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The Legal Framework Of Political Party Registration In Palestine
by Ammar Dweik
The issue of the legal organization of political parties in Palestine is a problematic one from both a legal and a political standpoint. This is the main reason why the PLC is displaying considerable indifference with regard to the matter.
The failure to organize the political parties in an appropriate manner is due to several factors, of which the following are probably the most important:
The above-mentioned reasons resulted in some kind of consensus being achieved between the ruling party and the opposition parties as a result of which the legislative and legal organization of the work of the various parties was frozen. As things stand at present, the Palestinian legislator prefers to stand silent and deal with the matter in a humble manner through some of the provisions included in the Elections Law.
The fact is, the unique Palestinian situation and the Israeli occupation should not stand as an obstacle in the path of finding creative ways to deal with this unique situation and at the same time establish a democratic system. Not only has the absence of appropriate legislation, which is blamed on the occupation, become a cover up for the continuation of undemocratic practices by the factions, it has also resulted in major financial burdens for the Palestinian taxpayer.
With legislative elections just around the corner, and in light of the fact that the PLC has tended to adopt a mixed electoral system, which involves forming electoral lists at the national level, a need arises to organize the work of the political parties in a way that guarantees the forming and organizing of partisan electoral lists in an efficient, democratic manner. There is also a need to establish legal mechanisms that are able to guarantee the effective monitoring of the funding of the parties that intend to participate in the elections.
This paper focuses on the current legal situation vis-à-vis the registration of political parties and how the Central Elections Commission deals with this particular matter. It also looks at the monitoring of the financial aspects of the work of the political parties in light of the most recent presidential election experience (9 January 2005) as well as the manner in which the new draft Elections Law deals with the political parties, especially in terms of registration.
2- The legal framework of political party registration
Democratic countries vary in terms of the degree to which there is legal organization and legislative intervention with regard to their respective political parties. Indeed, the democratic legal system varies within this framework between systems that tend to move towards stringent legal organization that interferes in many aspects of the work of the parties and those that do not intervene in the work of the parties as long as they abide by the law and public order. A good example of the former type of system would be the one found in Germany, which, based upon Germany’s experience with the Nazi Party, is characterized by detailed laws pertaining to the work of the various political parties. As for the latter type of system, a good example would be that found in the United States, which does not have a special law to organize the work of the political parties but instead, general legislations that apply to everyone, including the parties.
In Palestine, there is no clear legal framework to govern the work of political parties. There are, however, general texts within the Basic Law and some pieces of relevant legislation, such as the Elections Law.
The Palestinian Basic Law considered the forming and joining of political parties a political right. Article 26 of the Basic Law determined that "Palestinians shall have the right to participate in the political life individually and in groups. They have the following rights in particular: 1. To establish and join political parties in accordance with the law.”
In spite of the fact that the Basic Law transferred the issue of forming and joining political parties to the law, the PLC did not organize the matter and failed to issue a relevant law. Worthy of mention is the fact that there was an attempt, in 1997, to legislate a law relating to political parties; the PLC discussed a draft law pertaining to political parties submitted by the Council of Ministers and approved it in the general reading but then failed to follow it up. In order to fill the legislation gap related to political parties, the Elections Law No. 13 of 1995, which was one of the first pieces of legislation to be initiated by the PNA, tackled the issue of registering the parties not only at the Central Elections Commission but also at the Ministry of Interior.
Although the electoral system adopted in the Elections Law is a majority system based on individual nomination, it allows the political parties to nominate candidates to run in the elections under the name and slogan of the party concerned. To organize the participation of the parties in the elections, the law stipulated a series of measures to organize the registration of the parties and their subsequent participation (see Election Law, Part V: Electoral Process, Chapter 3: Partisan Entities, Articles 48-53). Based on the provisions found therein, the Central Elections Commission developed a system of procedures, rules, and requirements for registering the partisan entities.
We notice that Article 48 of the Elections Law authorizes the Ministry of Interior to register the partisan entities and issue them with registration certificates and that it also requires that the Central Elections Commission keep a special register in which it documents the names of registered partisan entities. Article 49 of the same law, meanwhile, allowed partisan entities to submit their registration applications to the Elections Commission as of the date when the provisions of the law came into effect. It should be noted here that Article 53 (“Appeals against the rejection of registration”) of the law allows any political party that is rejected by the Central Elections Commission to appeal against the decision at an appeals court that deals with cases relating to elections.
