It becomes clear to us that there is no way out of the existing legislative inconsistency except by ending the division and having general elections that restore consideration to the constitutional institutions of the state, headed by the Legislative Council.
The elevation and advancement of states are based on the principle of separation of powers, the promotion of values of citizenship, the dissemination of legal thought and the drawing of legal policies that keep pace with the developments that would enhance the citizen’s confidence in the Palestinian legislation, which in turn aims to enhance the principle of the rule of law. The legal situation in Palestine compared to other countries of the world is considered complex and rare. Since the collapse of the Ottoman Empire, and until this day, it suffers from contention of laws, decisions, and military orders, wherein each era of Palestine’s history, a set of laws was issued that served the desires and aspirations of the ruling administration. This created a state of confusion and conflict between laws. Since 1994, in accordance with the Declaration of Principles on Interim Self-Government Arrangements, also known as Oslo I, several agreements have been signed. Amongst the most prominent of these agreements was the Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip, also known as Oslo II, that was signed on 28 September 1995, which dealt with many issues, most notably: the election of a Palestinian Council, the transfer of civil powers and responsibilities and the legal affairs in criminal and civil aspects.
Due to the Palestinian division in 2007, the dismissal of legislative elections as an option to end the division, the resulting legislative vacuum, and the separation of the two parts of the homeland, we ended up having 2 actual powers. One is in the Gaza Strip, which is a de facto authority, that depends on issuing laws regulating the legal situation in the Gaza Strip on the basis of Article (47) of the Palestinian Basic Law of 2003. The Palestinian President relied on Article (43) of the same law to issue decisions by law to regulate the legal situation in the West Bank. In light of the successive decrees issued by the Palestinian President, some decisions created great controversy.
With the issuance of a decree of law (5) for the year 2020, No. 165, that was published in the Official Gazette newspaper, dated March 19, concerning the Office of the President and the texts contained therein, especially those contained in Articles (9), (11) and (12), the researcher finds it gives the Presidential Office powers that can equal the authority granted to the Palestinian government. According to the law, the Presidential Office has the legal personality and capacity to undertake all legal actions to achieve the goals and tasks for which it was established, including owning movable and immovable funds and opening and closing bank accounts. According to the decree, the Office has an independent financial position within the general budget of the state and it may open sub-headquarters or offices in any governorate by decision of the president. The Presidential Bureau has the same powers granted to the Palestinian government according to the legislation in force, receives a salary equivalent to the salary allocated to the Minister and enjoys the same privileges and pension rights.
By reviewing the legal rules in light of the provisions of the Palestinian Basic Law, we find that this decree has explicitly violated the powers of the Council of Ministers stipulated in Article (69) of the Basic Law and the decision is inconsistent with the text of Article (63) of the Basic Law, which states: “The Council of Ministers (the “government”) is the highest executive and administrative instrument; it shoulders the responsibility for implementing the program that has been approved by the legislative branch. Except for the executive powers of the President of the National Authority, as specified in this Basic Law, executive and administrative powers shall be within the competence of the Council of Ministers.” The law granted powers to the Presidential Office parallel to the powers of the government in many areas, and abolished the control of the Legislative Council from the work of the Presidential Office, especially what was stated in Article (6) of it and which it says: “The Presidential Bureau shall be directly responsible for the progress of work in the Presidential Office, and for that purpose, he may perform the following tasks: approving the administrative and financial systems of the Presidential Office and submitting them to the President for approval.” This is completely inconsistent with Article (47) of the Palestinian Basic Law.
Article (43) of the Palestinian Basic Law regulates the state of necessity, which is used only in certain cases, as it contradicts the basic principles of parliamentary democratic systems that are based on the principle of separation of powers. In view of the decision of the law on the Office of the Presidency, it is not possible to do the case of necessity that requires the issuance of such a decision of the law. It becomes clear to us that there is no way out of the existing legislative inconsistency except by ending the division and having general elections that restore consideration to the constitutional institutions of the state, headed by the Legislative Council.
The opinions expressed in this article are the views of the author and not necessarily the opinion of the Association or donor.