Date : 22 Jun 2021
General elections and the legal and political guarantees for their conduct
By/ Lawyer Salah Abd el-Atti
Researcher and human rights activist
Chairman of the International Commission to Support Palestinians’ Rights (ICSPR)
The head of the political bureau of Hamas Ismail Haniyeh informed President Abu Mazen of his acceptance of successive elections instead of synchronization despite its contradiction with the Palestinian laws that stipulate the synchronization of elections, in order to form an opportunity to restore constitutional life, through the holding of general elections that include legislative Presidential and Palestinian National Council elections, which, if the legal and political requirements are met, will be considered a central step in restoring the health and unity of the political system.
Despite the deep awareness that the requirement of succession in elections is not without political cunning and does not deviate from the context of the policy of distraction used throughout the period of division, and in all cases, since presidential decrees have been issued to hold general elections, this path must be fortified to guarantee its success, given that elections are a constitutional entitlement, a natural and legal right, in addition to being the democratic and legal means for renewing legitimacy and unifying governmental institutions in both parts, and building a democratic political system away from quotas.
With the issuance of the presidential decree, the debate in the Palestinian arena over the elections will be repeated again in a way that may reflect the current state of political division, which will be welcomed by various political parties, other parties express their reservations and fears, others refuse the conduct of elections before ending the division and agreeing on a national program that goes beyond Oslo, and others accept to participate in the elections for the National Assembly and refuse to participate in the elections for the Legislative Council.
The opportunity to hold elections must be made an important entry point for consensus on the rules of national action and partnership between the components of the Palestinian society as a whole and one people, in addition to affirming the unity of the common Palestinian national position in facing national challenges, and an opportunity to overcome the state of the collapse of institutions and the absence of their role and to achieve the separation of executive, legislative and judicial powers, and consolidate Political pluralism and the protection of human rights in addition to the creation of elected bodies that manage the affairs of the people and secure the requirements of daily and service life for them, especially in light of the collapse and decline of the role of all Palestinian institutions.
Although it is expected that the Israeli occupation will place many obstacles to disrupt them, in Jerusalem and the West Bank (threatening candidates or arresting parliamentarians), and other measures that may hinder the electoral process, or allow it to take place if it ensures that the elections will consecrate the authority abide by Oslo agreement and contribute to the continuation of the division, and this confirms that the elections are not isolated from the escalation of the clash with the occupation, nor from the ending of the division. The election path is not paved as some suppose, in addition to that, the dialogue on the basis of partnership and other issues will start after the issuance of the decrees, and the possibility of agreeing on them is less than disagreeing.
We are aware that the embodiment of the Palestinian state and the protection of Palestinian rights is not within reach, and it requires a long and arduous struggle, begins with ending the division and holding free and democratic elections, even if it requires work to unify institutions as an entry point for elections, so that the elections do not enhance de facto reality or reproduce it in any way.
In view of the failure of previous dialogues and the failure to implement reconciliation agreements, and due to everyone’s desire to change this tragic reality through elections, but crossing the gate for reconciliation requires the provision of a set of necessary legal and political guarantees, to ensure that we are facing free and fair elections that establish a new Palestinian phase, or at least to represent an entrance to transcend the division to a reality of reconciliation and partnership.
Perhaps what has been referred to previously, confirms that holding elections requires the availability of guaranteeing fulfilling their unfulfilled conditions. There are requirements and guarantees for conducting fair and democratic Palestinian elections that achieve the desired goal by all the components of the Palestinian people, in order not to repeat the experience of the catastrophic division, which catastrophic effects and repercussions are still in front of us. Therefore, it would have been better for the elections to come after ending the state of division, and preceded by agreement on national programs with specific goals and a struggle strategy that defines the forms of struggle and negotiations, the decision for peace and war, the unification of security and civil institutions, and agreement on the basis of partnership and how to deal with the authority and its obligations, to devote it or to change it, and strive to remove the veto on the participation of Palestinian factions on the European and American terrorism list to ensure their participation in the next government.
In view of the failure of previous dialogues and the failure to implement reconciliation agreements, and given the desire of everyone to change this tragic reality through the approach of holding elections to reach reconciliation, a set of legal and political guarantees must be provided, to ensure free and fair elections that establish a new Palestinian phase, or at least to form an entrance to transcend the division to a reality of reconciliation and partnership. Therefore, the following political and legal requirements must be provided:
First: Political requirements and guarantees:
It is difficult and dangerous to link the future of the political system to the elections only, so if the elections are to be approached as a step to revive the political system from its stumbling, achieve gradual political partnership and end the division, in line with building national institutions to confront the occupation, in light of democratic, national, consensual and representative foundations that involve all Palestinians and all parties, it is necessary to work on the success of the upcoming dialogues between the factions to ensure agreement on:
- Agreeing on a national program and the foundations of the political system, including ensuring that the requirements for the success of the elections process are met, in a way that guarantees the unity of the West Bank and Gaza as a single Palestinian region subject to one authority and government, and consensus on the constants and references of the political system and the national strategy, and the form of the political and legal relationship between the Palestine Liberation Organization and the National Authority, international legitimacy, the Arab peace initiative, and a unified position on resistance and negotiations, especially in light of the restoration of the authority’s relations with the occupation… etc. Without the above, there will be no peaceful and democratic transfer of power, the formation of a government, or the leadership of a national unity. If a national unity government is established without agreement on the above, it will not last for long, as was the case with the unity government that was formed after the reconciliation of “Mecca”.
