To: Mr. Adam Entous
I refer to your fax and e-mail of 4th July and your telephone call on the same day.
Before answering your questions, it may be helpful, while interpreting the Basic Law, as amended, to keep two matters in mind as the main objects of such amendments, which came about as a result of the struggle for power between the late Abu Ammar and his Prime Minister Abu Mazin. These objects were: (1) severe reduction of the powers of the president in favour of the government, and (2) transfer of the powers of the president over security to the government. These two objectives have been achieved in the amendments. Moreover, the original basic law was careful to apply the concept of separation of powers so that the president was not empowered, for example, to dissolve the Legislative Council, and the Legislative Council was not empowered to unseat the president.
As to your questions:
1 – References to the Basic Law are references to it as it has been amended.
2 – Under Article 45 of the Basic Law, the President is given the power to dismiss the Prime Minister.
3- Under Article 83(6) the government is deemed as having resigned and shall be reformed in accordance with the provisions of this chapter in the following cases:
(6) dismissal of the prime minister by the president of the national authority.
The chapter referred to in the opening paragraph of this Article 83 is Chapter Five – entitled “The Executive Authority”, starting with Article 63 and ending with Article 96.
4 – It is clear from 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.
5 – The new government, as provided in Article 83(6), has to be formed in accordance with the provisions of Chapter Five. This is a general provision governing, inter alia, the specific situation when the prime minister is dismissed. Thus, in the event of dismissal, the formation of the new government must comply with the provisions of chapter five.
6 – Under Article 79(4) of chapter five neither the prime minister nor any minister shall assume his office except after a vote of confidence in from the Legislative Council. Again, this is a general provision applicable to any prime minister or minister.
7 – Under Article 66 of chapter five, the prime minister, once he has chosen his ministers, should request the Legislative Council to hold a special meeting for a vote of confidence in the government, and this meeting is to be held within a maximum of one week from the date of request. After the government obtains this vote of confidence and before it commences its activities, the prime minister and ministers take the oath. Article 79(4), as stated above, prohibits assumption of office before the vote of confidence of the elected representatives of the people. This is a basic rule of democratic government in the parliamentary system adopted by the Basic Law, whatever that government may be called. Otherwise, the door would become open to presidential dictatorship.
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 five, the dismissed government continues to act as a caretaker government. The Basic Law contains no specific provisions for what is sometimes called “emergency government”. Chapter Seven is concerned with states of emergency; and it is not always necessary to appoint a new government, although it is not unconstitutional to do so, provided such government is installed in the manner stated above.
8 – 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 the other provisions of the Basic Law may not 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 fulfill the objective 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.
9 – You ask whether we had anticipated a situation like the present. 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. This happens in any democracy with a presidential system of this type. It is presently so in USA and has frequently happened in other democracies like France. In a situation like this compromises are struck and neither the president nor the legislature would attempt to thwart the will of the people. Unfortunately, this did not happen in Palestine. While the transfer of power after the death of Abu Ammar went smoothly in compliance with the Basic Law, the same did not happen after the elections for the Legislative Council. Although Abu Mazin declared, immediately after the elections, that he would not deny the Hamas government what he had fought for while Prime Minister (i.e. that the security forces would be placed under the minister of the interior in compliance with his responsibility under the Basic Law), it seems that he was forced to renege, and the struggle for their control began. Even under the unity government, the minister of the interior was denied his constitutional right and was forced to resign, although he was neither from Hamas nor from Fatah, and was agreed upon by all concerned.
10 – 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. To many the hollowness of the call for democracy in the Middle East became too transparent when 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 as they have been called upon to do. The democratically elected government of Hamas was not even given a chance to govern and show its true colours in the position of responsibility, and many came to the conclusion that the aim of “democratizing” the Middle East was the production of subservient corrupt regimes. 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. And this is the cause of the present situation. Faced with a choice between the certainty and actual reality of economic disaster as a result of the siege imposed by the “democracies” and abiding by the provisions of the Basic Law, Hamas and Abu Mazin made different choices. On the regional scale, advocates of democracy and the rule of law received a great shock. Disillusionment about all claims of democratizing the Middle East has set in and the hypocrisy of such claims could no longer be hidden under the cloak of spreading western “values”. The credibility of western governments, particularly of USA administration, has suffered a retreat that it will take a long time to recover from. This, I admit, I did not anticipate.
Dr Anis Al-Qasem
5th July 2007