1. Introduction
Palestinian democracy is a mirror of Palestinian history–one characterized by the continued struggle for national independence, selfdetermination, and the establishment of a free sovereign state—ever illusive and yet to be achieved. During the Ottoman rule,1 Palestinians had selfadministration but not control over their political destiny. During the British Mandate, they faced the existential stress of colonialism; the subsequent rule of Egypt and Jordan in the Gaza Strip and West Bank including East Jerusalem, respectively, dashed hopes for statehood. The Palestinian body politic could not form a unified independent government. Then, the West Bank and Gaza Strip became occupied lands by Israel.
In 1993, following the signing the Declarations of Principles between the Palestine Liberation Organization and the State of Israel, Palestinians hoped the peace dividends would soon materialize and they would soon have an independent and democratic state. They aspired to end occupation and have their own sovereign state based on a two-state solution premised on the principle of land for peace. In 1994, a Palestinian interim administrative body was created, namely, the Palestinian Authority.2 Palestinians were very optimistic, and the advent of democratic rule, governance, and rule of law were on the horizon. Article II.1 of the Interim Agreement3 on elections states: “[i]n order that the Palestinian people of the West Bank and the Gaza Strip may govern themselves according to democratic principles, direct, free and general political elections will be held for the Council.” The Palestinian Basic Law, as amended, 2005 states in Article 5: “[t]he governing system in Palestine shall be a democratic parliamentary system, based upon political and party pluralism. The President of the National Authority shall be directly elected by the people. The government shall be accountable to the President and to the Palestinian Legislative Council.”
After a long struggle, peace with Israel was thought to deliver statehood, independence and self-determination, and unification of the West Bank and the Gaza Strip with East Jerusalem as the capital along the 1967 borders. The seeds were sown through the creation of the PA, albeit a semi-autonomous government. The PA was to be launched in stages of administrative powers and authorities of limited nature leading eventually and within five years to “full” independence and statehood. As such, only “functional” powers over territorial parts of the West Bank and the Gaza Strip were granted.4 The Interim Agreement of 1995 divided the West Bank into three Areas: A5, B6, and C7. Area C of the West Bank was fully retained by Israel and ruled by Israeli Civil Administration offices. The Gaza Strip8 and the West Bank were decoupled without a territorial link. Jerusalem, refugees, borders, settlements, among other issues, were left out pending negotiations over the permanent status and a comprehensive peace agreement.
The Interim Agreement created the Legislative Council as the Palestinian parliament and provided for election of the chair/president of the PA and the members of the Legislative Council. These provisions were the prelude for modern-style Palestinian democracy.
Slowly the dream started to dissipate. The five-year term agreed to in the Interim Agreement by the two sides to reach a permanent agreement and settlement of the conflict has not materialized. Today, three decades later, no end is in sight. Much political upheaval has taken place, not only within Palestine, but also between the Palestinians and Israelis, setting back the prospects for the end of conflict and testing core democratic values as a result of the national intra-Palestinian rift.
The victory of Hamas9 in the 2006 Legislative Council elections dealt democracy a major crippling blow, followed by their takeover of the Gaza Strip. Western democracies, the United States and the European Union, in tandem with Israel did not accept the results of the democratically elected Hamas. To them Hamas is a terrorist organization, so they penalized the Palestinian people by boycotting the PA. Israel used its control and management of the customs duties it collects at its borders to suspend their release over to the Palestinians. This boycott came on the heels of an already fragile Palestinian body politic which was ailing post the Second Intifada. It also led to exposing the Fatah10 Hamas ideological rift and a deep internal split ensued. The Fatah-Hamas fragmentation led each side to monopolize the decision-making in their respective “jurisdictions.” They both have used authoritarian measures to stifle dissent and shrink the space for Palestinian democracy and popular participation.