The provisions mentioned in the Elections Law tackle only the issue of registering the partisan entities. They do not specify, for example, the conditions that the parties have to fulfill in order to be considered a party, how a party is administered, the issue of funding, how a party can be dissolved or merged with another, or membership conditions and various other matters.
The articles of the Elections Law, although they talk about the registration of parties or entities, do not cover the formation of new parties. Article 48 (“Registration of partisan entities”) stipulates as follows: “Any partisan entity seeking to participate in the elections must register as such before the Minister of Interior,” while Article 49 (“Requirements for the registration of partisan entities”) says that,
“1. To be registered as such, partisan entities must submit a written application containing the following:
It furthermore states that the application for registration must include certain documents.
The above implies that as far as the law is concerned, registration is the only condition for participation in the elections and not a condition for the emergence of the party; in other words, the registration process confirms the existence of the party but does establish it.
It is also clear in the law that registration is for the temporary purpose of participating in the elections, as evidenced by clause 3 of Article 49, which says, “Applications for registration shall be submitted to the Central Elections Commission from the entry into force of this Law until 6 days before the end of the period for nomination of candidates fixed by the Presidential Decree calling the elections, according to Article 38.2 of this Law. No request for registration shall be admitted after the end of this term.” The provisions were clearly meant to organize the registration process for election-related purposes only rather than the process of registering the parties in general.
The definition of ‘partisan entity,’ as far as this particular law is concerned, is not limited to the political parties but is in fact a broader definition that includes any bloc of candidates wanting to run in the elections. The law defined a partisan entity as follows: “Any political party, coalition of parties or grouping of electors which is registered before the Minister of Interior with a specific name and symbol in order to nominate candidates and to participate in the elections under that name and symbol” (Part I: General Provisions, Chapter 1: Name and Purpose of the Law, Article 1). The definition here of a partisan entity, therefore, is any group of candidates who decide to run in the elections as one bloc, regardless of whether or not they constitute a political party.
It should be noted that the PLC-issued Local Councils Election Law of 1996 does not include any provisions pertaining to the partisan entities. In fact, it fails to mention the partisan entities at all, be it in regard to registration, the naming of candidates, or the monitoring of elections.
3- Procedures to register and accredit the political parties
When the current Elections Commission assumed power on 27 November 2002, it was not given any files by the previous Central Elections Commission, which had supervised the election process in 1996; there are therefore no papers or documents relating to the accreditation of the parties that participated. Even though the Elections Law stipulated that the Elections Commission had to set up the regulations needed to ensure that its various provisions were adhered to, the former commission had failed to define any measures or regulations pertaining to the registration or accreditation of the political parties.
The Elections Law also stipulated that the partisan entities that registered at the Ministry of Interior had the right to nominate their candidates at the Central Elections Commission and to participate in the elections under the name and symbol or slogan of their choosing. In addition, it established a group of procedures and requirements for the registration of the partisan entities.
Since the law stipulated that the voting process should be subject to local and international monitoring, before the registration of voters began on 4 September 2004, the new Commission began working on a series of regulations and procedures based on the existing Elections Law. These were meant to explain the mechanism employed in registering the political parties, the mechanism used in appointing agents to the parties, and how the parties could be accredited by the Commission . The Commission even prepared special application forms for all of the above cases.
In August 2004, the Commission announced in the local newspapers the opening of the accreditation process for accrediting the partisan entities. Several partisan entities submitted applications to be accredited and participated in the registration process as well as in the election process, including by submitting the names of the agents who would monitor it.
The basic condition with regard to the endorsing of a partisan entity by the Central Elections Commission according to the Elections Law and regulations and measures set up by the Commission is that the partisan entity must be registered at the Ministry of Interior. The law came up with some simplified conditions relating to the registering of an entity at the Ministry. It stipulates in Article 52 (“The decision”), for example, that the Ministry “shall release its decision, whether admitting or rejecting the registration, within 3 days from the submission of the application” and that an application is automatically considered approved if the Ministry fails to issue a decision rejecting it within five days of it being submitted.
According to clause 2, Article 49 of the law, any party wishing to register itself must submit the following documents:
“a. A copy of the entity's statutes signed by its President or Secretary General;
b. A written statement, signed by the entity's representative, affirming that the entity does not advocate racism.”
The partisan entity does not have to meet certain objective requirements; all requirements are mere formalities pertaining to the submitting of documents and papers.
