Ramallah: Palestinian President Mahmoud Abbas has ordered the formation of a constitutional court in the Palestinian territories. Issuing a presidential decree to this effect, he also appointed nine judges to the court.
The judges will be administered the oath of office by Abbas in Al Mukata’a on Tuesday, a senior Palestinian official announced.
According to the official, who requested anonymity as he is not authorised to comment on the matter, decisions of the Palestinian constitutional court will be final and binding on all cabinet decisions, parliament resolutions and presidential decrees, which normally end up as laws. The court will conduct constitutionality review of laws and decisions upon appeal and judgements of the constitutional court are final and can not be appealed against.
There have been concerns expressed in some quarters though that the new court’s jurisdiction would make it the highest authority to consider all social, political, and economic matters and it could ultimately replace the Palestinian Legislative Council (the parliament), exercise its legislative authority and assume its responsibilities, powers and functions.
The PLC, dominated by Hamas, has been paralysed and inactive since Hamas ousted its rival Fatah movement from the Gaza Strip in 2007. Israel has imprisoned a significant proportion of Hamas PLC members, further curtailing the Palestinian parliament’s ability to meet and govern.
Dr Hassan Khraishah, the Deputy Head of the PLC highlighted concerns about the parliament being overshadowed by the constitutional court. The Palestinian National Authority (PNA), he said, does not have a constitution in the first place and it is governed by the 2002 Basic Law, which has precedence over normal laws but is not a constitution. “A Palestinian institution [the constitutional court] cannot replace another Palestinian institution [the parliament],” he told Gulf News.
“The way the court president and members are chosen [by appointment] is just not the right way to do it. They should be elected by the Palestinian judges.
“Formation of a constitutional court can be seen as Fatah’s proactive step to put a new mechanism in place to choose a successor when Abbas steps down,” he said.
The Palestinian Basic Law cannot be amended except by a two-thirds majority of the PLC. According to Khraishah, that will be extremely difficult for Fatah given the current Palestinian political reality. Also the Basic Law stipulates that if the position of the Palestinian president becomes vacant, the PLC head (Aziz Dwaik of Hamas) will be declared acting president to fill the vacancy and the president’s powers and duties will be shifted to his capacity for 60 days, with the period being extendable, until a new president is directly elected by the people and takes office.
“The suspicious timing of forming a constitutional court whose main mission is to judge who deserves and who does not shows a clear power struggle within the Palestinian political arena despite the encouraging and optimistic news of a possible reconciliation coming from Doha, Qatar which is trying to help the Palestinian opposing organisations [Fatah and Hamas] to mend fences and reach a unity agreement,” said Khraishah.
“In the event of a possible Palestinian reconciliation, the PLC will be activated once again but the problem remains who will head it,” he said, adding that Fatah insists on its demand to head the PLC while Hamas sticks to its undisputed right to hold the top post. “Even if Hamas, which has PLC majority, wins this particular challenge, the Palestinian constitutional court will surely limit and block Hamas’ political activism and ambitions,” he said.