2. Democracy in the Making
The promise of peace with Israel had brought with it the hopes for end of conflict and the building of the Palestinian state. Palestinian democracy and good governance with transparency, accountability, inclusiveness, rule of law, separation of powers (executive, legislative, and judicial) were to be the quintessential ingredients of state making. The PA started by creating governing institutions, a legislative council (parliament), and a judiciary to develop a system of separation of powers including checks and balances. It prepared to hold elections and this first experience in democracy was successful: the Palestinians appeared to be moving on the right trajectory. However, democracy is not a one-off experience; rather, it is a process that has many ingredients. It entails having a government vested in the people and exercised by them, albeit through a system of representation involving free elections.11 For democracy to flourish and succeed, essential elements must be present. The basics include at minimum the following:
1. “A pluralistic system in which at least two legitimate-but-different political parties coexist.
2. A free and fair electoral process that enables the people to choose between candidates from those parties.
3. A government that operates openly and transparently, works for the good of all the people, respects its own rules, has proper checks and balances, and gives its citizens free choice and control over their lives.
4. Politically engaged citizens who support democratic principles, “fight fair,” vote regularly, accept the will of the voters, and commit to a peaceful transfer of power after each election.
5. An emphasis on preserving civil liberties and personal freedoms of both the majority and minorities.
6. A free and independent media unhindered by government interference, influence, or intimidation.
7. A rule of law in which the laws and procedures apply equally to all citizens.”12
2.1 Democracy and Palestinian-Israeli Relations
Democracy’s test in Palestine proved short-lived. Soon after its establishment, the PA started to be weighed down by the on-going occupation, and the lack of prospects for signing a comprehensive peace agreement with Israel. It became clear that the PA’s limited and functional powers and authorities could not sustain state building. The interim arrangements of the Oslo Accords, which were intended to be short lived, became prolonged and started to stifle the PA’s decision-making and policy making process and impact governance. In the agreements signed with Israel, especially the Interim Agreement, governance to a large extent remained under the control of Israel: from elections involving Jerusalem residents, to all other arrangements related to the Legislative Council), security, Palestinian police, jurisdiction, economic relations and trade, natural resources, water and the environment, banking, movement of labor, even the civil register and passport issuance, among others. This was compounded by the constant building and expansion of settlements. It soon became clear that the Oslo Accords were crippling the potential for Palestinian development and statehood.
Following the outbreak of the Second Intifada, Israel’s security establishment increased its stronghold and iron fist over the territories, including entry into Areas A and B of the West Bank. It moved to isolate Jerusalem and set in motion a system of military checkpoints dividing the West Bank into “cantons” and built the Separation Wall. It tightened the controls around the Gaza Strip and introduced a system of limited permits for movement and access. It denied access to Jerusalem, impacting the development of the occupied territories’ economies.
2.2 Democracy and National Fragmentation
Following the Second Intifada and the Fatah-Hamas schism, the Ramallah leadership started to consolidate its grip on power within the PA. President Abbas has steadily purged or constrained his political rivals, and today plays chess with the members of Fatah. President Abbas understands the weakness of the relationship with Israel. He feels a deep sense of betrayal by Hamas for forcefully removing the PA from the Gaza Strip. He fears that Fatah will not win a majority in the Legislative Council election, thus has postponed the elections even though his term ended in 2009.
President Abbas and Fatah have become increasingly unpopular by engaging in corrupt practices, ineffective governance, the lack of transparency, nepotism, trampling on the rule of law and cracking down on opposition. Basic ingredients necessary to advancing democracy have been compromised.
Hamas, whose stronghold is the Gaza Strip, did not recognize the peace accords that the PLO had signed. But slowly it has begun to moderate its views towards peace with Israel. In 2006, it ran in the Palestinian legislative elections and joined the unity government taking key posts, but was internationally isolated for not accepting their demands. In 2007, President Abbas suspended the unity government following international pressure from the U.S. and Israel. Hamas then forcefully took over the Gaza Strip and formed a de facto government.13 Israel and Western members of the international community have added fuel to the fire of the national division by recognizing the government of Abbas in the West Bank and the Hamas government in the Gaza Strip.
