By Emilio Dabed
Understanding the Nakba as a category of analysis of an ongoing process of dispossession and settlement requires an inquiry into the structures that implement and sustain it. Law, not only in the sense of code of norms but also as practice and discourse, is at the core of these structures. This is especially true for structures used by Israel to rule Palestinians indirectly while continuing the colonization of land. As has become clear in the last 20 years, the regime inaugurated by the Oslo accords is nothing but the latest version of the schemes of domination and dispossession of Palestinians, and, therefore, the Palestinian Authority (PA) and its legal practices should be central to the investigation of the complex links between the Nakba and the law.
In early April, PA president Mahmoud Abbas issued a decree appointing judges to the Palestinian Constitutional Court for the first time – a decade after the Court was officially created. The immediate explanation for this move is relatively straightforward: under the PA constitution, called the Basic Law, the 81-year-old Abbas should be succeeded by the speaker of the Palestinian Legislative Council (PLC) pending new elections. The PLC, though not functioning since 2006, is controlled by Hamas. Abbas was therefore seeking to empower an institution that could guarantee a legal interpretation of the current political situation ensuring that after Abbas the PA presidency remains in the hands of his political faction, Fatah.
At a deeper level, however, the saga of the Constitutional Court – its successive drafting, revisions and promulgations between 2003 and 2016 – reflects both the extremely legalistic character of the PA and the “state of exception” in which Palestinians live, despite not having a sovereign state. If critics typically point out (and rightly so) that the PA is not a “real” state and that it is powerless before Israel, they tend to overlook the evolving forms of power and disturbing uses of law that characterize the Palestinian Authority.
This brief history of the constitutional court exposes some dimensions of the PA’s increasingly authoritarian rule toward its own people, and offers an example of how it persistently uses law and legal language to sustain an extralegal existence, to frame its political claims, and to cover its practices with a purported legal legitimacy. The legal history of the PA’s constitutional court also evokes those procedures and forms of power exercise that, despite their legal form, “must be understood on political and not juridico-constitutional grounds.” They take place in what the Italian thinker Giorgio Agamben calls “this no man’s land between public law and political fact” characterizing the state of exception that he considers “the dominant paradigm of government in contemporary politics,” and that has been implemented also in Palestine.
The law establishing the Constitutional Court was promulgated not once, but twice. The law was originally drafted in 2003, when a part of the Palestinian leadership, Israel and the “international community” wished to weaken the institution of the PA presidency – then held by Yasir Arafat – by creating the post of prime minister as a counterweight, which was then occupied by Abbas. The constitutional court was envisioned as a strong referee that could settle disputes between the two offices. After a few years in the drafting process, the Constitutional Court Law was belatedly passed by the PLC in December 2005 and then promulgated by presidential decree. By that time, Abbas had succeeded Arafat as PA president.
Just a few weeks later, however, Abbas abruptly reversed course. On 23 January 2006 – just two days before legislative elections that would bring Hamas to power – Abbas sent a letter to the PLC “withdrawing” his approval for the legislation and presenting a list of demands for amendments. Abbas claimed, bizarrely, that the version of the law voted on by the PLC was different from the one sent to his office. His letter did not describe the alleged discrepancies between the two versions, explain his objections to the enacted law, or provide any legal basis for asking for amendments at this stage. But the political context was clear: Hamas would soon have the power to appoint a prime minister – the very office that Abbas, the US, and Israel, had once sought to strengthen. In this context, a robust independent constitutional court threatened to undermine Abbas. The lame-duck PLC acquiesced to Abbas’ request and passed a new version of the Constitutional Court Law on 13 February 2006 – just five days before the legislature came under Hamas control.
The new version of the Constitutional Court legislation introduced several major changes:
- In the original law, judges were appointed by the president with the approval of the PLC. Under the new law, no PLC vote was required. Instead, the President makes appointments in consultation with either the Minister of Justice or various judicial bodies. Perversely, Abbas justified eliminating the PLC’s role as a step to ensure the “separation of powers.”
- The Constitutional Court’s role in settling disputes between the president and prime minister was eliminated.
- A provision for the Court to oversee penal measures against the PA president was deleted.
- A provision allowing individuals to lodge constitutional challenges against presidential actions was also deleted.
- The court’s jurisdiction over presidential decrees was eliminated.
- Powers concerning accountability for judges were concentrated in the hands of the court president, who is appointed by the PA president.
Although he effectively defanged the Constitutional Court, Abbas nevertheless kept it vacant and thus inoperative for the next decade. Constitutional matters instead continued to be handled by the Palestinian High Court of Justice, which has also reliably ruled in Abbas’ favor or abstained to oppose his policies.
This immediately raises the question: why has Abbas finally decided to activate the Constitutional Court after all these years? The answer seems to be that the popular support of the PA’s leadership has plummeted to new lows and its increasing authoritarian practices have sparked widespread opposition even within the judiciary. The gap between the Palestinian constitutional regime and the PA’s policies is such that Abbas requires an extraordinary court to legally justify the extraordinary measures needed to secure control of the PA.
For the last nine years, after the division of the PA into two governments, one in the West Bank (Fatah) and the other in Gaza (Hamas) in 2007, critical sections of the constitutional regime established in the Basic Law have been suspended by presidential decree, particularly those regulating the formation of the government. The West Bank is ruled by “emergency governments”, and the expansion of executive powers to almost “full powers” over Palestinian politics has transformed the political regime into one in which the PA is even less constrained by law than before. The PA’s executive governs alone in an empty space (the state of exception) that, if clearly not regulated by the law, it is sustained by the law. That may help to explain that, despite its repressive measures against Hamas and the broader population, Abbas’ regime has co-existed with greater references to rule of law and respect for rights, as when the PA ratified a series of international human rights conventions in 2014.
No Palestinian leader has ever had the powers concentrated today in Abbas’ hands. To maintain this state of affairs or to secure the same powers for his successor, the Constitutional Court stands ready to help. The Court, as currently configured, will likely endorse and legitimize the constitutional dictatorship that the PA has become, that is, a political regime whose defining characteristic is not the overt, unashamed disregard of law but, rather, the constant resort to “strategic interpretations” of legal norms, principles, and concepts to bring its violence into the law.
 “Letter from President Abbas to the Speaker of the PLC regarding the approval and promulgation of the Constitutional Court Law”, Ramallah, January 23, 2006, in file with the author. This document and others quoted or referred to here are part of the archives of the Palestinian Legislative Council that the author collected, organized and translated.