Rule of Law and Governance in the Palestinian Authority

5. Political Context

Abstract

This section provides a brief overview of the political and legal context of the Palestinian Authority informing the regulatory policy process.

Since the establishment of the Palestinian Authority in 1994 and its legislature, the Palestine Legislative Council (PLC), there have been significant changes in the structure of its executive. The PA does not have a formal constitution. The Basic Law, which was promulgated by the President in 2002 and subsequently amended in 2003 and 2005, provides an interim constitution for the PA. It sought to establish a multiparty democratic parliamentary system based on the principle of separation of powers, with the people as the source of power and the rule of law as the basis for governance. (EUPOL COPPS, 2017[1])

Regulatory policy in the PA can only be properly viewed within the context of an extremely complicated political and legal environment. The law is a blend of regulations issued under several political regimes, dating as far back as the Ottoman Empire. As in Jordan, the law is a blend of Islamic customary law, Urf, and the principles of Islamic Shari’a (the main source of legislation), the stock of legislation applied or enacted under the Ottoman Empire (1516-1917), British Mandate Law (1917-1948), Jordanian legislation applied to the West Bank and Egyptian legislation applied to the Gaza Strip (1948-1967). There have also been subsequent Israeli amendments to previous legislation applicable in areas which were introduced by military orders, and, of course, legislation enacted by the Palestinian Authority since 1994. This legacy creates a significant challenge when drafting new legislation. The “fragmentation of the laws” and low public confidence in the judiciary poses strong challenges for implementing and enforcing laws (OECD, 2011[2]).

The President of the PA is directly elected for a four-year renewable term and is supported by an administrative and organisational body, the Office of the President (OoP). The PA has held presidential elections twice. The first were in 1996 and won by Yasser Arafat. Mahmoud Abbas was elected President 2005. The Palestinian Liberation Organisation’s Executive Committee extended his mandate in 2009. In January 2021, President Abbas issued a presidential decree setting dates for elections — starting with elections for the PLC; followed by those for the presidency. However, on 29 April 2021, President Abbas indefinitely postponed the electoral process citing Israel’s refusal to permit the inclusion of East Jerusalem. In addition, in March 2020, President Abbas issued a presidential decree expanding the administrative and financial powers of his Office.

The PMO was created in 2003 to manage day-to-day activities of the Palestinian Authority and support the OoP with developing policies. Initially, prime ministers were Fatah members, reflecting the party’s electoral majority in the PLC. Following Hamas’s election in the 2006 legislative elections, Ismail Haniyeh became prime minister and the role of the PMO became more independent and ‘technocratic’: first under Salam Fayyad (2007-2013); and then under Rami Hamdallah (2013-2019). The latter formed a short-lived coalition endorsed by Hamas in June 2014. In March 2019, President Abbas appointed Mohammad Shtayyeh as prime minister. (European Council on Foreign Relations, 2021[3]).

Since 2007, legislative competences have been assigned to the President due to the absence of a functioning legislature, the PLC. Since the 2006 election and the political division between Fatah and Hamas, the PLC has not been able to govern. The President can rule by decree in cases of necessity that cannot be delayed and when the legislature is not in session, based on Article 43 of the Palestinian Basic Law (see Box 8.2 in chapter 8). Once the PLC resumes its work, the legislature will have to approve all decrees issued by the President during its first meeting.

Furthermore, a different law-making process has operated in the West Bank than in the Gaza Strip since 2007, as a result of the political division between Fatah and Hamas. In the Gaza Strip, the PLC passes legislative enactments in line with the normal legislative process by adjusting PLC internal procedures. For example, to ensure an integrated voting process, the Gaza-based PLC has introduced the use of authorisations obtained from PLC members, who are held in Israeli prisons. The two parties have categorically refused enforcement of the legislative acts issued by the other. (Institute of Law, Birzeit University, 2017[4])

In the absence of a normal law making process, this report and its recommendations are all the more relevant and necessary. These recommendations will assist the PA to put place a comprehensive regulatory policy, establish processes for a transparent rulemaking process and ensure regulatory quality. However, given the unique political context of the PA, there is a clear need to put in place the basic building blocks of effective governance, including establishing a functioning legislature and consolidating the legal systems of the West Bank and Gaza.

References

[1] EUPOL COPPS (2017), The Legislative Process in the Palestinian Authority.

[3] European Council on Foreign Relations (2021), Mapping Palestinian Politics, https://ecfr.eu/special/mapping_palestinian_politics/presidency/ (accessed on 7 September 2021).

[4] Institute of Law, Birzeit University (2017), Report on The Legislative Status in the Palestinian Legal System following the Internal Palestinian Political Divide: 2007-2017, Ramallah, Birzeit, Palestine.

[2] OECD (2011), Regulatory Consultation in the Palestinian Authority: A Practioners Guide for Engaging Stakeholderes in Democratic Deliberation, https://www.oecd.org/mena/governance/50402841.pdf.