While Hamas rules with an iron fist, popular discontent in Gaza has been simmering for years. Large-scale protests occur from time to time. They most notably took place in 2015, 2017, 2019, and more recently July 2023. Hamas security forces repress the protests.
Today, both the West Bank and the Gaza Strip are being ruled with authoritarian practices undermining democratic principles and value systems. Such regimes of governance pose a limitation on pluralism, separation of powers, rule of law, accountability and transparency, among others.
3. Palestinian Elections
The cornerstone of any democracy is elections, yet Palestinian elections have not furthered democracy. The Palestinian Authority did hold two presidential elections in 1996 and 2005, two parliamentary elections in 1996 and 2005, and local elections in 2005, 2012, 2017, and 2021, but building a state with a government elected by the people for the people has evaded Palestinians.
According to the Basic Law, the Palestinian Authority is led by the president who is directly elected every four years. The president is responsible for nominating the PA’s prime minister14, who must be confirmed by the Palestinian Legal Council (“PLC”).
The first presidential elections brought great promise. The first president was Yasser Arafat, who was elected in 1996 with an overwhelming 88% of the vote. Following Arafat’s death in 2004, Mahmoud Abbas was elected in January 2005 with 62% of the vote. However, he has served as PA president ever since. There have not been any subsequent elections.
4. The Legislative Council
The Palestinian Legislative Council (the Palestinian parliament (“PLC”)) was established in 1996. This 88-member council was elected by Palestinians in the West Bank, East Jerusalem, and the Gaza Strip, and worked extensively to implement democratic governance in the PA.
In 2005 the PLC passed a law to increase the number of members from 88 to 132, with half to be elected using proportional representation and the other half by pluralityat-large voting. This change worked to the advantage of Hamas who, in 2006, won 76 seats out of 132 in the Legislative Council while Fatah won 43 seats.
To address the Western and Israeli boycott of the PA and to limit the powers of Hamas, President Abbas in 2007 issued a presidential decree to abolish the constituency seats with all seats to be elected from a national list. He also prohibited parties that did not acknowledge the PLO’s right to represent the Palestinian people (specifically Hamas) from contesting the election. At the time, a majority of Palestinians supported the change, while Hamas called it illegal.
President Mahmoud Abbas, who was elected in 2005 and continues to date, announced in 2021 that presidential and legislative elections would be held that spring and summer in Gaza, the West Bank, and East Jerusalem. The right of the East Jerusalem residents was set out in the Oslo Accords. In April 2021, however, just a month before Palestinians were due to go to the polls to elect a new Legislative Council, Abbas announced the indefinite postponing of elections, claiming the state of Israel’s refusal to permit elections in East Jerusalem.15 Two years on, this postponement continues, at a cost to Palestine’s voters and their rights to self-government and to democracy. Many have never voted in a national election, having turned 18 after 2006.16
4.1 Dissolution of the PLC
In December 2018, President Abbas issued a Presidential Decree to dissolve the Palestinian Legislative Council (“PLC”). Its dissolution was the result of the culmination of several factors that accumulated over a decade since the last parliamentary elections that were held in 2006 that gave Hamas a majority. This win led to a harsh boycott of the Palestinian Authority by the United States, the European Union, and of course Israel. The boycott led to a serious division between the two dominant Palestinian parties, Hamas and Fatah, and subsequent divisions left the legislative body in a state of paralysis. It created a political deadlock delivering a massive blow to the Palestinian Authority and nascent democracy.
