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Political Rights in Palestine: Between the Anvil of Internal Political Divide and Prospects of National Reconciliation

On Monday, 15 December 2014, the Institute of Law (IoL) at Birzeit University organised in cooperation with the Konrad Adenauer Stiftung (KAS), Palestinian Territories, a conference on Political Rights in Palestine:

Between the Anvil of Internal Political Divide and Prospects of National Reconciliation held via videoconference in both the West Bank and the Gaza Strip, the conference elaborated on the current Palestinian political context after the Palestinian national reconciliation effort has materialised. Conference sessions particularly focused on relevant reflections on legal, administrative and political structures in Palestine.

In the opening ceremony, Dr. Samia Halileh, Birzeit University Vice President for Community Affairs, stated that the Conference was the end product of the Law and Politics project implemented by the IoL Legislative Support Department (LSD). A collection of research papers were compiled with a view to examine the current context of public rights and freedoms in light of the Palestinian legal framework. According to Dr. Haleileh, the Conference “addresses legislation, internal Palestinian political divide, and national reconciliation effort. Combined, these characterise the current Palestinian landscape.”

Mr. Hans Maria Heyn, Head of the KAS Office, Palestinian Territories, applauded the significant partnership between KAS and IoL and highlighted the diligent effort made by the IoL staff to improve the legal context in Palestine. Mr. Heyn asserted that “KAS pays a special attention to supporting initiatives and research projects, which contribute to promoting rule of law, democratic practice, and public rights and freedoms.”

Mr. Jamil Salem, IoL Director, expressed his hope that the Conference sessions and panel discussions would provide a milestone and full picture of the reality of political rights during the internal Palestinian political split. The Conference will cast light on reflections on legal positions and duplicate public institutions in the West Bank and Gaza Strip. Palestinian citizens have been immediately affected by consequences of this political schism. The Palestinian public are subject to laws and laws by decrees promulgated for specific purposes to meet certain needs.

Previewing Conference goals, Mr. Mahmoud Alawneh, IoL LSD Manager, stated that the Conference would examine the current context of public rights and freedoms within the Palestinian legal system, with a particular focus on political rights following the Palestinian national reconciliation. Conference presentations provide a review of and potential approach to dealing with legal and administrative consequences and positions created after the internal Palestinian political divide has ended. An investigation of the right of assembly under the Palestinian legal system focuses on relevant variables on the Palestinian scene as well as current regulation of political parties. The Conference is concluded with a a treatise on the Palestinian electoral system and outlook for future legal and partisan approaches.

The Conference was launched with the first session on Political Rights: Between the Internal Palestinian Political Division, National Reconciliation. In his presentation on Reflections on the Palestinian National Reconciliation Effort, Dr. Ghassan al Khatib reviewed negative implications of the internal Palestinian political split on political rights and current prospects of the national reconciliation effort. According to Dr. Khatib, Palestinian citizens commonly confuse national reconciliation agreements with reconciliation per se. National reconciliation has not materialised. What have been in place are mere reconciliation agreements of similar content. Reconciliation protocols provide for formation of a unity government, unification of government bodies and security agencies, community reconciliation, reinvigoration of the Unified Leadership Framework of the Palestine Liberation Organisation (PLO), general and local elections, and election of the Palestinian National Council. None of these technicalities have been achieved. In reality, it seems that an agreement has been made to not implement national reconciliation protocols. Dr. Khatib pinpointed challenges to and poor prospects of the national reconciliation effort.

In his paper on Principles, Mechanisms and Achievements of the Committee on Public Freedoms, Dr. Mustafa al Barghouthi reviewed historical development and charter of the Committee on Public Freedoms. Approved by Palestinian factions, the Committee was established after the Cairo Reconciliation Agreement had been concluded. Charter of the Committee on Public Freedoms was presented to the PLO Unified Leadership Framework. Dr. Barghouthi overviewed principles provided by the Committee’s charter. These comprises a range of rights and freedoms, which were violated since the internal Palestinian political split has taken place. Most importantly, the charter addresses prohibition of detention on political grounds, summons to security agencies, and encroachments on of the freedom of expression, particularly freedom of the press. The charter also emphasises respect for the freedom of movement and right to a passport. Dr. Barghouthi made reference to the strongly worded statement of the Committee on Public Freedoms, which reported an unprecedented, serious decline of national reconciliation agreements. The statement also highlighted disrespect for the Committee’s decisions.

