After 15-year wait, Palestinian elections face new obstacles following law amendments

Doubt cast on objective behind recent presidential decrees that might threaten first elections since 2006

Hamas chief Ismail Haniyeh (C, front row) and representatives of Palestinian factions gather at the Palestinian embassy in Beirut on 3 September 2020 for video conference talks with Palestinian President Mahmoud Abbas (screen) in Ramallah (AFP)

By Adam Khalil- 30 January 2021

As Palestinian factions prepare to travel to Cairo next month to hold talks on elections, which, if held, would be the first in 15 years, new obstacles have surfaced with President Mahmoud Abbas's amendments to laws that experts say could protect him from undesired results. 

The Cairo dialogue is reportedly set to take place in the Egyptian capital in the first week of February. It will bring together different Palestinian factions to discuss the issues stalling unity ahead of elections. 

Palestine’s main political movements, Fatah and Hamas, have in recent months renewed reconciliation efforts, mainly in an attempt to form a united front following normalisation agreements between Israel and four Arab countries.

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Both movements, according to experts, saw in the elections a viable way to protect themselves from the respective challenges they face with the changing climate in the region. 

According to a decree issued by Abbas's office on 15 January, the Palestinian Authority (PA), which has limited self-rule in the occupied West Bank, will hold legislative elections on 22 May, a presidential vote on 31 July, and National Council elections on 31 August.

While Hamas, the ruler of the besieged Gaza Strip, has agreed to participate in the elections, to be held successively and not concurrently, the president's moves to introduce judicial and legal amendments have raised doubts among Palestinian civil society and political forces about their objective and potential impact on the elections.

The Palestinian official Gazette earlier this month published the legal decisions issued by Abbas, four days before he ordered elections to be held, including Law No. 1 of 2021, which amends Law No. 1 of 2007, or what is called the Original Law, regarding general elections. 

Some of the amendments pertain to the period in which legislative and presidential elections are held and those who are qualified to run in the polls. Additionally, all references to "Palestinian Authority" in the Original Law are to be replaced with "State of Palestine".

Other decisions issued stipulate the formation of new regular courts, the establishment of an independent administrative judiciary at two levels, amending the Judicial Authority Law, and promoting a number of judges while referring six judges to early retirement.

Abbas's grip

These amendments, according to experts, have put the judiciary in "Abbas's grip," and through them the Palestinian president has prepared to fortify himself if the ballot boxes come out without the results he seeks. 

The decisions he has issued may turn the forthcoming Cairo dialogue "upside down," according to one Hamas official, as a range of pressing issues, relating to security, supervision of the electoral process, and public freedoms, also need to be discussed.

However, the media office chief of the Mobilisation and Organisation Commission in Fatah, Munir al-Jaghoub, does not see in these amendments an obstacle to the success of the Cairo dialogue and of holding the elections.

"President Abbas issued decrees and made amendments that preceded [Hamas political bureau chief Ismail] Haniyeh's letter in which he announced Hamas' approval to successive elections," Jaghoub told Middle East Eye, downplaying the timing of the president's move.

"The judiciary is one of the files that will be discussed in Cairo, and Fatah is keen on holding elections as a way out of the current reality that has dragged out since the split in 2007." 

'These amendments are a fortification of Abbas's unstated positions'

- Wasfi Qabha, Hamas official

He added that Fatah, of which Abbas is the chairman, wants elections that renew legitimacy and reunify the Palestinian political system.

Hamas, for its part, has not hidden its concerns as to whether free and fair elections will be held, despite receiving Arab and Russian guarantees, which paved the way to Haniyeh sending a reconciliation letter to Abbas on 2 January.

One official source in Hamas told MEE that the movement did not waive its condition for simultaneous elections of its own volition, but the decision was rather a result of pressures and regional developments, particularly in light of the normalisation agreements.

Wasfi Qabha, a Hamas official in the occupied West Bank, said that Hamas is going to the elections as a way out of the restrictions it has long been facing, especially the security persecution targeting it in the West Bank, whether by the Palestinian Authority or Israel.