4.2 Hamas-Fatah Ping Pong and Bickering
The step by Abbas to dissolve the PLC is legally questionable. The Basic Law does not grant the President power to dissolve the PLC, nor does it grant the PLO’s Palestinian Central Council (“PCC”) any such powers. Abbas used the emergency powers of the PCC to get political cover in the absence of legal cover to dissolve the PLC as a pretext for preparing general elections in the Palestinian territories within a year. According to the PCC, “the PLO worked responsibly when dealing with the PA’s work and institutions, monitored the elections in 1996 and 2006, and accepted the results with a positive attitude…[however], what Hamas did in 2007 when they took over Gaza contradicts patriotic morals and the ethics of national work.” In essence, by so doing, Hamas paralyzed the work of the PLC that lost its capacity to exercise its legislative and monitoring roles. In fact, the PLC was no longer active.
However, Article 113 of the Basic Law states: “[t]he Palestinian Legislative Council may not be dissolved or its work hindered during a state of emergency, nor shall the provisions of this title be suspended.” Article 47 of Basic Law states: “[t]he term of the current Legislative Council shall terminate when the members of the new elected Council take the constitutional oath.”
According to Salah Abdul Ati, new elections should be held to establish a new PLC and dissolve the current one.17 He added: “there is no Palestinian law that allows the PCC or any body to dissolve the PLC. This council [PLC] was chosen in popular general elections and could only be dissolved in the same way.”
The political analyst and journalist at the Palestinian Al-Ayyam newspaper Talal Awkal commented: “[t]he decision Abbas…made to dissolve the PLC is part of the political bickering between Hamas and Fatah. It is also related to arrangements for the post-Abbas period, in case of death.” He further explained, “[a]ccording to the Palestinian Basic law, the speaker of the PLC (Hamas leader Aziz Duwaik) takes over for 60 days while waiting for the new elections, in case the presidency becomes vacant. This is why Abbas and his movement are trying to make this option unavailable for Hamas through dissolving the PLC.”18
Dissolving the Legislative Council is an effective suspension of Palestinian democracy, governance, and rule of law especially since the PLC was already suspended back in 2007 after the effective control of Gaza by Hamas. In a democracy, through well-established democratic legislative policy, law enactments become the outcome of interaction between social and political influences. Legislation is a reflection of social needs and legal standards. Laws are issued to serve, not to advance the interests of the political elite. In Palestine, political pluralism is now absent, and the role of civil society is diminished; its voice is ignored.
5. Democracy, Law Making, and Separation of Powers
5.1 President Abbas Issues Laws by Decree
President Abbas has relied on Article 43 of the Basis Law to declare a state of necessity/emergency to exercise full lawmaking authority in the West Bank. He issues laws by decree. In fact, the scope of this Article is to issue “decisions,” not “laws,” when the PLC is not convened or in session. President Abbas, in effect, expansively read the language of this Article and relied on its ambiguous wording. In essence, this allows the President to control the executive and the legislative branches, dealing a severe blow to separation of powers and good governance. When the President issues laws by decree, the functions of having several readings of draft legislation by elected members of the legislature and the opportunity for stakeholders’/ civil society’s participation were obliterated. Between 2007 and 2022, he has issued 246 laws by decree.
5.2 Hamas’ Makeshift Legislature
In the Gaza Strip, Hamas has been maintaining a makeshift legislature that has adopted several laws. Like in the West Bank, the legislative process is being adopted in isolation from relevant stakeholders and civil society participation.
The fact that both Ramallah and Gaza issue and adopt laws without consultations is dangerous because they gravely preempt the Basic Law, rule of law, separation of powers, transparency, and they infringe on human rights in the society. Moreover, they are setting precedents for having dual sets of laws. And since 1994 the Palestinian Authority has been intent on harmonizing the laws of the West Bank and the Gaza Strip which had been based on Egyptian and Jordanian law.
6. The Palestinian Public and Society and Democracy
Public confidence in Palestinian governance structures is on the decline, and at present there is a serious crisis of legitimacy. Moreover, both Fatah and Hamas are increasingly less and less popular and public support for them is waning. The change is most noticeable among Palestinian youth, who have become increasingly alienated from Palestinian politics and the elites in Ramallah and the Hamas harsh practices in Gaza.
