By Emilio Dabed
In an earlier post for the “Nakba Files” concerning Mahmoud Abbas’ appointment of judges to the Palestinian Constitutional Court, I argued that the Palestinian Authority (PA) has become a ‘constitutional dictatorship’ that governs alone in an empty space. I also emphasized that the defining characteristic of this kind of political regime is not so much its overt, unashamed disregard of law but rather the constant resort to what Lisa Hajjar calls ‘strategic re-interpretations’ of legal norms, concepts, and principles, ‘to bring its own violence into the law’. Here I will try to further explain these ideas and give recent examples from PA judicial institutions.
German legal theorists coined the concept of ‘constitutional dictatorship’ to describe a government with ever-expanding powers, almost total power, held by the executive in a technically declared or purported state of exception. This is exactly the situation in which Palestinians are living today. The fact that the PA is not a state and that Palestinians live under occupation does not diminish the pertinence of the expression to describe their political condition. In fact, one could persuasively argue that Palestinians live under a double state of exception. One is the state of exception imposed on them by the Israeli colonial regime, and under which Palestinians are neither citizens-holders-of-rights nor political subjects of any kind but, rather, simply a fact, a threat, bodies ruled by violence normalized in law. The second state of exception is a Palestinian one. It is internal to the PA; it started in 1994 but was brought to its zenith after the 2007 split between the West Bank and Gaza Strip, with the legal and practical suspension of its constitutional regime. Despite my separation of these two spheres of exception for the sake of clarity, they are not really disconnected but rather intertwined in complex ways and accomplish the same objectives: they both contribute to dispossessing Palestinians of political existence, consolidating division and authoritarianism, and perpetuating colonial violence.
From its very inception, PA politics has mirrored the conditions of the state of exception: a political regime in suspension, ever-increasing executive powers, including the monopoly or control of different legislative and judicial authorities, normalized rule by decree, and extraordinary security measures to contain resistance and dissent. However, in recent years PA political practices have evolved from a simple state of exception to the dynamics of a proper ‘constitutional dictatorship’. It is a regime that far from abandoning or suspending law, uses law extensively to obscure the fact that its will to power is the only ground of its decisions. That the PA’s executive governs alone in an empty space does not mean that it does so in a lawless space. While this space is emptied of any higher grounds for its decision – apart from its need to subjugate – the law is an integral part of its strategy to normalize its violence. If this violence is not regulated by law, it is exerted through legal means, and it seeks the law’s legitimacy as a dominant discourse of truth.
Despite its apparently contradictory implications, the expression ‘constitutional dictatorship’ is extremely useful in understanding contemporary politics, in Palestine and beyond. In general, its importance lies in its capacity to highlight the complex relationship between law and power, the often forgotten fact that authoritarian forms of domination do not necessarily operate outside law or in a lawless political space. By counterintuitively linking the two concepts – frequently thought of as opposed to each other – ‘constitutional dictatorship’ draws our attention to the paradoxical fact that the expanding executive powers given to governments in the last 15 years, and their dire impact on public freedoms, have been combined with a strong, growing, verbal commitment to liberal democratic politics. It brings back to light not only that law is not the opposite of violence – as some dominant liberal view would claim – but also the more disturbing fact that extreme violence is inflicted precisely through the law, and with the purpose of imposing particular structures of domination.
In the specific case of the PA, the expression ‘constitutional dictatorship’ emphasizes a startling phenomenon, crucial to the understanding of current Palestinian politics: that the entrenchment of the colonial regime, the division within the national movement, the territorial and institutional fragmentation of Palestinians, and the PA’s heightened authoritarianism, have been reinforced, not against the law, but precisely through the PA’s legal structures, and are justified by a perplexing use of the language of rule of law, good governance, and human rights. This use of law and legal discourse have served to legitimize (or treat merely as a technical matter) the PA’s drift toward further concentration of power in the executive, repression, division, and its collaboration with colonial dispossession. These realities have been objectified and reproduced by laws, institutions, and its discursive strategies, which show that law and the language of rights are not at odds with the PA’s practices but, on the contrary, that the authority seems to comfortably speak this language. The PA has colonized and mastered the ‘discursive explosion’ in the juridical field that we witness in relation to Palestine, and skillfully manages to put it at the service of its own reproduction.
Two recent judicial decisions illustrate how the PA brings its own violence into the law.
Violence on the Body Politics: Suspension of Local Elections and Consolidation of Division
As expected, on October 3, 2016, the Palestinian High Court cancelled the local elections scheduled for October 8. In the last nine years, the PA has cancelled four calls for local elections and one call for presidential and legislative elections. Why? Because its leadership will only allow elections when and where they are sure of winning, and they knew, sooner or later, that they could not win any of those which they had scheduled. Their objective is not democratic politics, but simply holding onto power on which their businesses and privileges depend, while deploying a discursive strategy of legality that, at once, espouses and obscures the violence of their policies.
