NABLUS, West Bank (Reuters) - The senior lawyers who wrote the interim Palestinian constitution say President Mahmoud Abbas exceeded his powers in appointing an emergency government to replace a Hamas-led cabinet without parliamentary approval.
The Palestinian constitutional lawyer who led the framing of the Basic Law accused some political leaders of “destroying” its foundation and expressed dismay at how Western powers responded to the free election of a Hamas government headed by Prime Minister Ismail Haniyeh by imposing a crippling boycott.
Abbas’s office had no immediate comment. A spokesman for his Fatah party said at the weekend, however, that the president’s word was law as long as Hamas’s “mutiny” paralyzed parliament.
Washington, which imposed the boycott when Haniyeh took office in March 2006, embraced as “legitimate” the cabinet Abbas appointed after Hamas routed his Fatah forces in the Gaza Strip on June 14. The European Union also “emphatically” backed Abbas’s actions as “in keeping with the Palestinian Basic Law”.
In their first public comments since Abbas formed a new government, Anis al-Qasem, who oversaw the writing of the Basic Law, and fellow independent Palestinian constitutional lawyer Eugene Cotran said the document whose drafting they began more than a decade ago gave Abbas the power to dismiss Haniyeh.
But, they said, it did not grant him the power to appoint a new government without legislative approval nor the right to suspend articles of the Basic Law, as he did last month to spare new premier Salam Fayyad the need to win a vote in parliament.
Appointed by Yasser Arafat, al-Qasem said the president’s powers were “intentionally and explicitly very restricted”.
However, Azmi Shuaibi, who sat on a parliamentary committee on the Basic Law, defended Abbas’s power to suspend articles. He said Article 113, which stipulates that the legislature “shall not be dissolved or suspended during the emergency situation, nor shall the provisions of this chapter be suspended,” meant he “can suspend articles in other chapters”.
Al-Qasem disagreed, cautioning against making “such wild implication ... particularly where the implication could easily lead to dictatorship — the system that the Basic Law was intended, in all its provisions, to guard against”.
“They are obviously looking for the slimmest argument to build a mountain on and dry the ocean. They are destroying the foundation on which the Basic Law is laid,” he told Reuters.
Al-Qasem and Cotran said the Basic Law further prescribes that Haniyeh’s dismissed unity cabinet, which included Abbas’s secular Fatah faction, remain the caretaker administration until Abbas secured parliamentary approval for a new government.
“What is clear is that ... the Haniyeh government, doesn’t fall during the period of an emergency,” Cotran told Reuters.
Al-Qasem said that under Article 78 “the dismissed government would continue 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.”
He noted Article 79 stipulates “neither the prime minister nor any minister shall assume his office except after a vote of confidence” from the legislature. The Basic Law has no specific provisions for an “emergency” government, he added.
The law says a presidential emergency decree lasts 30 days, extendable with parliamentary approval. But Cotran said: “That doesn’t mean that he can form a new government. ... Ruling by decree doesn’t mean he can suspend or change the constitution.”
Al-Qasem and Cotran made the comments in a series of telephone and email exchanges over the past week. Al-Qasem was in Spain; Cotran in Britain.
Fatah spokesman Jamal Nazzal was quoted on Palestine Radio saying the Basic Law does not limit how often the president can declare a state of emergency, so it can be extended “as long as the mutiny which brought that situation about continues.”
It is unclear what role, if any, the legislature can play — over the past year, Israel has arrested nearly half of Hamas’s parliamentary majority bloc, making it virtually impossible for the body to reach a quorum to hold a vote.
Despite the problems forming a quorum, Cotran said Abbas still needs parliamentary approval. Ultimately, he said, the Palestinian constitutional court would have to decide.
That, however, appears unlikely any time soon as the constitutional court is also not functioning.
Law professor Ahmad Elkhaldi, who worked on drafts of the Basic Law, said he was concerned Palestinian democracy, long touted as a goal by Washington, was “in retreat”.
A political independent who angered some in Fatah by serving as justice minister in Haniyeh’s first cabinet, Elkhaldi was briefly abducted by masked gunmen loyal to Fatah last month.
“They wanted to send me a message that ‘you have to stop speaking about who is right and who is wrong’,” Elkhaldi told Reuters, with a much-thumbed copy of the Basic Law lying beside him on his desk at Nablus’s al-Najah University.
“We have to work inside the restrictions of the Basic Law, not put the Basic Law aside and do whatever we want.”
In Washington, Nathan Brown, a professor who has advised the Palestinians and the Iraqis on new constitutions, said: “These are absolutely and clearly black and white violations. He has no authority whatsoever to appoint an emergency government.”
For al-Qasem, the lawyers’ work has been thwarted by the politics of punishing Hamas for refusing to give up violence:
“The Palestinians were immediately rewarded by the ‘democracies’ of the world with an unprecedented crippling siege as a punishment for the exercise of their democratic right. ... No constitutional draftsman would anticipate such a situation.”
Additional reporting by Atef Sa'ad in Nablus