Palestinians are resilient but they will not accept authoritarian rule. People want to be free but have not risen against the leadership in Gaza and Ramallah. These are hard times and Fatah and Hamas need to sober up given the huge democratic deficit and alarming rise in authoritarianism from the Palestinian leaderships. According to the Economist’s 2020 Democracy Index, Palestine is now an authoritarian regime.19 Its score has declined year upon year since 2006, when it was deemed a flawed democracy.
7. Will Palestinian Democracy be Restored–Correcting Past Mistakes
Hamas and Fatah seem more intent on holding on to their own stakes and interests and less concerned with national unity to restore the fundamentals of democratic rule. There appears to be waning interest in overcoming the inherit limitation superimposed by the occupation and Western pressures to hold an election. Although there are voices in Palestinian civil society that correctly state that no meaningful democracy is feasible under occupation and elections will always be skewed as a result, elections could open the door to democratic rejuvenation. The Palestinian public, in general, wants elections and sees them as a way to provide much needed transparency and accountability and most importantly, oversight over the executive. The public wants national reconciliation.
Holding elections and having a legislature would restore separation of powers. It would limit the control of the President over the legislative process and over the judiciary, which has lost its independence given that its members are loyal to Fatah. Also, the President must consult the Legislative Council when appointing the prime minister and the council of ministers. Further, the succession of President Abbas will be achieved through election as the speaker of the PLC assumes the role when the President dies or becomes incapacitated.
Palestinians need a credible and coherent voice. Restoring democracy through elections and good governance is essential. It will be an important means of reviving popular representation while potentially reversing deepening political and geographic divisions. It will also be important to pave the way for negotiating with Israel, which claims that there is no partner and may offer a way out of the current political deadlock. While the negotiations are at a standstill, primarily due to Israeli policies and practice in Jerusalem, settlement expansion in the West Bank, and the tight seizure of Gaza, some major responsibility lies with President Abbas and Hamas. They have deliberately weakened Palestinian national unity to protect their respective stronghold on power which has skewed the power dynamic in Israel’s favor.
8. Conclusion
Palestine was the earliest and most successful experiment in Arab democracy, long before the advent of the Arab Spring. However, since the 2006 elections, Palestine’s democratic fabric has withered. Palestinians in both Gaza and the West Bank also suffer from diminished transparency, accountability and good governance, and even suppression of freedom of expression. The democratic atrophy of the nascent Palestinian state – combined with growing popular frustration, shrinking diplomatic horizons for achieving an end to Israel’s occupation, and humanitarian pressures in Gaza – is feeding an increasingly volatile situation in Jerusalem, the West Bank, and Gaza Strip.
Today, there are no institutional mechanisms able to manage the upcoming PA leadership transition given that Israeli policies and intra- Palestinian splits for now preclude legislative and presidential elections. Meanwhile, Abbas’ marginalization of the PLO’s Executive Committee and Fatah’s Central Committee, and concentration of power within his person, further challenge the ability of the PLO and Fatah to ensure a smooth leadership transition.
Holding inclusive elections and achieving political reconciliation would be extremely welcome and urgent. Israel and the West have to accept the results of the elections. They cannot feed internal Palestinian nor stymie Palestinian democracy.
The political risks for Fatah and Hamas are high as both think of zero-sum equations as opposed to the national interest and the unity of the nation whose external political challenges are immense. The Palestinian public interest distrusts both and wants a change. The foreseeable future is not promising given the power dynamics with Israel. Looking inwards seeking a genuine shift towards democratic rule and inclusive pluralism would reestablish the much-needed credibility and legitimacy of the Palestinian Authority. The Palestinian Authority’s international standing would gain much from restoring good governance, rule of law, and a good plan for President Abbas’ succession through democratic elections.
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1 The Palestinian administrative geography under the Ottoman was divided in Jerusalem, Gaza and Nablus.