Presenting on The Palestinians’ Right to Reconciliation and Right to Disagreement, Dr. Mudar Kassis explained that the Palestinian landscape was affected by schism and monopoly of power. The latter is a common practice in both the West Bank and the Gaza Strip. Absence of resistant political action is a particularly negative impact. Due to the current division, popular support of the national reconciliation effort has declined. According to Dr. Kassis, the question should be brought back to the revolution after it has been lost.

In his talk on Rights, Freedoms and the Palestinian National Reconciliation: A New Reality, Mr. Mohammed Khader explained that Palestine accommodates both a current and an inherited legislative framework. This legislative reality is not compatible so as to allow exercise of political rights and freedoms. In addition to an inadequate judicial apparatus, official authorities have been involved in the internal Palestinian political split. However, public authorities are immune from legislative and judicial accountability.

Via videoconference, Dr. Mohammed Abu Matar made a presentation on Political Rights and Freedoms in Palestine and Arab Countries with Revolutionary Movements. Since 2007, both governments in the West Bank and Gaza Strip have impinged on legal provisions on political rights and freedoms. To assess the regulation of political rights and freedoms, Dr. Abu Matar provided a comparison between Egyptian Tunisian constitutions, showing how complaint Egypt and Tunisia are with relevant constitutional provisions in a practical context.

The first Conference session was moderated by Ms. Sahar Francis, General Director of the Addameer Prisoner Support and Human Rights Association. Ms. Francis stressed insightful input of presentations made in this session.

The second Conference session addressed Legislation, Reconciliation and Principle of Legitimacy. In her paper on The Legislative Process after the Internal Palestinian Political Split, Ms. Razan al Barghouthi made an overview of stages of the legislative process in Palestine. To promulgate regulations, the West Bank- and Gaza-based governments applied different legislative tools and mechanisms. Authoritative reference used to pass legislation also differed. While the President’s Office invoked Article 43 of the Palestinian Basic Law, the Change and Reform Bloc used powers of attorneys given by imprisoned members of the Palestinian Legislative Council (PLC) to enact regulations.

In his paper on Potential Solutions for the Legislative Status and Duplicate Institutions in the West Bank and Gaza Strip, Mr. Mahmoud Alawneh presented potential scenarios and solutions to cope with the current legislative situation should the internal Palestinian political divide come to a real end. To also consolidate public institutions, a number of scenarios can be implemented to handle regulations enacted during the international Palestinian political split. Principles and parameters will be set to address the present legal context. Besides different legislative mechanisms, regulations issued in the West Bank and Gaza feature substantial variations. Mr. Alawneh proposed mechanisms that help the PLC deal with these regulations once it is in session. Legal positions created by post-2007 enactments will also be addressed carefully.

Advisor Fawwaz Abu Zir made an intervention on Legal Committee’s Approaches to Reviewing Legislation and Administrative Processes. Having presented key approaches used by the Legal Committee to review legislation and administrative processes, Advisor Abu Zir questioned the legal positions Palestinian citizens have acquired under post-2007 regulations enacted in the West Bank and Gaza. Everybody has the duty to search for solutions, rather than discuss whether these regulations are constitutional or not. To handle legal positions, a research initiative should focus on citizens’ interests. The legal effect of several laws by decrees enacted by the President after 2007 has expired. These do not have be reconsidered. To overcome these predicaments, the Legal Committee has been established to examine pieces of legislation passed during the internal Palestinian political split.

