Director General of the Independent Commission for Human Rights, Dr. Ammar Dweik:
Director general of the Independent Commission for Human Rights [ICHR] said the decision to establish a constitutional court was political in nature and that clearly, one of the tasks of this court was to dissolve the PLC and assume its role.
In an interview with “Hosted by MIFTAH”, Dweik confirmed that the PLC was a fundamental authority just like the others, stressing that the way out of the current crisis of the Palestinian political system was by holding free and fair elections, the results of which must be accepted by everyone. He added that these elections must include legislative and presidential elections, with legislative elections possibly being conducted first.
Following is the full text of the interview:
**How legitimate is the Constitutional Court? On what did it base its decision to dissolve the PLC?
The Constitutional Court was established at the beginning of 2016 by order of the President and based on the Constitutional Court Law No. 3 of 2006. However, at the time, we opposed the formation of this court for several reasons. First, the persons who were appointed to the court are all affiliated with one political group and have the same factional background except for one or two judges. Hence, it does not reflect the diversity among the Palestinians. Moreover, it was politicized from the beginning. Second, we opposed the fact that there was a lack of women’s representation. The third reason had to do with the timing of the court’s formation in light of the ongoing political division. We believe the court’s formation would further entrench the division (which is what happened). A fourth reason had to do with the reasons behind its formation; there was no reason or need for this court because according to the Basic Law, the Supreme Court carries out the role of the Constitutional Court in its absence. There was not a complete absence of the constitutional judiciary; there was a Supreme Court that played as constitutional. Moreover, there are very few constitutional cases in Palestine, which do not require the formation of a court or the expenses it entails. This is especially true since the court had prepared an amended bill for the Constitutional Court Law, which the President approved. This decision for the law gives considerable privileges to constitutional judges and a large pension package, something which will drain the already limited resources of the Palestinian treasury. Hence, there was no need to establish a Constitutional Court. However, it was clear that the goal of this court was political; we expected from the start that the reason for this court was to dissolve the PLC. I wrote an article about this two years ago in which I said this very thing, which was what happened.
There is no circumstance under which the PLC can be dissolved. Like I said before, the current PLC ends when a new one is elected and its members sworn in. Allow me to mention here that to dissolve the PLC, the Constitutional Court based its decision on two things: first, that the PLC was defunct and that its four-year term was over. In spite of our opposition to the decision to form the constitutional court, it is still a court decision in the end and went into effect. Our demand now is to expedite holding elections because it is the only way out of the situation we are in.
**Does President Mahmoud Abbas have the authority to dissolve the defunct PLC? On what did he base this decision?
Like I said in the beginning, neither the President nor any other party has the authority to dissolve the PLC. Four years after the PLC is elected, the President may call for new elections and if these elections are held and a new PLC is elected according to the law, the previous PLC can be dismantled. However, it is surprising that the court dissolved the PLC without setting a date for new elections and that a presidential decree was issued ending the term of the current Council.
**How legal is the decision of some PLC members to strip the President of his powers? On what did they base this move?
This is also a political decision with no legal basis. The truth is, Hamas’ PLC members meet and hold PLC sessions, which in our opinion are illegal, unconstitutional and do not meet the conditions for holding such sessions. Furthermore, since the President cannot dissolve the PLC since it is an elected Council, the PLC also cannot strip the President of his confidence because he is also directly elected by the people, except in cases determined by the Basic Law. These include lack of eligibility for example, upon a decision by two-thirds of the members. Barring this, the President cannot be touched. Hence, their decision was political, not legal.
**What impact does the dissolution of the PLC have on the division?
No doubt, the decision further entrenched the division, but in reality it has not impacted citizens’ lives because the PLC was already defunct and people did not see its impact. On the contrary, people were making jokes about the decision to dissolve the PLC because it didn’t make any difference to them. Still, this is a dangerous move and sets precedent in that the Constitutional Court now has the ability to dissolve future elected parliaments, and if elections results are not to the liking of certain people, they can use the court to nullify these results.
On the flip side of this, the dissolution of the PLC could be an opportunity to press for elections, which is what we hope to see happen.
**Is there a constitutional and legal way out of the crisis between the two sides?
The only way out is to call for elections. If elections are not held, this means there will be a vacuum, one which the PLO and PNC will move to fill. However, according to the Palestinian Basic Law, there must be a PLC and if there is none, legislative powers are shifted to the President, according to Article 43. Hence, we believe the best way to fill this vacuum is to hold elections.
**How do you explain the reactions from Palestinian factions, civil society, rights and legal institutions, and PLC members towards the court decision?
Both the Palestinian street and the political system are polarized. There is a split between Fatah and Hamas and division between the West Bank and Gaza Strip. This decision was made in this context and caused increased polarization and division; it will not lead to ending the division.
The division is 12 years old and with time it has become more entrenched, creating facts on the ground which could be hard to reverse. It is unfortunate for us as Palestinians that after 25 years of the Oslo experience and the governing experience, we have failed to build a unifying governing system that encompasses everyone. Our experience in governance will negatively impact our legitimate national rights and our ability to confront the occupation.
**What is your take on the legal status of international conventions and treaties in light of the Constitutional Court’s consideration that domestic and national legislation are above them?
The ruling of the Constitutional Court on international conventions is also surprising and is considered a setback in Palestine’s commitments. This decision was denounced by the Human Rights Council, the UN High Commissioner for Human Rights and the CEDAW Committee after the Constitutional Court expressed reservations about international agreements. It cannot do this since reservations are only presented by states, not courts; the role of courts is to apply the law not express reservations about it.
We are committed to these treaties and cannot disconnect from them even if there are court rulings that restrict adherence to them. However, the Constitutional Court placed obstacles in front of the application of international treaties in Palestinian bylaws, saying they cannot be applied directly but need to be published in Palestinian newspapers first and need to be translated into national legislation so they do not clash with Palestinian values and culture.
I think the Constitutional Court created these obstacles and slowed down the process of implementing international human rights law , which is a very conservative approach and contradicts with the approach of the Palestinian political leadership which believes abidance by and application of international treaties in Palestine is one tool for resisting the occupation. The court has weakened us before the world and has undermined our standing as a people and state that respects human rights. We want to be distinct and promote our standing in the world through respecting human rights.
**Do you think this prompt PLC members in Gaza to be skeptical about the current political system?
I don’t think there is anything called PLC members in Gaza. The PLC’s term legally ended by court order. Now, the only thing to discuss are elections. Surely, the Court’s decision, the skepticism surrounding it, the fact that Palestinian elections have not been held for a long time and that the President is also elected on a four-year basis, will give the opportunity for Hamas and others to cast doubt on the President’s legitimacy and the legitimacy of the Palestinian political system. That is why a renewal of this legitimacy must be through elections.
**Will the declaration of independence be adapted and amended to fall in line with international treaties and conventions signed by Palestine?
The Palestinian declaration of independence is a document that includes very advanced and rights-based content. It is something we are proud of as Palestinians and confirms Palestine’s respect for the International Declaration of Human Rights and for the principles of human dignity and tolerance. The declaration largely reflects international human rights conventions, which makes it unfortunate that the Constitutional Court decided to retreat even from our own declaration of independence.
**What party is authorized to call for elections?
Only the President, who must issue a presidential decree that sets a date for elections. His authority in this cannot be brought into question; he is still the president until a new president is elected.
We want presidential elections to be held; if the President calls for them today, the party that stands in their way will bear this historic responsibility before our people and the world.