Whose
Coup, Exactly?
By Virginia Tilley
19 June, 2007
The
Electronic Intifada
Having
sacked Ismail Haniyeh of Hamas and dissolved his democratically-elected
government, Palestinian Authority (PA) president Mahmoud Abbas has now
installed Salam Fayyad as the new Prime Minister, to the clear delight
of the West. Mutual accusations are hurled by Abbas and Haniyeh that
the other side launched a coup against the legitimate authority. Nevertheless,
now a fresh line of grave Palestinian faces has lined up before the
cameras as Fayyad's new "emergency government" is sworn in.
That the new PA has virtually no power in the West Bank, and none at
all in Gaza, is the first glaring problem with this pageantry. (Bitter
jokes about a 'two-state solution' consisting of the West Bank and Gaza
Strip have circulated.)
An international community
worried by the 'coup' accusation might endorse the Fayyad government
as the seemingly correct position. But the 'coup' claim stumbles over
a basic problem -- that Abbas's appointing a new prime minister was
itself entirely illegal. The new 'emergency government' is illegal,
too. According to the Basic Law of Palestine (as amended in 2003), which
serves as the constitution of the PA, Abbas can do neither of these
things. Nor can the new 'emergency government' claim any democratic
mandate. This means that Abbas and the Fayyad government are ruling
by decree, outside the framework of the Basic Law. So on what basis
is that government supposed to govern -- and on what basis are foreign
governments supposed to deal with it?
According to the Basic Law,
Abbas has violated a whole stream of Articles as well as the spirit
of its checks and balances, which were designed during the Arafat era
partly to limit the power of the presidency. With full US and Israel
support (if not their insistence), Abbas has baldly trashed numerous
provisions of the Basic Law, including:
The President can sack his Prime Minister (Article 45) but he cannot
legally appoint a new Prime Minister that does not represent the majority
party (i.e., Hamas).
In the event that a President
sacks the PM, the Government is considered to have resigned (Article
83), but the serving Cabinet (here, the Hamas-led Cabinet) is supposed
to govern until a new Cabinet is confirmed by the Legislative Council
(Article 78).
Only the Legislative Council
can confirm the new PM and Cabinet and the new officials cannot take
their oaths (Article 67) or assume their duties (Article 79) until this
is done. We might now look for the Fayyad government to go to the Legislative
Council for post hoc approval, but if the Legislative Council cannot
vote for lack of a quorum -- because too many of its members are in
jail or refuse to participate -- then the Cabinet cannot be legally
confirmed. The Basic Law provides no remedy for conditions where the
Legislative Council cannot vote to confirm the Cabinet or the actions
of the President.
The President can rule by
degree during emergencies (Article 43) but the Legislative Council must
approve all these decrees at its first meeting.
The President cannot suspend
the Legislative Council during a state of emergency (Article 113).
The President has no power
to call early elections, either.
The Basic Law has no provision
whatsoever for an "emergency government."
What does this mean for the
PA? It is no longer the same animal. The Fayyad government is the step-child
of an extra-legal process with no democratic mandate. The whole manoeuvre
is not precisely a palace coup, but it is something like it.
What does this mean for the
world? Foreign governments now confront one of the most unwelcome events
in international diplomacy -- the sudden transformation of a government
into a different kind of government. As in any revolution or coup, diplomatic
recognition of Salam Fayyad's "emergency Government" as the
legitimate representative of the Palestinian people must now be reassessed.
For example, by what authority does the "emergency government"
act in the name of Palestinians in the West Bank and Gaza? What capacities
and responsibilities does the "emergency government" now have?
On what legal and political bases are diplomatic relations to be sustained?
We must admit that these
are legal but also political questions. The PA is the invention of the
1993 and 1995 Oslo Accords (it was supposed to serve for a period "not
exceeding five years") But the Basic Law was developed later, to
confirm and ensure its democratic character. This set of laws represented
a Palestinian state-building measure, providing a start-up framework
for Palestinian democracy in anticipation (or at least affirmation)
of eventual Palestinian statehood. Hence the Basic Law refers in its
introduction to the 1995 Oslo 2 accord but also invokes the Palestinian
people as its ultimate political authority (Article 2: "... the
people are the source of power ..."). Governments may therefore
attempt to justify sustaining relations with the new Fayyad government
out of solidarity with the Palestinian national effort -- albeit one
in crisis.
Still, in attempting this,
foreign governments now face dubious and perplexing options:
They could suspend diplomatic
relations with the Fayyad government, on grounds that it is illegal,
and deal with the elected Haniyeh government. But this might cripple
their communication with Ramallah at a critical time and put them at
odds with the US and Israel.
They could sustain diplomatic
relations with the Fayyad government, accepting its claim that the Hamas
government launched a coup, but they would then be endorsing a government
that is violating its own laws and has itself effectively pulled a coup.
They could accept the new
Fayyad government on condition that it now obey other provisions of
the Basic Law, such as gaining Legislative Council approval and/or calling
new elections. But the Basic Law doesn't allow the Cabinet to call new
elections and this new Cabinet doesn't have any legal standing to govern
anyway. (It's also hard to see how new national elections could be held
when the Haniyeh government refuses to recognize the new Cabinet and
conditions in both territories are so contrary to free and fair elections.)
They could pull a classic
diplomatic side-step by calling the situation a temporary constitutional
crisis and maintaining relations with both sides, but this tactic will
quickly bog down because present events look more like the complete
collapse of the Basic Law and its framework.
Facing this mess, they could
do a back-step: suspend formal diplomatic relations but maintain communication
with both sides, pending further developments, but what about those
formal agreements (exchange, trade, security, diplomatic representation)
they may have signed with the PA? Which side is truly representative
and to whom are they accountable?
There are other legalistic
maneuvers they could try, such as treating the PA under terms established
by the Oslo Accords or the Gaza-Jericho agreement of 1994. But none
of those documents provide for a prime minister or any of the procedures
being acted out in Ramallah.
In short, the diplomatic
landscape is now in utter disarray. The Fayyad Government has no democratic
mandate, is not operating by the very rules that establish its democratic
legitimacy, and so is only a facsimile of the 'government' with which
many of the world's states established diplomatic relations. It does
not help that the United States, an obedient Europe, and legless Arab
states have trotted up to anoint it as the sole legitimate authority.
Nor does it help to pretend that Hamas -- a broad movement with popular
legitimacy -- will simply disappear through decrees from Abbas and some
nice political theatre.
It is not clear how long
this flimsy diplomatic pretense can hold up to scrutiny by a skeptical
world. Nor is it clear what political costs foreign governments will
have to absorb if they try to play along with it -- especially when
the now-traumatized Palestinian people, in the territories and in Diaspora,
begin protesting their government's being hijacked by anti-democratic
figureheads for Israeli and US agendas. Being targeted as supporting
this pantomime government was not the goal of those governments who
recognized the PA to support the Palestinian people. As UN official
Alvaro De Soto put it in his eloquent 'End of Mission Report' this May,
'It may be better to be the one who raises questions about the Emperor's
new clothes than to be ridiculed as the naked Emperor oneself.'
Virginia Tilley
is a US citizen now working in Pretoria, South Africa. She can be reached
at vtilley AT mweb DOT co DOT za.
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