{"id":2558,"date":"2012-02-16T09:09:17","date_gmt":"2012-02-16T09:09:17","guid":{"rendered":"https:\/\/pcdcr.org\/?p=2558"},"modified":"2016-02-28T09:10:28","modified_gmt":"2016-02-28T09:10:28","slug":"%d8%a5%d9%84%d9%89-%d9%85%d8%aa%d9%89-%d8%b3%d9%8a%d8%b3%d8%aa%d9%85%d8%b1-%d8%ba%d9%8a%d8%a7%d8%a8-%d8%a7%d9%84%d9%85%d8%ac%d9%84%d8%b3-%d8%a7%d9%84%d8%af%d8%b3%d8%aa%d9%88%d8%b1%d9%8a-%d9%81%d9%8a","status":"publish","type":"post","link":"https:\/\/pcdcr.org\/en\/%d8%a5%d9%84%d9%89-%d9%85%d8%aa%d9%89-%d8%b3%d9%8a%d8%b3%d8%aa%d9%85%d8%b1-%d8%ba%d9%8a%d8%a7%d8%a8-%d8%a7%d9%84%d9%85%d8%ac%d9%84%d8%b3-%d8%a7%d9%84%d8%af%d8%b3%d8%aa%d9%88%d8%b1%d9%8a-%d9%81%d9%8a\/","title":{"rendered":"How long will the absence of a constitutional council in Palestine continue?"},"content":{"rendered":"
In the light of the debate over Abu Mazen heading the government<\/span><\/div>\n
<\/div>\n
How long will the absence of a constitutional council in Palestine continue?<\/div>\n
<\/div>\n
By: Dr. Jamil Juma Salama<\/div>\n
<\/div>\n
Since the signing of the recent Doha agreement or declaration on the sixth of this February in the Qatari capital between President Mahmoud Abbas (Abu Mazen), president of the Palestinian Authority and head of the Fatah Movement, and Mr. Khaled Meshaal, head of the political bureau of the Hamas Movement, consisting of four clauses, the new element in it being the second clause, which provides for \"forming a Palestinian national consensus government of independent professional figures headed by His Excellency President Mahmoud Abbas, whose task will be to facilitate the presidential and legislative elections and to begin the reconstruction of Gaza within a set period\", the heated political and legal debate has been mounting over the constitutionality of this step and how far it accords with the provisions of the Palestinian Basic Law, which serves as the provisional constitution of the Palestinian Authority.<\/div>\n
<\/div>\n
I do not wish to enter into the political debate on the subject, for politics absorbs everything and is like open space: some have described it as the art of the possible, others as the art of lying, and others still have called it rubber that can be pulled in every direction. Nor do I wish to address the debate within Hamas itself over the mechanism by which Khaled Meshaal was authorised to take the decision, for that is a matter for the movement's own institutions as a political party, and the same applies to the Fatah Movement, which sees in this agreement a way out of a long bottleneck. What I wish to address is the legal side of this debate, and specifically the constitutional side.<\/div>\n
<\/div>\n
A constitution, as jurists define it, is the body of rules and texts that organise the form of the state and its institutions of government, whether legislative, executive or judicial, and the relationship between them, along with public freedoms and citizens' rights and duties and the other components and foundations of the state. In short, it is the identity card of any state or political entity. Constitutional texts stand above all other legal or legislative texts and are considered the frame of reference for governance as a whole. So does the Doha agreement, particularly the clause on the consensus that President Abu Mazen head the government, accord with the texts of the Basic Law, or does it leap over and beyond them?<\/div>\n
<\/div>\n
Reactions to this have differed. Mr. Ismail Al-Ashqar, deputy head of the Hamas parliamentary bloc, described it as an unconstitutional step contrary to the provisions of the Basic Law, on the basis that the constitutional amendment of 2003 was in its essence about separating the two posts at the head of the executive authority, the president and the prime minister, and that combining them is therefore an explicit constitutional breach, in addition to the fact that the Abu Mazen-Meshaal understanding in Doha in no way removes the requirement that this government obtain the confidence of the Legislative Council in accordance with the provisions of the constitution. His colleague, MP Khalil Al-Haya, head of the Hamas parliamentary bloc, went further by requiring that the agreement's implementation be preceded by a constitutional amendment permitting the posts of president and prime minister to be combined, sharing his colleague Al-Ashqar's view that the agreement does not exempt the new prime minister from obtaining parliamentary confidence. Mr. Azzam Al-Ahmad, head of the Fatah parliamentary bloc, replied to them with strong criticism, describing the matter as constitutional, since there is nothing in the provisions of the Basic Law preventing the two posts from being combined, following the rule that everything is permitted unless there is evidence of prohibition, and that the executive authority is a single unit, in addition to the fact that it is the president who chooses and dismisses the prime minister and that the anticipated government, being a consensus one, is not subject to parliamentary confidence. For his part, Dr. Ahmed Youssef, an official in the Palestinian Accord Commission and a moderate Hamas leader, described the step as consensual, stressing that the higher national interest is above everyone and that the constitution is in the service of consensus and not the reverse, explaining that the Legislative Council is made up in its majority of the Fatah and Hamas blocs, so that granting parliamentary confidence is a foregone conclusion given that the consensus in Doha was between the heads of the two main factions.<\/div>\n
<\/div>\n