- The necessity of settling political options and answering the question of which elections we want:
Do we want elections to be held within the framework of the parliament of a state under occupation, to be established to lay down, develop and approve a constitution for a state and unify the institutions of power within the framework of the state and its institutions so that this option is compatible with the legal developments with the State of Palestine obtaining observer membership in the United Nations? Or will legislative elections be held for the authority, with the transformation of its function to become a service authority, with the completion of the procedures for transferring its political position to PLO after agreeing to develop it, reunify and activate its role, so that the Oslo era that ended is not reproduced? Or will formal elections be passed that perpetuate and rededicate the Oslo Accords and contain the forces of resistance, while perpetuating the division, continuing the state of waiting and being unable to confront the Israeli occupation? Perhaps what indicates the foregoing is the agreement to advance legislative elections without specifying whether they are for a legislative council for the self-rule authority or for the Palestinian state.
- Elections government:
The necessity for a national consensus to form a national government that imposes the rule of law, consolidate freedoms, and provide the appropriate and necessary atmosphere prior to holding democratic elections, taking into account its endeavor towards unifying the institutions of the Palestinian Authority in the West Bank and Gaza, and preparing well for legislative and presidential elections and National Council elections, neutralizing the work of the security services, and addressing any emergency, internal or external obstacles that hinder their conduct, which will give a real and serious impression about the sincerity of the calls for elections and reconciliation, especially after the countless setbacks during the previous years.
- Commitment to elections and their results:
Everyone must be convinced that the only legitimacy is the legitimacy of the election boxes, while ensuring that the legislative and presidential elections and the elections for the new National Council are adhered to in the form agreed upon, to ensure avoiding all obstacles.
With the importance of realizing that no single party, regardless of the votes it will receive in the elections or its history of struggle and international recognition, can assume responsibility for the national cause or exclude others if they want to share this responsibility.
Commitment to the results of the elections and enabling the elected voters to carry out their work without interference from the existing authority, whether in the Palestinian West Bank or in the Gaza Strip, and by signing an honor document that guarantees respect for the electoral process and commitment to its results. The elections will not solve the crisis if the results are not respected, and perhaps one of the most important guarantees for respecting the results is the commitment to form a unity government regardless of results.
- Confronting the obstacles of the occupation and fortifying deputies:
That the elections be held in the Gaza Strip and the West Bank, especially Jerusalem, even if Israel tries to prevent them from taking place in Jerusalem, and to turn the elections into a popular struggle of resistance that challenges Israeli procedures and elections take place in Jerusalem despite the occupation’s intent, in addition to the need for the electoral law to include a formula for nominating and voting for prisoners in Israeli prisons, especially the imprisoned parliamentarians, by agreeing on mechanisms to limit the occupation’s interference in the work of the upcoming Legislative Council through the detention policy of MPs.
It is important to move with all concerned international parties, especially Egypt, Europe and Russia, in addition to their role in monitoring elections, to exert pressure on the occupation to ensure that elections are held in Jerusalem, and to enable elected persons, especially in the West Bank and Jerusalem, to do their work and not arrest them or impede their work. It is important to prevent and reduce foreign interference and the endeavor of some Arab, regional and international parties to influence the electoral process in a way that enhances their agenda.
- Political parties and elections:
Elections are considered an opportunity to revitalize, strengthen and reactivate political parties and currents at the internal level in their relationship with citizens, so that elections and participation in them are not an attempt to cover up the failure and part of the policy of distraction and escape from the main challenges, which is facing the occupation, this is in case that the obstacle and the trap of the Joint List is overcome or that President Abbas is a consensual candidate, because it leads to a closer election to the Senate than exercising their right to run and be elected. The elections provide an opportunity for all components of the national movement and sectors of society to move beyond the previous era, it is an opportunity for the Fatah movement to unite and overcome its differences regarding the succession of the president and the way to manage public affairs, and it is also an opportunity for Fatah currents in case of disagreement to form a single list or in partnership with other parties, forces and personalities.
And an opportunity for Hamas to reconsider its popularity and to strengthen its presence in the political system as a national movement and an opportunity for it to evaluate the experience of combining power and resistance, form a list dominated by national figures, or to enhance the presence of its technocratic employees in its government and its members, who enjoy some independence from the movement to run the elections to ensure that the veto over its participation and to bypass the siege of the next government. And an opportunity for left-wing factions to form joint lists instead of continuing in a state of fragmentation, and an opportunity for Islamic Jihad to support the lists it deems more credible.
