinian national project; unifying the Palestinian constitutional institutions, where all Palestinian forces would actually participate in the PA on the bases of constitutionally and democratically legitimate laws; defining the supreme national goals and the methods of struggle to achieve them. Al-Khalidi also stresses the priority of consensus on a national program in order to face internal entitlements, put the Palestinian political house in order, and face the Zionist, regional and international challenges.

Click here to download:

>>A Legal and Political Opinion on Holding ElectionsUnder Current Conditions … Prof. Dr. Ahmad Mubarak al-Khalidi (12 pages, 3.5 MB)

Al-Zaytouna Centre for Studies and Consultations, 19/1/2021

The opinions expressed in all the publications and studies are those of the authors and do not necessarily reflect the views of al-Zaytouna Centre.

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