Three prominent views addressed the matter from a purely political standpoint, and I will avoid entering into endorsing or faulting any of them, with my respect for everyone's views. I do not question the intentions of those who hold them or their concern that the path of national reconciliation succeed, despite my academic and professional standing to judge them, and I will reserve my position for one reason: a question of this kind is, in all comparable political systems in every country of the world, exclusively within the jurisdiction of the constitutional judiciary to determine, and this is what our own Basic Law provides, which we accepted as a social contract among us and whose texts we agreed upon. It cannot be addressed in an improvised or arbitrary way, nor can this view or that be justified on the pretext of relying on texts as idols, as some have done, or of dealing with the spirit of the texts, as others have done.<\/div>\n
<\/div>\n
A question of this kind, and before it the question that stirred great controversy for months and years over President Abbas's term and its constitutionality, which even reached the corridors of the Arab League and its councils, reflects a vast vacuum in the Palestinian political system and its lack of a constitutional institution to address such crises and difficulties and to resolve them with decisive professional rulings that dot the i's and apply the provisions of the constitution, as in all other political systems. This missing link is the institution of constitutional justice in our country.<\/div>\n
<\/div>\n
This institution, provided for in our national constitution in article 103 under the heading of the Supreme Constitutional Court, and for which a regulating law was issued by the Legislative Council, no. 3 of 2006, has unfortunately never come into being. The situation in force remains that inherited from the period of Egyptian administration of the Gaza Strip, namely attaching the court's jurisdiction to the High Court, which sits in several capacities including as the constitutional court. This is what the constitutional drafters entrenched in the Basic Law, repeating another error by attaching it within the judicial authority, in clear breach of the principle of the separation of the three powers, executive, legislative and judicial alike.<\/div>\n
<\/div>\n
With the painful geographical and administrative division that befell the Palestinian political system after the bloody events of June 2007 and the splitting of the Palestinian judicial apparatus, the constitutional judiciary split with it, and the High Court in its constitutional capacity became two courts as well. The constitutional court thus became a problem rather than the solution and its safety valve. This, unfortunately, is also what the Cairo agreement and its annexes overlooked, and it remains absent to this day amid a confusion that reflects a failing among the political elites in understanding the political system and its components and sovereign institutions, a limited constitutional and legal culture, and an inability to grasp the great and extreme importance of this institution in the light of the birth of a new Palestinian political system based in its essence on political partnership, on sharing of decision making and on rotation of power.<\/div>\n
<\/div>\n
What is required today is to provide the guarantees and mechanisms to make the Cairo and Doha agreements and any other earlier or later agreements a success and to protect them from any stumbling blocks or obstacles that may beset their path and threaten, God forbid, to blow them up and return us to square one. What is required is that the political wills of all the parties come together to complete the national accord we seek by creating this constitutional institution under the name \"the Constitutional Council\", because the word \"council\" confers a sovereign character compared with the word \"court\", in addition to separating it entirely from the judicial authority, given that this council is constitutional and sits above the three powers rather than being part of them or subordinate to them, and providing it with complete independence from the various centres of power in the authority in order to curb the personal and factional interests that find their role in the continuation of a shapeless, non-institutional state in which there is no accountability and no oversight. This council would be the body upholding and watching over the application of the constitution's provisions, overseeing that and determining the various constitutional disputes, such as the present disagreement, which is liable to worsen, God forbid, or any later crises that may arise in the future. Otherwise we will carry on beating the drums of our constitutional crises one after another and creating abundant material for the satellite channels and internet networks to prattle over and pour more oil on.<\/div>\n
<\/div>\n
The continued absence of this council means we are further from resolving our disagreements in a civilised, institutional way in accordance with the good governance we seek, and so we remain captives of media clashes and of appealing to the logic of force and arms and of trampling on our national constitution and committing a new massacre against it, as occurred during the bloody events of June 2007 and what followed, before my people awoke to the inevitability of national partnership after lean years from which no one emerged victorious and in which the people, the homeland and the cause were the greatest losers.<\/div>\n
<\/div>\n
The continuation of the present state of affairs also means insisting on carrying on down the wrong road, in good faith or bad, and it is certainly a road contrary to our national interest that serves none but the enemies of the homeland, the constitution and the law, and the traders in politics.<\/div>\n
<\/div>\n
O God, I have conveyed the message; O God, bear witness.<\/div>\n

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