TEXT-Opinion of lawyer who drafted Palestinian law

Sun Jul 8, 2007 9:24am EDT


July 8 (Reuters) - Anis al-Qasem, who led the drafting of the Palestinian interim constitution, disputed President Mahmoud Abbas's legal authority to install a government last month that removed Hamas from power without parliamentary approval.

Below is the text of his reply to questions from Reuters:

"It is clear from (Basic Law) Article 45 that the president has the power to dismiss the prime minister. However, under Article 78(3), the dismissed government continues to run the affairs of government temporarily as a caretaker government until the formation of the new government in the manner provided by the Basic Law.

"Under Article 79(4) of Chapter 5 (on executive authority), neither the prime minister nor any minister shall assume his office except after a vote of confidence from the Legislative Council (parliament)...

"Conclusion: The president has the power to dismiss the prime minister and to start the process of the formation of a new government. The basic ingredients of this process that give legitimacy to the new government are a vote of confidence by the Legislative Council and the oath of office.

"Until the formation of the new government in accordance with the procedure laid down in Chapter 5 of the Basic Law, the dismissed government continues to act as a caretaker government. The Basic Law contains no special provisions for what is sometimes called 'emergency government'."

"As to the powers of the president in a state of emergency, the only power specifically given to him is to declare the state of emergency in the manner provided in Article 110. He cannot issue decrees suspending any provisions of the Basic Law.

"The Legislative Council continues to function (Article 113), and none of the other provisions of the Basic Law may be touched except as provided in Article 111, which deals only with restrictions that may be imposed on basic rights and freedoms, and even these may only be affected to the extent necessary to fulfil the objective of the emergency as stated in the emergency decree.

"It is worth remembering that the whole Basic Law has been amended to reduce, rather than increase, the powers of the president as a result of the power struggle between Mr Abbas when he was Prime Minister and the late President Arafat.

"Of course we anticipated that, in a system where both the president and the legislature come to power through popular elections, there is the likelihood that the president may belong to one political party while the majority in the legislature may belong to another, with the possibility of divergence of policies, as it has happened frequently in democracies like the United States and France.

"In a situation like this, compromises through dialogue are struck and neither the president nor the legislature would attempt to thwart the will of the people. If a deadlock is reached, the president may exercise the power given to him by the Basic Law and dismiss the government and appoint a new government that would, ultimately, receive the approval of the Legislative Council. Through this requirement of approval the elected representatives will determine the propriety or otherwise of the action of the president and the will of the electorate will not be thwarted. That was the expectation."

"What we had not anticipated is the reaction of 'democratic' governments to the free exercise of the Palestinian people of their democratic right to change the government, a government whose corruption and lawlessness, which Palestinians considered a stain on their culture and reputation, have been the talk of the international community...

"No constitutional draftsman would anticipate such a situation when his aim is to provide a basic law anchored in democratic principles and the rule of law."



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