In their presentation, Control over Legislation and the Principle of Legitimacy, Dr. Assem Khalil and Mr. Mohammed Abdul Ghafour explored the High Constitutional Court’s role in controlling legislation. Control is central to consolidating rule of law. In light of international practice, Dr. Khalil and Mr. Abdul Ghafour called for a rejuvenated role of the High Court in its constitutional capacity. In relation to the Palestinian legal framework, the Court should not stand idly by; it is pivotal to providing needed legal reviews. The Court should further play a balanced, positive role in relation to other public authorities.

Dr. Salah Abdul ‘Ati stressed importance of the right of legal redress as a constitutional norm provided by all international conventions. In his talk, The Judicial Apparatus after National Reconciliation and the Problem of Consolidation, Dr. Abdul ‘Ati explained that consolidation of the Judicial Authority in the West Bank and Gaza was impeded by several challenges, including Israeli policies, internal Palestinian political division, and intervention by security agencies. During the internal political split, the right to seek legal redress was affected by several infringements. Due to unduly delayed enforcement of court decisions, the right of legal redress is no longer safeguarded. Fair trial guarantees are also absent.

Dr. Ghassan Faramand, who moderated this session, highlighted that presentations provided an instrumental and serious approach to examining the current context of the Palestinian legal framework.

The third Conference session elaborated on Political Rights: Between Theory and Application. In his paper on Impact of the Internal Palestinian Political Split on the Right to Freedom of Association, Mr. Raed Abdul Hamid reviewed reflections of the internal Palestinian political split on charitable associations. Although the primary law (Law on Charitable Associations and Civil Society Organisations) has remained unchanged, many regulations on associations were enacted during the internal Palestinian political split in the West Bank and Gaza Strip. In addition to reviewing legal and practical grounds of the Law on Charitable Associations and Civil Society Organisations, Mr. Abdul Hamid explored the legal framework and current regulation of charitable associations. The Judicial Authority exercises control over registration, management, dissolution and disposition of properties of charitable associations. In conclusion, Mr. Abdul Hamid provided an overview of functions and challenges to charitable associations during the internal Palestinian political divide.

Presenting on Political Parties in Palestine: Legal or Self-Regulation, Mr. Mo’een al Barghouthi explained the concept of political party, faction, organisation, and movement. Regulating the working relationship between political movements and the political authority, relevant constitutional and legal frameworks include inherited, effective and proposed enactments. Having analysed inherited and operative constitutional instruments, Mr. Barghouthi explained that connections between political movements have paved the way to a self-regulation. From a legal perspective, the repealed Ottoman Law on Associations is still instrumental in terms of provisions on regulation of political associations. Political parties and factions need to review respective bylaws and shift from a factional to a partisan system.

In his paper on The Right to Form Political Parties: Law and Practice, Mr. Anees Abu Siba’ reviewed the legal framework of formation and membership on political parties. The presentation was referenced by relevant provisions of the Palestinian Basic Law, laws and regulations, and international conventions on the right to from political parties. Mr. Abu Siba’ reviewed key provisions of the Jordanian Law on Political Parties, boundaries of legal regulation, evolution of political parties in line with electoral laws, and restraints on functions of political parties.

In her presentation on Peaceful Assembly between Legal Legitimacy and Politics Law, Ms. Alaa’ Hammad explained the concept of peaceful assembly, relation to other rights, and legal principles under domestic and international legal frameworks. Overviewing violations during the internal Palestinian political split, Ms. Hammad described the current exercise of, and accountability for violations on, the right to peaceful assembly in Palestine.

From Gaza, Mr. Mohammed Abu Hashem delivered a presentation on Regulation of the Right to Freedom of Association and a Treatise on Reflections of the Internal Palestinian Political Divide. In light of relevant international standards and obligations of the Palestinian National Authority, Mr. Abu Hashem elaborated on the concept and significance of associations and right to freedom of association. In reference of legal regulation of associations in Palestine, Mr. Abu Hashem provided an analysis of key enactments promulgated before and after the internal Palestinian political divide. Executive oversight of associations was also introduced.