Article 51 (“Specifying the reasons for the refusal”), meanwhile, stipulates that if the Ministry of Interior refuses to register a certain partisan entity, it has to state the reasons for its rejection in detail. The law mentions the possible reasons, though again, they have more to do with formalities rather than objectives; for example, the law makes no mention of an application being rejected because the partisan entity that submitted it is against, for example, democracy.
The following are the possible reasons mentioned in the law:
- The application does not meet the conditions stipulated in Article 49 (“Requirements for the registration of partisan entities”) of the law; these conditions pertain to the submitting of names and documents and information concerning the party, such as the name of the secretary general and his address, and the submitting of a written statement, signed by the representative of the partisan entity, confirming that it does not advocate racism.
- If the application falls under the provisions of Article 50 (“Refusal of registration”) of the Elections Law; in other words, if it is proven that the statements in the application are not accurate, if the application is submitted after the closing date, or if the partisan entity requests the endorsing of a name or slogan that belongs to another partisan entity - even an unregistered party or political organization that is nonetheless known in the region - or one that suggests that it belongs to the PNA.
The law established a clear registration mechanism, one according to which the partisan entity has to register at the Ministry of Interior and then at the Central Elections Committee. The major dilemma lies in the fact that there are no registration measures at the Ministry of Interior, which has no instructions pertaining to the way in which it should deal with the political parties; although there is a section that is supposed to deal with the parties, it is currently inactive and basically frozen and does not conduct any serious follow up. There is therefore no clear registration process, and registration is based upon a presidential decision or the fact that all PLO factions are considered registered factions.
Despite the details mentioned in the Elections Law regarding the registration of partisan entities at the Ministry of Interior, practically speaking, the Ministry has neither regulations nor even application forms relating to registration and deals with the matter, as mentioned above, according mainly to presidential decisions. For example, the Ministry, upon the instructions of the late President Arafat, considers all nine PLO factions registered factions in spite of its not possessing files relating to a single one of them. It registered, for example, the Islamic Salvation Party and the Green Party simply because the late president ordered it to do so. The accreditation letter issued by the Ministry to the two parties in question stated the following: “It has been decided to accredit the party on a temporary basis until the issuing of the law pertaining to the parties.” This statement implies that the Ministry of Interior does not consider the provisions included in the Elections Law adequate in terms of party registration, and it is for this reason that the accreditation granted to the Islamic Salvation Party and Green Party is considered temporary.
In another case, i.e., that of the Palestinian National Initiative, the founders of the party (Dr. Haidar Abdul Shafi, Dr. Mustafa Barghouthi and Ibrahim Daqqaq) sent a letter to Hakam Bal'awi, the Interior Minister at the time, expressing their wish to establish a party, even though the letter was presented on 5 August 2004, some two years after the party was formed. The Interior Minister explained in his own handwriting that he did not object to the participation of the National Initiative Party as election observers. Based on the clarification from the Minister, the Central Elections Commission said that this was one form of registration at the Ministry of Interior and thus agreed to accredit the National Initiative Party as a partisan entity at the Commission once it had met all the formal requirements stipulated in its regulations.
With regard to the factions outside the framework of the PLO, such as Hamas and the Islamic Jihad, the Commission sent a letter to the Interior Minister on 7 August 2004, seeking clarification concerning their legal status. After failing to receive a response, the Commission decided that the factions were PLO factions and that, should they submit an application form, the same regulations would apply.
The partisan entities registered at the Central Elections Commission fall into three basic categories, based on the way in which they are registered:
During the nomination period for the post of President and following the Commission’s announcement of the preliminary list of candidates, which included three candidates from partisan entities - Mahmoud Abbas (Fateh), Bassam As-Salhi (Palestinian People's Party), and Taysir Khaled (Democratic Front for the Liberation of Palestine) - one citizen submitted on 4 December 2004 an appeal against their nomination because the partisan entities of those candidates were not registered at the Ministry of Interior according to the law. The Commission responded on 8 December 2004, saying it considered the partisan entities registered at the Ministry as documented in a letter from the Interior Minister to the Central Elections Commission on 2 August 2004, which the Commission considered adequate proof that the parties were registered. Based on this, the Commission rejected the appeal. The appellant then took the case to the Court of Appeals dealing with issues relating to elections, but the appeal was once again rejected and the decision of the Commission confirmed, which means the registration of the three individuals was consolidated by a judiciary decision.