Hamas does not have the option to refuse joining the elections. Qabha said that the movement wants to prove to the Palestinian people, and everyone else, that it is "the protector of the national project, and that it is present in the field of politics as well as in the field of resistance".

Qabha acknowledged that Abbas's amendments to the judiciary have added to the fears that Hamas already has.

"These amendments are a fortification of Abbas's unstated positions," he said, adding that, under these amendments, the Palestinian Authority can go to court to contest and cancel the election results if they do not conform to what it wants.  

"Abbas and his team, and behind them the international community, want to deter Hamas and contain it with democracy," Qabha said.

"After they failed to do so in the 2006 elections, which ended in unwanted results in which Hamas won a majority, they will try again with an improved plan in the upcoming elections."

Hamas' motivations

Asked why Hamas would still participate in such elections, Qabha said the movement would not withdraw from the scene and give the impression that it was unable to compete.

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"The elections are a national entitlement, and Hamas wants to pull the rug from under Fatah's feet, which puts sticks in the wheels and does not want real elections," he said.

Regarding whether a joint list with Fatah is an option that might fortify the results, Qabha said that Hamas does not mind, but, on a personal level, he is opposed to such a course of action, which would politically require that either Fatah acquiesce to the Hamas programme or Hamas to conform to Fatah's.

"We are facing judicial amendments aimed at more controls to form a total political theatre, and prepare Abbas legally, judicially and politically for everyone to go to a match where the result has already been fixed," lawyer Salah Abdel-Ati, head of the International Commission to Support Palestinian Rights, said. 

"[According] to amended election law, the president of the Supreme Judicial Council, nominated by Abbas, would appoint court judges, contrary to consensus and the law, and therefore the election appeals court will be under the control of President Abbas."

Political analyst Hani Habib believes that, motivated by different "dilemmas," Fatah and Hamas approached each other and both have found in the elections the "available exit".

According to Habib, many factors have led to the current developments regarding the elections, the most dangerous of which is the Arab normalisation with Israel, and the possibility that Qatar will eventually join that circle, in addition to the changing political scene in Washington with the new administration.

"Hamas is looking for a vital area for itself in the Palestinian interior through an electoral process in anticipation of possible tightening in the region's capitals," Habib told MEE.

"Meanwhile, the Fatah-led PA sees the elections as necessary to create an atmosphere in the event the Biden administration decides to revive the peace process with Israel."

Although Fatah and Hamas have agreed to elections out of necessity rather than conviction, their taking place is still in doubt, in light of the "formidable obstacles" awaiting the parties in Cairo.

'If the legislative results are contrary to the influential party, who guarantees that the presidential decree is respected and conducts presidential elections and then the National Council?

- Hani Habib, analyst

Habib believes that either of the parties may resort to "torpedoing" the understandings reached and thwarting the elections if the results do not work in their favour.  

While presiding over a session of the Fatah Revolutionary Council in Ramallah this week, Abbas threatened all those who deviate from the organisational consensus and ran for the elections with a separate list, according to what was published by the local news agency.

"Hamas does not disagree with all of President Abbas's amendments to the judiciary and the decrees to amend the laws, so some of them are in its favour," Habib said.

"The political obstacles that had been binding upon the legislative members were removed from the [vision] of the Palestinian Liberation Organisation [PLO] programme and the Independence Document (1988)." 

On the other hand, however, Abbas maintained the PA and PLO’s political programme to govern those who want to compete for the presidency, restricting candidates and violating the principle of equal opportunities.

Therefore, Fatah insisted on successive elections, as it does not want results that would be issued simultaneously and confuse the scene, and Hamas agreed to receive external guarantees.

However, Habib cast doubt on the value of international guarantees if there are no local guarantees that the election results will be respected.

"If the legislative results are contrary to the influential party, who guarantees that the presidential decree is respected and conducts presidential elections and then the National Council?"