It is an opportunity for new currents, sectoral lists, and societal and political blocs to emerge to run in the elections, and perhaps it is an irreplaceable opportunity to launch a national current that includes all those who wish to confront the state of exclusivity in managing public affairs and establish a solid bloc in the upcoming Legislative and National Council that contributes to changing the politics of the people that brought the Palestinian cause and the institutions of the political system to this form of retreat and crisis.
And an opportunity to reactivate the role of civil society organizations in raising awareness, influencing, advocating for freedoms and human rights, combating corruption, and adopting the demands of the sectors they represent. Perhaps it is useful to point out the importance of nominating moderate and non-provocative leaders from the parties given the state of tension between political leaders due to the divisions in the national movement. The nature of candidates will determine the soundness of the electoral process and the possibility of coexistence of political forces, and determine the electoral programs of the candidate blocs, which must base their programs on the established constants and references without tampering in proposing any goals that contradict the principles that have been agreed upon, in addition to the importance of realizing that the government’s program is the program of the authority and not a political program for the party, as it focuses on defining the government’s work priorities, its political commitments and international obligations, and its work priorities to serve and protect the rights of citizens and enhance their steadfastness.
- The political election environment:
The conduct of the elections requires a political environment to fulfill all the requirements for its integrity and success, by adopting practical goodwill steps that include the immediate abolition of the sanctions imposed on the Gaza Strip, the release of arbitrary and political detainees and the holding of the temporary leadership framework to activate the PLO, and respect for public freedoms, including freedom of opinion and expression, the release of those who are politically related, the cessation of political conflicts and the policies of exclusion and infidelity, and the cessation of any form of summons for political reasons or matters related to party and political affiliation or activity in the West Bank and Gaza Strip, and prevent the security services from interfering in any stage of the stages of the electoral process in ways that have no legal basis, ensuring that any internal or external obstacles are addressed, and respecting the election results and adhering to them, because without the above, the elections will not be conducted, especially since previous experience indicated the absence of the value of political participation, respect for the rule of law, separation of powers, and respect for rights and freedoms.
Second: legal requirements and guarantees
In case a decree is issued setting the dates for holding legislative and presidential elections and the National Council elections, guarantees are required for their success at the political and legal level despite the pressure of time, as the negotiating parties and candidate blocs will have approximately 120 days to agree to overcome all legal obstacles. Therefore, the following guarantees must be provided:
- Basic law:
The Basic Law stipulates that the people are the source of the authorities and that the system of government that they establish is a representative democracy based on political and party pluralism in which all institutions and agencies are subject to the rule of law, in accordance with Article 34 and Article 48 of the amended 2003 Basic Law, the President of the Palestinian National Authority and the members of the Legislative Council are elected by general and direct elections in accordance with the provisions of the Palestinian Election Law, and perhaps the approval of the legislative and presidential elections in succession raises the question of: On which law or basis the elections will take place? Will the general election law that was approved by the Legislative Council in 2005 be amended by a law decision after consensus or will it be consensus on Resolution No. 1 of the President of the Palestinian National Authority to amend it in 2007, which requires a series of amendments according to the national and societal consensus and not by the president’s individual will, as happened in the last amendment of this month, January 2021.
Then, how do you explain the approval of the presidential decree and the amendment in the election law (the election of a legislative council for authority, while the position of the president is the head of state? Without specifying on which constitution, especially that the Basic Law is a law of authority and not a state, nor has it been specified whether the president will be elected by all Palestinians as long as he is president.
In order for the constitutionality of the electoral law not to be challenged, this matter requires a consensus to amend the Basic Law from all the national and community elites without exception, or to call Legislative Council for one session to approve amendments to the Basic Law and any arrangements required by the next stage of elections, in order to ensure the legitimacy of unconstitutional decisions, in connection with the rule that it is not permissible to agree to violate laws, especially the constitution, and it is not permissible to agree to freeze and suspend the Basic Law on the grounds of necessities of the national interest or other justifications.
In addition to emphasizing the need to amend the Basic Law so that we do not return to the conflict of competing powers in the Basic Law resulting from the not preparing the environment of the political system, as the law since the creation of the position of Prime Minister has become a mixed system instead of the presidential system, and therefore, its provisions need amendments to ensure that the shortage and conflict regarding the powers between the presidency, the government and the rest of the authorities are avoided. All of the above applies to the re-election of the authority, and what if the dialogue decides to agree to elect a parliament of a state, what if the people decide to make the political system parliamentary or presidential? And other texts that will be drawn up by experts and ratified by the people, which in turn proposes the approval of a constitution and a new contract by the Palestinian people in a democratic way, either through a popular referendum or by the way of the Constituent Assembly, that is, leaving this task to the elected parliament, as happened in the Tunisian experience, and what about neutralizing the Constitutional Court because it came without consensus, through amending the law guarantee that the president can control it?
