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Will Palestinian local elections courts be established?

The Ministry of Local Governance has suggested the formation of local elections courts to prevent the Courts of First Instance from ruling on cases related to local elections.
Palestinian policemen stand guard outside the headquarters of  the Central Elections Commission in the West Bank town of El Bireh August 17, 2016. REUTERS/Mohamad Torokman  - RTX2LI47

GAZA CITY, Gaza Strip — On Oct. 3, the Palestinian Supreme Court of Justice suspended all preparations for local elections in the Gaza Strip due to what it ruled to be the illegality of the Gaza courts. On Oct. 4, the government issued a decision to freeze the elections in the West Bank and Gaza Strip for four months. These rulings have now paved the way for a proposal to bypass the Courts of First Instance in the provinces; these courts specialize in the examination of challenges against candidates, as stipulated in Article 13 of the 2005 local elections law.

The Courts of First Instance in the provinces have been the most prominent point of disagreement in the cancellation of the Oct. 8 elections. On Sept. 8, the Courts of First Instance in the Gaza Strip rejected five Fatah electoral lists. This angered Fatah, which then refused to recognize courts with Hamas-appointed judges as legal. Yet Fatah and all other Palestinian factions had signed a code of honor prior to the start of the electoral process, stipulating that Palestinian parties shall “abide by the rulings of the Palestinian courts [of first instance], in terms of the electoral process.”

Mohammed al-Jabarin, undersecretary of the Ministry of Local Government, told Al-Monitor that the ministry submitted a proposal to the government Oct. 4 to form a court to examine challenges filed during the local electoral process, similar to the temporary presidential and legislative elections courts, which were formed according to the presidential and legislative elections law.

He explained that the ministry’s proposal includes an article providing for the amendment of the local elections law No. 10 of 2005, specifically in terms of the competent authority to examine electoral challenges, and for determining that this competent authority is the elections court, which will assume the role of the Courts of First Instance in the provinces regarding the elections.

Jabarin told Al-Monitor that after an Oct. 11 Cabinet meeting, “The government and the Ministry of Local Government decided to start communicating with the Palestinian factions and civil society institutions … in order to amend the local elections law, and thus form a special elections court.” Jabarin said that once the law is amended and the court is formed, the local elections date likely would be determined in all Palestinian territories.

Hisham Kahil, executive director of the elections commission, told Al-Monitor, “The local elections law No. 10 of 2005 stipulates that the Courts of First Instance in the provinces are competent to examine electoral challenges, and we have nothing to do with any amendments added to the elections law; we are the party in charge of the implementation of the law and we are not a legislative party.”

Kahil denied that the elections commission has anything to do with the proposal to form a special elections court, and he pointed out that this court’s formation requires a presidential decree by President Mahmoud Abbas, and that it should be dissolved once the electoral process is over.

Fatah confirmed that it is seriously considering a proposal to form a special local elections court, as it perceives that this court will be a solution to the Gaza court rulings that led to the postponement of the recent local elections. Fatah does not recognize the legality of the Gaza courts controlled by Hamas, according to Amin Maqboul, secretary-general of Fatah's Revolutionary Council.

Maqboul told Al-Monitor that the government and the Ministry of Local Government are conducting consultations with Palestinian factions and institutions to amend the law and form a court. He expressed his hope that Palestinian parties reach an agreement over the court before the local elections date is determined.

Nevertheless, Hamas rejected the formation of a special elections court. Hamas leader and member of the Legislative Council Yahya Moussa told Al-Monitor, “All of the steps undertaken by President Abbas and the government are a distortion of the Palestinian elections law, in order for Fatah to seize power in any way.”

He added, "The Palestinian Legislative Council (PLC) is the competent authority to add any amendments to any Palestinian law, not the presidency nor the government. [The government] has no legal ground, because it did not derive its legitimacy from the PLC, as Article 66 of the basic law stipulates.”

The most prominent problem that could challenge the formation of the special local elections court is that the local elections law needs to be amended by the PLC, which has not convened jointly for years in the West Bank and Gaza Strip due to the Fatah-Hamas split.

International expert in electoral systems Taleb Awad told Al-Monitor that the proposal to form a special local elections court along the lines of the presidential and legislative elections court was put forward by civil society organizations and Palestinian parties in 2012, as different provisions were issued by the Courts of First Instance in the provinces during the 2012 local elections in the West Bank.

Awad pointed out that the formation of this court requires that several items be amended: the local elections law, provisions stipulating that the Courts of First Instance are the competent authorities to examine the challenges and the three days' legal time limit given to the court to respond to the challenges. “Thus, an amendment of the law and an extension of an additional few days are required, because a single court will be examining the challenges in the entire Palestinian territories, which includes 416 constituencies,” he said.

Salah Abdel Ati, director of the Palestinian Center for Policy Research & Strategic Studies (Masarat), told Al-Monitor that the fundamental problem is political, not legal. He demanded that Fatah and Hamas refrain from politicizing the judiciary, abide by legal provisions and work together to guarantee the rule of law and the integrity and independence of the judiciary rather than move toward the formation of a special court or act on local elections law amendments,.

He said that the formation of a special local elections court is contrary to the law, which states that the Courts of First Instance are the competent authorities to consider electoral challenges. He pointed out that it is better to have the Courts of First Instance examine the challenges instead of having a single elections court examining challenges in 416 constituencies.

The formation of a special elections court seems to be a new obstacle on the path to the upcoming local elections. Also, it is difficult to amend the local elections law, given the PLC’s inability to convene since 2007, due to the Fatah-Hamas split.

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