2 The Gaza-Jericho Agreement; the Agreement on Preparatory Transfer of Powers and Responsibilities signed at Erez on August 29, 1994 (hereinafter “the Preparatory Transfer Agreement”); and the Protocol on further Transfer of Powers and Responsibilities signed at Cairo on August 27, 1995 (hereinafter “the Further Transfer Protocol”).
3 The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Sept 28, 1995.
4 Ibid.
5 In Area A, the Palestinian Authority has full civil administrative responsibilities—running courts, schools, municipal governments, and other services—and is also responsible for security. Area A is comprised of about 18% of the West Bank and includes eight Palestinian cities and their surrounding areas, including Nablus, Jenin, Tulkarem, Qalqilya , Ramallah, Bethlehem, Jericho and 80 percent of Hebron.
6 In Area B, the Palestinian Authority has full civil control, while joint Israeli-Palestinian patrols maintain internal security. As of 2013, Area B is made up of about 22% of the West Bank. This area includes roughly 440 Palestinian villages and their surrounding lands.
7 Area C makes up over 60% of the West Bank. Israeli military government exercises exclusive control of security and civil administrative responsibilities, including planning, construction, and law enforcement. The land has largely been allocated to Israeli settlements, military bases, and bypass roads, which affects the daily lives of the nearly 300,000 Palestinians living within the Area and divides the PA-controlled areas into dozens of tiny territories. Furthermore, Area C contains the majority of natural resources and open spaces in the West Bank, yet 99% of the land is excluded from Palestinian use.
8 In the Gaza Strip, Area A is under full civil and security control of the Palestinian Authority. In 2005, Israel unilaterally withdrew from settlements in Gaza maintained full security around Gaza’s sea, land, and air. It also created a ripe environment for Hamas to take full control of the Gaza Strip while Fatah’s powers their diminished.
9 Hamas Resistance Movement is a Palestinian Sunni-Islamic fundamentalist, militant, and nationalist organization. It has a social service wing, Dawah, and a military wing, the Izz ad-Din al-Qassam Brigades.
10 Fatah, formerly the Palestinian National Liberation Movement, is a Palestinian nationalist and social democratic political party. It is the largest faction of the confederated multi-party PLO. Mahmoud Abbas, the President of the Palestinian Authority, is the Chairman of Fatah. Fatah is generally considered to have had a strong involvement in revolutionary struggle in the past and has maintained a number of militant groups. Fatah had been closely identified with the leadership of its founder and chairman, Yasser Arafat, until his death in 2004, when Farouk Kaddoumi constitutionally succeeded him to the position of Fatah Chairman and continued in the position until 2009, when Abbas was elected Chairman.
11 http:// www.bing.com/search?q=definition+of+democracy&aqs= edge.0.69i64i450l8.787077564j0j4&FORM=ANAB01&PC=LCTS.
12 Democracy Countries 2023 (worldpopulationreview.com).
13 Several talks, declarations, and agreements were held and concluded between Fatah and on reconciliation, but so far, no concrete results starting in 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2016, 2017, 2020, or 2022.
14 To limit Arafat’s powers as the President of the PA and head of the cabinet, the PA moved to amend the Basic Law in 2003 and created the office of the prime minister to divide and share powers and establish a more democratic system.
15 European Council on Foreign Relations, ‘Mapping Palestinian Politics.’ https://ecfr.eu/special/ mapping_palestinian_politics/elections-2021/.
16 Husseini, Hiba: “Participation of East Jerusalem in Future Palestinian Parliamentary and Presidential Elections: Challenges and Policy Options,” Critical Policy Brief, Number 3/2023, Palestinian Center for Policy and Survey Research, July 2023.
17 Salah Abdul Ati, an expert in Palestinian law and Gaza director of the Palestinian Center for Policy Research and Strategic Studies - Masarat.
18 https://www.al-monitor.com/originals/2018/10/palestinian-legislative-council-abbas-dissolutionhamas.html#ixzz89i6rxkI8.
19 Democracy Index.