From the foregoing and other texts on which the conflict took place previously, which led us to the president ruling without elections for 16 years and to continue talking about the legitimacy of the parliament for 15 years, and the disagreement over calling sessions for the Legislative Council from the president, which led to the disruption of its work and later its dissolution without relying on the law. The mixed system gives the president the right to call for a binding popular referendum and the right to call early elections and define the president’s powers in everything related to foreign affairs, and gives the government the right to manage internal affairs and provides for consensus and participation among the various authorities, and overrides conflict of texts regarding succession rather than concurrency, and other texts require harmony with the Basic Law, which in turn requires agreement before elections take place on a national and legal establishment to approve the required amendments and to be approved in the first session of the next Legislative Council, also forming a legal committee to study all the legislation issued during the period of division, provided that it submits to the Council a summary of its recommendations to ensure the unification of the legislation in force in the territories of the Authority in line with two criteria, the first being taking into account the legal centers that have emerged as much as possible, and second, respecting the Basic Law and international human rights standards. All of the above requires that the Palestinian parties agree on how to get out of the conflicts and the legal and political crisis with the participation of all Palestinian parties, to provide a legal and political foundation through a semi-constitutional document that provides all guarantees for the success of the elections.
- Election law
Elections in all their stages must be governed by a law that organizes them. The law is the determining factor for the standards for conducting elections, which requires the need to review all legal texts regulating the electoral process, on the basis of ensuring the existence of a consensual electoral law that comes in the context of a societal dialogue that preserves democratic life and works to consecrate the principle of pluralism and prevent exclusion, which requires the participation of all parties, civil society institutions, and youth in the dialogue around it to ensure that any problems that may hinder the right of a natural citizen to freely and honestly choose his representative away from any pressures or excesses, in addition to agreeing on whether we want elections for an authority under the roof of Oslo, or a parliament for a state even under the occupation. The fact that preceding legislative elections without stipulating that they are state elections means the continuation of the commitment to the status of the authority of self-government, which contradicts previous statements of the leadership to conduct elections for the state council or parliament to liberate us from the Oslo approach and authority and move to the state stage, only what has been amended in the law in this regard provides for the election of a head of state without even specifying the term of the presidency in the law. Someone might say that the Basic Law limited the term to four years, but the Basic Law as we had previously mentioned needs to be amended to adapt to the variables to provide for the state and the presidency of the state, in addition to providing more texts that guarantee commitment to the electoral periods.
Although there is consensus on the system of comprehensive proportional representation and some claims, no agreement has been reached on which law the elections will be based on, the law by decision on presidential elections and the Legislative Council of the National Authority No. (1) of 2007 and its amendments, or the amendment of the election law approved by the Legislative Council of 2005. It seems that the president decided the matter in the election decree that the Decree Law No. (1) of 2007 is the law on which the elections will take place, despite the presence of amendments by the President in approving the election of a head of state instead of the authority, even if this requires an amendment in the Basic Law and other amendments to the election law. The law emphasized that elections should be conducted according to a comprehensive proportional representation system, considering the Palestinian territories as one electoral district, and whoever wishes to run for elections must be presented on an electoral list with no less than 16 candidates, thus providing a real guarantee for political pluralism and prevents exclusivity as much as possible in managing public affairs. However, this system must add clear texts that prevent further controversy, whether in the nature of the dealings by the Election Commission with candidates’ lists, and does dropping some of the candidates mean dropping the list, the conditions for candidacy, the distribution of votes and seats, the exit of a member from the list to another list after the election and other questions.
What requires completing the amendments to the law, and what about the decree by law amending some provisions of the election law and talking about the president without specifying his term for office, and what about the decree and amendment in electing a head of state? And why did the decree not specify the election of a state parliament? In this case, the election law must be renamed and appropriate to be the election law for the state of Palestine under occupation.
As for the texts to be tampered with, in the favor of the president, this means fortifying the presidency and the continuation of the disagreement and controversy over the nature of the political system we want, and the nature of the political institution closest to the aspirations of the Palestinians, the nature of legal and political complications, and does the election of a head of state mean bypassing the determinants of Oslo, and holding legislative council elections means adhering to authority and the Oslo Accords? Is this political tactic acceptable to the popular factions and sectors, or will the political system enter the state of the dictatorial individual regime?
An agreement must also be made and the law amended to respond to national and societal demands related to the election court and the closed list system in order to prevent the judgments from the Elections Commission and political forces to ensure that all factions, independent parties and components have opportunities to run for elections with their own lists, without exclusion, in light of the existence of success opportunities in front of them commensurate with the size of the support they enjoy at the electoral base, and the aim of this is to prevent repeating the experience of the previous elections of 2006, and to strengthen the national partnership, which required addressing all concerns and providing all legal guarantees in the amended law and to ensure that unconstitutional amendments are made in the law.