So far, the number of partisan entities registered at the Central Elections Commission is 13:
The Elections Law allowed the formation of party coalitions. Worthy of mention here is the fact that clause 1 d) of Article 25 (“Claims against decisions of the Central Election Commission”) referred to the fact that the Central Elections Commission’s “decision about the registration of the symbol or logo of a political party, coalition of parties, or grouping of electors” is among the decisions subject to appeal.
4- Financial monitoring of the parties
There is no specific official party authorized to conduct financial monitoring of the parties. The only text that tackles the issue is that in clause 4 of Article 93 (“Financing of the elections”) of the Elections Law, which says “Every partisan entity participating in the elections and every elected candidate shall submit to the Central Election Commission, within 20 days from the announcement of the final results, a detailed report about its funding sources and its expenditures during the electoral campaign.”
The relevant article forces every party that participates in the elections to present such a financial statement regardless of whether their candidate wins or not, though it does not force independent candidates who do not win to do the same thing. Therefore, the Palestinian People's Party and the Democratic Front for the Liberation of Palestine both submitted financial statements regarding their participation in the second presidential election even though their candidates did not win. In short, the role of the Central Elections Commission vis-à-vis financial monitoring is one connected to the funding of the election campaigns but not of the party in general.
The aim of submitting a financial statement is to give the Central Elections Commission a chance to confirm that the party involved has not violated the provisions of Article 95 of the Elections law and that it has not received financial support from foreign or external sources or from the PNA.
Due to the absence of a party authorized to monitor the funding of parties and the fact that there are no provisions forcing the parties to reveal their accounts or keep special accounts that are subject to auditing, it is extremely difficult for the Central Elections Commission to validate the financial statements it receives. For example, the financial statement of the campaign of candidate Mahmoud Abbas (Abu Mazen) shows that he received US$1 million from the Fateh movement, while the financial statement of candidate Bassam As-Salhi shows that he received a significant amount of money from the Palestinian People's Party. The financial statement of candidate Mustafa Barghouthi, meanwhile, shows that he received an amount of money from the Initiative Party and another amount from the Popular Front. The Central Elections Commission does not have the legal tools to check the validity of these statements, which is why rather than perform any effective monitoring role, it simply takes the financial statements it receives at face value.
The Central Elections Commission is currently working on establishing a more detailed system of monitoring the funding of election campaigns. Any party or independent candidate that runs in the elections will consequently have to open a special bank account for their campaign funding and prove that their election campaign spending involved only money taken from that account, in part, by submitting financial reports signed by authorized auditors.
5- The participation of parties in the elections
One cannot read the Parties Law in isolation from the Elections Law and without taking into account the electoral system, the shape of which has a direct impact on the extent of the influence exerted by the various political parties.
The Elections Law is not based on lists and proportional representation but on individual voting, which means that there is the possibility of having independent candidates and that voters can choose the candidates they want without being restricted by a certain list. Furthermore, it implies that the candidates who receive the highest number of votes win regardless of the ratio and that candidacies are based on electoral constituencies.
In the last election process, which took place in 1996, a group of parties participated through naming their candidates and forming electoral blocs; these were subsequently treated in the same manner as individual partisan entities.
The parties that participated in the 1996 elections were as follows:
As for the blocs that participated, they were as follows:
Although the law - in its general trend and with regard to the electoral system - does not support the political parties, it gave some privileges to the registered partisan entities, including the following:
The law authorizes the Central Elections Commission, which it defines as the “supreme organ which conducts and controls the elections” (Article 22), to accredit agents of partisan entities in order to enable it to monitor the elections process. The Central Elections Commission has thus established a system for endorsing the agents of partisan entities, defining the conditions and the means of applying them as well as mechanisms for handling the applications, endorsing them, and issuing the agents with special identification cards. The Central Elections Committee also established a code of conduct for the agents in order to organize their work and define their roles and responsibilities during the monitoring process. The regulations reflect the nature of the relations between the agents, the parties, and the employees working in the registration and polling stations and ensure that the work of the agents will not be limited to monitoring and gathering information concerning the election process but will also involve their being able to express their comments and complaints concerning any violations, including procedural and administrative violations that occur during registration, polling, or sorting.
The following schedule shows the number of agents accredited by the Central Elections Commission according to the partisan entity:
The political parties that participated in the last elections benefited in several ways as a result of their participation, including in the voter registration process. Their participation served, for example, as an important tool in terms of organizational mobilization, the gathering of supporters, the activating of cadres, and the measuring of the strength and size of the faction.