To this end, the small Fatah circle running the PA has done everything it could to ensure a potential electoral victory, and, interestingly, they have done so also through an intensive use of law. Since 2007, the PA’s executive has overseen a crackdown on all of its opponents outside and inside Fatah; a “police quasi-state” has been set up, one which entails repression, arrest, criminal prosecution, or forced exile of dissidents, along with torture that, in some cases, has led to the death of prisoners; the military courts have been reactivated and their jurisdiction expanded; NGOs linked to Hamas, but not only, are closed; some Fatah-dominated workers unions are declared illegal and their leaders arrested; Fatah members are summarily expelled from the party; amendments to the law are made by presidential decrees, including the electoral law which has been retailored to favor Fatah-PA; journalists and users of internet are being harassed and arrested, social media is monitored, and freedom of speech exists only in appearance. Despite all this, and quiet ironically, an organized rhetoric of ‘democratic legitimacy’, rule of law and respect of individual rights has only increased.
The details of the suspension of the 2016 local elections revealed the failure of these measures in securing an electoral victory for Fatah: extreme unpopularity of the PA’s leadership, acute internal divisions, armed infighting, and assassination plots, made almost certain a Fatah defeat. In fact, all this unveiled the state of disintegration and implosion reining in the Fatah movement which could not afford to appear, once again, cancelling elections. The courts could give a perfect, however disingenuous, alibi, and what better way of doing so than turning the violence of Fatah undemocratic practices into a legal question.
Indeed, the difference between previous cancellations of elections and the last one is that, at least formally, the latter was decided by the Palestinian High Court and not by the PA’s executive. This time, the High Court was called to sanction the decision in a ruling that it is in itself the embodiment of political violence: in the courtroom, three apathetic and unnecessarily severe judges surrounded by police officers read a poorly formulated series of quotations of legal texts and technical disquisitions. Rather than reasoning to coherently justify a legal argument, the wording only embraces the violence of the decision, rationalizes and reformulates it in a sort of canonical legal truth. Conveniently, the court decided to cancel local elections in Gaza and allow them in the West Bank. The violence that this decision embraces and normalizes is both the violence imposed by the division of the Palestinian national movement, and the violence through which the division is imposed and maintained.
Violence on Political Subjects: Presidential Power to Revoke Parliamentary Immunity of PLC’s Members
On November 6, 2016, the Palestinian Constitutional Court’s judges, appointed by the PA’s president in early April, upheld Mahmoud Abbas’ decree of 2012 stripping Mohammed Dahlan – his archenemy within the Fatah movement – of his parliamentary immunity as a member of the Palestinian Legislative Council (PLC). In its ruling — which The Nakba Files has published and translated for the first time — the court declared that the decree was made in accordance with the President’s powers under the law, and that the President has the authority to revoke immunity when the PLC is not in session.
Once again, to inflict the political violence that Abbas needs to maintain his full powers, the PA’s executive uses the law, and the courts are called to sanction and rationalize it in legal terms. The relevance of this court decision is twofold: on the one hand, the Constitutional Court endorsed Abbas’ general threat against his political rivals within and outside Fatah, and facilitated the potential criminalization of political dissent; on the other hand, the court ruling is issued at the cost of an appalling distortion of the constitutional text (the Basic Law), which also opens the door for unforeseeable developments towards more political violence.
All of those who agree with the Constitutional Court’s decision are aware of, or even participated in the constitutional reforms of 2003. These amendments, made with the clear intention of sidelining then-President Arafat and putting an end to his authoritarian practices, turned the Palestinian regime into a parliamentarian one. They divided political power, which until then was concentrated in the President’s hands, and vested the newly created post of Prime Minister and the Council of Ministers with the bulk of executive prerogatives. The “Amended Basic Law” – the text relied on by the Constitutional Court to justify its ruling – explicitly deprived the president of this prerogative and other executive powers. The amended text explicitly states that “except for the executive powers of the President of the National Authority, as specified in this Basic Law, executive and administrative prerogatives shall be within the competence of the Council of Ministers.” Among the executive powers attributed to the President by the constitutional text, nothing relates to parliamentary immunity, and the power of accepting the renunciation or revocation of this immunity is clearly within the sole authority of the PLC.
Despite its legal form, the ruling, in Italian thinker Giorgio Agamben’s words, “must be understood on political and not juridico-constitutional grounds.” It took place in what Agamben calls “this no man’s land between public law and political fact” characterizing the current Palestinian state of exception, that is, a state of legalized political violence.
As discussed in my earlier post, these rulings show the need for a more political than juridical analysis of PA law. The significance of these court decisions, their singularity as discursive events, the limits that they set, and the exclusions that they impose cannot be explained by legal interpretation or any kind of juridical grammar. The important question that arises is not whether the rulings are correct from a legal point of view, but rather the question of how did they become necessary? The answer is that they became necessary because the PA does not only inflict its violence but, for its own survival, the PA also needs to administer it, that is, to enforce its ‘biopolitical’ ambitions through a discourse of rationality that integrates the regime’s violence into the law.
 The phrasing is inspired by Lisa Hajjar’s analysis of Israeli attempts to redefine international law. Available at Global Dialogue. Newsletter for the International Sociological Association, Volume 6, issue 2, pages 14-17. http://isa-global-dialogue.net/normalizing-extreme-violence-the-israeli-case-3/ (last seen 11/16/2016)