The new law added additional conditions for candidacy that did not exist in any of the previous election laws, and that the decree amended some and kept others, which could be interpreted as imposing restrictions on candidates and lists that do not comply with the law, and the law also stipulated that members of the Legislative Council who wish to run for presidential elections may resign from their position as members in elected councils, even though a member of the Legislative Council is not an official employee of the government, but rather an elected member and wishes to compete for another elected position. On the other hand, the law does not contain a clear text prohibiting the electoral list from running more than one candidate for the presidency. (It is supposed to be stipulated in Article 39), and the law did not clarify the mechanism for registering independent candidates who might want to run in the presidential elections or run in legislative elections on a list.
Among the new provisions added by the law is that, in case that a candidate withdraws from the list, all remaining candidates must agree to the new arrangement, while if the withdrawing candidate is replaced by a new candidate in the same position and does not affect the order of the remaining candidates, their signature is not required. The law did not clarify the procedures to be taken in case of a vacancy in a council member on a list that has no more members (Article 107).
- About qualifying threshold and the participation of women and youth
The amended law specified the threshold as (2%) and the amendment came unilaterally from the president to amend the percentage to (1.5%). Perhaps the claims from the majority demand that the threshold be (1%). For your information, the qualifying threshold differs from one society to another, and in the Palestinian case the threshold must take into account the nature of the stage in which we are living, as it is considered a stage of national liberation and democracy, and political parties (large and small) play a decisive role in achieving this stage, and the quantitative structure of the parties, based on the results of local elections, indicates the existence of two major parties, and other parties whose percentage range from (10%) to (3%), while many other parties have a lower percentage than that, the intention to build a political system based on political pluralism and open the way for small parties, required reducing the threshold to (1%).
And that the amendments deal with expanding the percentage of women’s participation in compliance with the Palestinian Central Council’s decision, which stipulated that women should be represented by at least (30%), and that the amendments include ensuring the expansion of youth participation by reducing the nomination age to 18 years, similar to all electoral systems in most countries of the world, to enhance youth participation with a representation of also (30%).
- About the electoral court and appeals
The election law stipulated the formation of an election court consisting of a president and eight judges, upon the recommendation of the Supreme Judicial Council, and perhaps this text was the subject of discussion in Cairo, where the Cairo Reconciliation Agreement agreed that consensus should be reached on its formation and the selection of judges who enjoy integrity, transparency and independence.
Especially in light of the absence of the unity of the judiciary and the lack of guarantees of its independence in the Gaza Strip and the West Bank, which requires the formation of an election court of independent judges, in addition to ensuring that there are two headquarters for the court, one in Gaza and one in the West Bank, whose decisions must be immunized from appeals, in order to enable it to follow up the cases and appeals brought before it in an independent and impartial manner.
Perhaps the formation of the election court, and preventing any other court from interfering in the elections and their results, especially the Constitutional Court, is the main challenge facing the process of agreeing to provide the most important electoral guarantees, which is the judicial guarantee, especially since the presidential decree was based on the interpretative decision of the Supreme Constitutional Court No. 10, which means that the court remains and can be used in constitutional appeals.
Therefore, it is important for the electoral appeals to be entrusted to one court, which is the Election Cases Court, which is formed by decree of the head of the Authority of nine persons, including its president, who must be agreed upon by the judges of the court and not leave the matter to the recommendation of the current Judicial Council in the West Bank, and with the presence of two rapporteurs for the court, one in Gaza and the other in the West Bank, given that the current law does not give a clear possibility to hold them in Gaza. Accordingly, to solve this problem, the President of the Palestinian National Authority must issue a decree by law amending his decision by Law No. 1 of 2007 regarding general elections, stating that the formation of the Election Cases Court, and provides that some of its judges reside in the Gaza Strip, and among them shall be named vice-president.
- Central Election Commission
The need for the Central Elections Commission to carry out its democratic, professional and independent work in organizing, managing and controlling the electoral process, ensuring unified efforts to make the electoral process a success and playing its role with other parties to ensure the broadest community participation, and sponsoring an electoral code of honor among all the parties competing in the elections, and providing all the positive climates necessary to activate the role Internal and external oversight bodies over the electoral process from the moment of issuance of the presidential decree and voter registration until the announcement of the final results of the elections and beyond.