Dr. Omar Rahhal, Director of the Human Rights and Democracy Media Centre (SHAMS), moderated the session. He highlighted challenges to the Palestinian legal system as well as to public rights and freedoms during the internal Palestinian political split.

Entitled the Electoral System between National Reconciliation and Party Quotas, the fourth Conference session included three presentations. In his talk on A Legal Review of Laws Regulating the Right to Vote in Palestine, Mr. Ma’an Id’eis made clear the right to vote and run for office in light of relevant international conventions and national legislation. Mr. Id’eis overviewed the current context of the right to vote in Palestine, including before and after the internal Palestinian political divide took place.

Talking about Impact of the Palestinian National Reconciliation on the Electoral System, Dr. Jihad Harb explained applicable electoral systems, casting light on the pros and cons of each. Dr. Harb focused on the mixed electoral system, which will be implemented after the national reconciliation effort has materialised. Citing experience of the 2006 elections, Dr. Harb stressed impact of the electoral system on elections results and proposed some solutions to improve the Palestinian electoral system.

From Gaza, Dr. Adnan al Hajjar addressed the significance and types of electoral systems. In his presentation on The Electoral System in Palestine between Personal and Partisan Interests, Dr. Hajjar provided an analysis of the first and second Palestinian legislative elections. The electoral system to be implemented in the upcoming elections was central in negotiations on the national reconciliation. On many occasions, it posed a challenge to reaching an agreement. Dr. Hajjar recommended that an agreed electoral system should be approved. Taking account of national interests, this electoral system will put an end to the monopoly of power and allow the largest number of parties and lists to participate in the elections.

Dr. Hisham Kuheil, who moderated this final session of the Conference, commended the presentations delivered and recommended that electoral laws be reviewed. A public debate should also be launched to promote participation of society.

During the Conference sessions, the audience from both the West Bank and Gaza Strip made valuable interventions and informed discussions. In conclusion of the Conference, a set of recommendations were proposed:

- Need to end the internal Palestinian political split between the West Bank and Gaza Strip. The national reconciliation agreement should be translated into reality.

- Carry out necessary legal reviews of legislative and institutional structures.

- Examine legal positions created by regulations enacted during the internal Palestinian political divide.

- Examine potential solutions to consolidate items of legislation passed in the West Bank and Gaza.

- Rejuvenate the Judicial Authority’s role so as to promote political rights.

- Review regulations on the electoral system with a view to reflect the Palestinian society’s trends and desires. New legislation will enhance small parties and lists, ensuring an equitable participation in the political life.

- Avoid party quotas in the process of drafting electoral laws.

- Ensure that political parties shift from a factional to an organised partisan activity.

- Review legal frameworks of political parties.

- Put an end to the Executive intervention in functions of associations and in peaceful assemblies.

- Terminate the Executive dominance over other authorities based on relevant legal principles and international conventions.

This Conference is informed by a compilation of research papers produced by the IoL LSD staff. Entitled, Political Rights in Palestine: Between the Anvil of Internal Political Divide and Prospects of National Reconciliation, the research project was supported by the KAS Office, Palestinian Territories.
  1. Mr. Hans Maria Heyn
  2. Mr. Jamil Salem
  3. Mr. Jamil Salem, IoL Director
  4. Dr. Ghassan al Khatib
  5. Dr. Mustafa al Barghouthi
  6. Dr. Mudar Kassis
  7. Mr. Mohammed Khader
  8. Dr. Mohammed Abu Matar
  9. Ms. Razan al Barghouthi
  10. Advisor Fawwaz Abu Zir
  11. Dr. Assem Khalil
  12. Mr. Mohammed Abdul Ghafour
  13. Dr. Salah Abdul Ati
  14. Mr. Raed Abdul Hamid
  15. Mr. Moeen al Barghouthi
  16. Mr. Anees Abu Siba
  17. Ms. Alaa Hammad
  18. Mr. Mohammed Abu Hashem
  19. Mr. Maan Ideis
  20. Dr. Jihad Harb
  21. Dr. Adnan al Hajjar

  the Institute of Law (IoL) at Birzeit University


Closing Statement