Even the movements that boycotted the presidential election and did not participate, such as Hamas, played an active role in terms of the voter registration process. Hamas, for example, participated in monitoring the registration process, organizing itself and registering as many followers and supporters as possible, then issuing at the end of the registration process a detailed report, which it subsequently submitted to the Commission.
The voter registration process and the presidential election undoubtedly contributed to the reinforcing and strengthening of the organization and mobilization role of the various parties. It also raised the overall standard of the election process, especially when it came to the comments the parties made regarding the various violations, thereby giving the Commission space to rectify procedural and administrative mistakes and to ensure that detected violations were dealt with in the appropriate manner. The participation of the parties therefore served as an additional guarantee with regard to the integrity and neutrality of the election process.
The basic difference between a monitor (from an entity or association) and the agent of a party lies in the fact that the monitor is supposed to be representing the interests of the people, his or her basic goal being to ensure the integrity of the election process, so that the masses can have confidence in their representatives. The agent of a party, on the other hand, represents his or her party, which means that the ultimate goal as far as the agents are concerned is to give the party assurances concerning the integrity of the election process and to make sure that it participates in an honest and fair way, along with the other parties. This means that the agent is not neutral and has the right to propose procedural amendments to the Central Elections Commission, while the monitor is neutral and does not interfere in the process, with only the Elections Commission that sends the monitor having the right to make comments. Moreover, an agent is entitled to sign the polling statement on Election Day.
6- The political parties in the new draft Elections Law
The new draft law, which was passed in the first reading, failed to refer to the accreditation of partisan entities. Unlike the current law, which established a certain mechanism for endorsing the partisan entities, the draft makes no mention of a mechanism to register the political parties or accredit their agents. Basically, the new draft does not define the partisan entities or refer to any measures to be taken by the Central Elections Committee but simply points to the existence of electoral lists, which can be parties or coalitions of parties or lists of candidates.
The new draft refers to the political parties in several places. Article 3, for example, says, “The electoral list consists of a party or coalition of parties or group of persons and is formed for the purposes of elections provided it meets the candidacy conditions according to the provisions of the law."
Like the current law, the new draft exempts the candidates of parties from submitting signatures to support their candidacy applications. Article 15 says, “Each candidacy application should be attached to a list showing the names and signatures of three thousand people who are eligible to vote. The lists and parties accredited according to standards are exempted from this." Although the new draft law mentioned in this article that there are standards to be followed with regard to the accreditation of the political parties, it failed to explain what those standards are.
The final reference to the political parties comes in Article 15 of the draft law, which states, "The candidates of parties and electoral lists in the constituencies elections shall be treated as independent candidates; voting shall be for the individual and not for lists; the voter has the right to choose the candidate he wants from various lists or from independent candidates."
With regard to financial monitoring, the draft law repeats the provisions included in the current law concerning the ban on foreign or external funding. It also, however, added to the few provisions mentioned in the current law a ceiling for election campaign spending, though it failed to provide any details concerning the mechanism to be employed in monitoring spending. The new draft also fails to provide any details concerning the issue of party funding from the Authority, although it places a ban on receiving any money directly from the government.
It is clear from the presentation that there is no clear legal framework to govern the work of the political parties, not when the provisions found in the Elections Law focus on procedural steps to facilitate the participation of the existing factions. The law does not impose any objective conditions or requirements, such as the holding of primaries, the adopting of a transparent financial system or open membership system, or the need to run the party in a democratic manner and hold regular, organized, general elections.
The weaknesses found in terms of the legal organization of the work of the political parties are not helped by the presence of occupation and the fact that there is a large Palestinian Diaspora. Generally speaking, one can say that the situation here is similar to that in some of the democratic countries, which tend to refrain from interfering in the work of the political parties as long as they work within the law.
In spite of the existence of occupation, it is clear that the de facto presence of a Palestinian authority and of a desire on the part of both the leadership and the Palestinian people to hold regular elections entails having a more detailed legal framework than that provided by the draft law currently under discussion in the PLC. With the adoption of a mixed elections system, there is furthermore an urgent need to determine the means of choosing the lists and to define the order in which candidates are listed.
Until a revised Elections Law is issued, its absence should not prevent the parties and factions from organizing internal elections and organizing their membership, funding, and administration in as transparent a manner as conditions allow. Indeed, the best solution could be for the parties to organize their internal conditions themselves, rather than be forced to do it.