Nevertheless, a number of observations can be recorded on the election law with regard to the commission, as the law does not give the election commission broad powers to enforce some provisions of the law, and all it can do is refer some of the violators to prosecution, but the commission, for example, can’t impose financial fines on the lists or candidates who violate certain provisions. There are many vague or unclear provisions, as well as some provisions that contradict each other, for example there is a lack of clarity about who must submit his resignation from his job in case of running for elections, and there is also a lack of clarity in the mechanism for the final counting of votes, where there is confusion between collecting records and counting votes in the electoral district offices and in the Central Elections Commission, there are gaps in the “Saint Logie” method mentioned in the law, as the provisions contained, do not deal with a case related to the distribution of the last seat when two or more lists are equal, or if the list gets more seats than the list’s candidates. The law also includes details that should be left to the election commission to organize by regulations and systems. There are many practical details in the ballot and the submission of requests for elections, which should be left to the regulations established by the Election Commission, for example, the law stipulates that the number of employees in the electoral district offices must be five people who are appointed by a majority of two-thirds of the members of the commission, and that whoever works in the district office must be at least 35 years old. These details are not needed in law.
- Censorship and freedom of electoral campaign propaganda
Work to provide complete freedom of political campaign, publishing, and holding political and electoral meetings without harassment and without the need for prior permission, while ensuring the impartiality of the security services in the West Bank and the Gaza Strip and not interfering with elections or propaganda for any political party and does not affect the course of the electoral process, and prohibiting the use of ministries and official bodies in the interest of any party or list participating in the elections, providing equal opportunities for all the forces and lists participating in the official media without discrimination, and organizing government financial funding for electoral campaigns in a way that guarantees justice and equality, equal opportunities for all the lists and participating forces and providing equal support to them, in addition to their full compliance with the law and international standards for conducting elections and not agreeing to exclude any of the candidates or electoral lists as long as they meet the legal conditions and in a manner that guarantees the integrity of their role and the independence of their decision.
With the importance of emphasizing the good choice of the commission’s employees in the registration, voting and counting processes, and ensuring the impartiality of its employees and the neutrality of the security services, while training them to ensure that they play their role professionally and independently and to prevent any imbalances in the electoral process.
As for monitoring elections, it is important to work on the existence of international and internal supervision of the elections, to ensure that the occupation does not interfere in favor of an electoral team or list, or to ensure that it is not locally rigged, which protects the will of the electorate and protects the elected representatives.
- Commitment to elections and their results
There are concerns that the mentality of the Palestinian leadership, according to multiple indicators, indicate the absence of the possibility of the Palestinian Authority allowing the handover to any government that does not conform to the Oslo path or to re-legalized Hamas and the resistance factions, which is not acceptable to the Israeli occupation, the international Quartet, and some other Arab, regional and international environments that set most of the current factions on the list of terrorism, and just as Hamas will not be ready to hand over the Gaza Strip in the way that the Authority and Fatah want, and because there is no agreement on a Palestinian national program or on the way to deal with Oslo and its obligations, after Hamas relinquished most of its objections and most of the power cards it possessed in managing the internal Palestinian situation, which means struggling again over the legitimacy, which requires taking into account the previous availability of political and legal guarantees that the paper dealt with.
Perhaps the most important guarantee that can be put in place to avoid the most important challenge, is that a document must be signed in which all forces pledge to abide by the election process and respect the election results, and to form a unity government after the elections that is formed on the basis of the results of the legislative elections and regardless of the percentages obtained by the winning lists, with serious endeavor with the international community to ensure respect for the results of the Palestinian elections, to benefit from the lessons of the previous division in marketing the government and its program in a way that enables it to take off and fulfill its role.
- The organization and the National Council elections
It is supposed to work on rebuilding and activating the Palestine Liberation Organization and for elections to begin in the National Council to allow the re-election of a unifying National Council that represents all categories inside and abroad, in order to ensure the reactivation of the organization and all its institutions. However, the decree that considered the elected members in the West Bank, including Jerusalem, and the Gaza Strip as representatives of the Palestinian National Council of the Palestine Liberation Organization was issued, provided that the elections for members of the National Council abroad will be completed on 31 August 2021, and if the decree does not specify the commission that will oversee the elections for the National Council in the remaining Palestinian localities, and does not specify the mechanism of the elections, and given the extent of the challenges facing conducting National Council elections abroad, especially in Jordan, which has an obstacle for everyone who holds Jordanian nationality who fears the negative impact of his participation in the elections, in the absence of state or authority standards on the ground, it is therefore possible to talk with the Jordanian regime about the participation of nearly a million non-holders of Jordanian nationality residing in Jordan, as it is a Palestinian-Jordanian interest to reject an alternative homeland. As for the rest of the countries hosting Palestinian refugees, serious efforts should be made to remove obstacles to their participation.
In case that it is not possible to guarantee their participation, two options can be considered, consensus and that is a less democratic option, or the electronic voting option, which must be studied with interest and provide all guarantees of its success in enhancing the participation of Palestinians in the election of the Palestinian National Council and ensuring the representation of all Palestinian groups and sectors, especially youth and women, and make it possible for all Palestinians who wish to participate in the elections by registering voters in Palestinian embassies, and giving them a special code and numbers within an application specially prepared for this, similar to the application of bank accounts for individuals to ensure the participation of those who wish to choose and nominate themselves in the elections for the National Council, under the full supervision and control of an international electronic auditing company, and under the supervision of the Central Elections Commission, after its assignment or the formation of a special committee for the National Council elections by consensus.
As for maintaining the completion of the National Council without defining an electoral law or an election commission, or setting clear criteria in the National Council elections, given that the PLO is the government of the state, and that the head of the organization is the head of the state, means betting on not holding it and agreed to complete membership in the National Council based on consensus, which means devoting the quota system again in the organization’s composition. It was more appropriate to complete the elections in the new National Council through electronic voting, which contributes to enhancing the participation of most Palestinians in addition to being beyond the threat of the Corona pandemic.
It is important to read the previous Palestinian political experience in the organization’s relationship with the authority, which emphasized the importance of separating the position of the president of the Palestinian National Authority or the position of the head of state and the head of the Executive Committee of the Palestine Liberation Organization, and this requires an agreement to disentangle the merger between the organization’s institutions from the institutions of the Authority in addition to an agreement to nominate a Palestinian from abroad to head the Palestinian National Council, another to head the Executive Committee of the PLO and another to head the Authority to bypass the restrictions imposed by the occupation on the authority and the exclusivity in managing public affairs and the absence of representation of the majority of the people from decisions, especially from the Palestinian diaspora, because ensuring the above, enables the new Council to adopt a social or constitution contract, or a new national charter and agreeing on a comprehensive national project and struggle strategy in addition to reactivating and reforming the PLO and all its institutions, approving its internal systems and regulations, reforming and electing its bodies and activating its role while ensuring clarification of its relationship with the authority and strengthening the role of its bodies in facing the national and humanitarian challenges of the Palestinians.
Third: Conclusion and election scenarios:
Despite the optimism of wide popular segments and the majority welcoming the holding of elections and the issuance of the presidential decree, this optimism can at any moment turn into a setback if the state of ambiguity and contradiction remains regarding the agreement to provide guarantees for holding elections, wasting time or gaining it until elections are held in the occupation state, President Biden’s policy becomes clear, and reading regional and Arab variables.
The most important question: Have guarantees for conducting legal and political elections been provided, and are the Palestinian parties able to agree on them in the time remaining until the moment they are held?
Perhaps the foregoing requirements, show the size of what is required to be done and agreed upon to provide guarantees for free and fair elections. On the other hand, the size of the challenges supports the viewpoint of the skeptics about the seriousness of holding the elections and accepting their results as a possible scenario because the legal and political issues to be agreed upon have not been agreed upon throughout 14 years of dialogues, on top of which stands the approval of the Palestinian forces to prepare for everything that succeeds the elections in achieving national goals and a step in ending the division, strengthening the political partnership, rebuilding all the institutions of the political system, especially the Palestine Liberation Organization, and ensuring agreement on a national program, forms of struggle, negotiations in accordance with international legitimacy and relevant United Nations resolutions, which makes the elections a complementary to the efforts confronting the occupation plans and end the division.
There is also another scenario indicating that the absence of agreement on political and legal requirements, in addition to the ongoing Corona pandemic, may cause it to be postponed, as the factors of disagreement on guarantees are high and perhaps greater than the factors of agreement, especially if we know that the issuance of the presidential decree, after using all pretexts, came to bypass foreign, especially European pressure to conduct it, and to ensure dealing with what the president, Fatah and Hamas believe, an opportunity in Biden in the office, with which one can bet on changes in the US foreign policy – despite the lack of the possibility – because the next US administration will be preoccupied with various internal files, in addition to Biden’s admission that he is a Zionist, and the changes he declared in the relationship with the Palestinians, given that they are insufficient, will not be immediate and need time for the approval of the Congress.
As for Hamas, despite its fear of the elections and the fears it previously expressed regarding the dissolution of the Oslo Accords’ obligations in order not to consecrate the Oslo era to futile negotiations, in addition to the fear and distrust of Fatah and the President, especially that the requirement for succession is not without political cunning so that legislative elections are held without the presidency and the National Council, which means excluding it from the partnership in the organization or the government in case it wins, especially in the West Bank, and other determinants that the movement had set before going to the elections, including the agreement on a national strategy program. It fears that it will appear before its partners in the factions as clinging to power, therefore it accepted the holding of elections in succession, betting that the president himself does not want elections, and that Fatah movement is in a difficult situation due to the differences that plague it and the failure of its political project, it fears that it will bear the burden of not conducting Elections or obstructing reconciliation. It also looks to the elections as a way to renew its legitimacy and participate in the organization, and this in itself is a good thing for it. Otherwise, the postponement of the elections or not conducting them will be the president’s fault, not its.
As for the third scenario: it is represented by conducting elections closer to the Senate than for free and fair elections, whether in the Legislative or National Assembly or presidential elections, and on the basis of holding elections with or without consensus, the important thing is to conduct them to renew the legitimacy of the ruling political class in the West Bank and Gaza, regardless of enhancing the division or not rearranging the internal house or the consolidation and activation of the institutions of the political system due to the absence of other alternatives and because their conduct is better than the status quo, so things were being engineered on this basis, which explains the issuance of the presidential decree as the only ball in the stadium, which everyone must come to compulsively under all circumstances, as the upcoming dialogues between Hamas and Fatah will focus on the president being at least a consensual candidate for Fatah and Hamas, and a joint list in the elections in which he leaves space and margins for the participation of parties and personalities with a limited percentage to complete the scene, which makes it closer to the Senate elections, whose goal is to allow the renewal of the same class ruling the political system in the West Bank and Gaza, which controls basic resources, media and security, which will cut off the road to any new forces and establishes the hegemony of the same class whether in the West Bank or Gaza Strip, leading the elections to lose their spirit and democratic significance as a mechanism for the renewal of the political class, and if we assume that the two movements, Fatah and Hamas, agree to the above, which means that the two movements collude in making the elections a sham phase that consecrates quotas and division and its administration, and taking that out in the form that this is better to prevent conflict and to enhance confidence or that it is linked to national interests.
In case that Hamas does not approve of the Joint List and does not accept the president as a consensual candidate, then all matters have been arranged by the president to ensure the holding of elections and the outcome is certain, and this explains the major changes that have been made in the structure of the executive authority and the organization previously and the legal amendments that he has devoted in violation of the constitution and his control over the entire judicial authority and the constitutional court that gives him the right to dissolve the elected council and initiate appeals by it, which may lead to tampering with the election results.
Whatever the scenarios were, the people, especially the youth, must be aware of the risks involved in holding elections to renew the legitimacy of the ruling class and a new political distraction to adhere to the reality of the autonomy authority according to the Oslo Accords, wasting time and the continued lack of ability to confront the occupation, and perpetuating division, by turning it into opportunities to create new currents, to prevent the renewal of the legitimacy of the political class that was the cause of the decline in the status of the Palestinian cause, violating their rights, cutting off their livelihoods, weakening their freedoms and encroaching on their dignity, they must be aware to prevent returning again to the politics of exclusivity, corruption, and oppression of rights and freedoms, perhaps stronger than before, or to repeat the experience of previous elections if guarantees of the electoral process not be agreed upon.
While we affirm the complete bias of the democratization process in the Palestinian political system, realizing that democracy requires, among other conditions, the holding of fair and periodic elections through which the people can freely choose their representatives in the exercise of government and are subject to accountability, we remind you that the elections was never an end in itself, but rather it is part of a comprehensive democratic process, the conduct of which requires the provision of the necessary conditions and guarantees to be conducted with integrity and transparency, and we confirm that the current crisis in the Palestinian political system is a political crisis of the first order and is not legal or constitutional, and that the only way to solve it is through the completion of the comprehensive national dialogue, therefore, the political forces and civil society organizations should put at the top of their priorities the provision of all guarantees of legal and political elections in a way that ensures that they form a basis for ending the state of division and achieving national reconciliation, because the only one pays the high price for this impact and its continuation is the Palestinian citizen.
The above requires caution and taking into account the seriousness of the possibility of the Palestinian dialogues failing to adopt all that is required to freely hold elections in a way that brings our people closer to their national and humanitarian aspirations. The absence of the ability to agree on most political and legal guarantees is a possibility and unfortunately a great one, which requires an important role from all social, political, and youth components to ensure interaction with the election process and its approach to ensure pressure to conclude an agreement on a national roadmap through which it overcomes all political obstacles that prevent the holding of free national elections in which the prevention of political exclusion and pluralism is guaranteed, and in which all understandings that have been made and will be agreed upon between the Palestinian factions and the Central Elections Commission are adhered to, and put solutions to various concerns that make factional agreements enforceable.
And that all legal guarantees are also provided for adopting legal amendments to the Basic Law and determining the nature of the political system (presidential, parliamentary, mixed) or at least agreeing that the elected council will do so as its first task, in addition to an agreement on election court judges and the presence of their headquarters in Gaza and the West Bank to settle all electoral appeals, neutralize the Constitutional Court, and reduce the percentage of the threshold by no more than 1%, and to enhance opportunities for youth and women to participate and lowering the age for youth candidacy.
In addition to creating the political and security environment, spreading freedoms, ending geographical discrimination and confiscating rights and freedoms, organizing government financial funding for electoral campaigns to ensure justice and equality, equal opportunities for all participating lists and forces and providing them with equal support opportunities for the success of the elections as a mechanism to strengthen the national partnership and make it a pathway to end the division and rebuild and activate the constitutional institutions, out of our belief that the burden is heavy and the challenges are great. It was proven in the past that a single party or a party alone will not be able to bear the burden of achieving the aspirations of the Palestinian people.