Joharah Baker: The World of Legal Loopholes

By Joharah Baker

Even as we continue to hope beyond hope that our leaders will come to their senses and see that internal disunity will only lead us down a path of destruction, more statements are made and decrees issued that indicate the contrary.

It is hard to pinpoint “who started it” because the Fateh-Hamas situation has become more like the old “chicken or the egg” adage, a vicious and endless circle of distrust, mutual accusations and counterproductive behavior.

Over the last few days, our leaders have decided to take yet another step moving them further from a unified national front. President Mahmoud Abbas took it upon himself to restructure the Palestinian Elections Law, all of course, within a framework he claims is legal. According to the new amendments, the people will only be able to vote for national lists as opposed to the previous elections where the populace voted for both national and district lists. The national lists will be comprised according to proportional representation.

During the January 2006 elections, Hamas won the majority of votes from the district lists but only barely slipped by in the national lists.

Furthermore, Abbas has decided that any candidate running for the presidency in those elections will have to receive an absolute majority in order to take the post. Otherwise, the elections will be a run-off between the two candidates with the highest votes.

Most significantly, the decree stipulates that Legislative Council and presidential candidates must recognize the PLO as the sole and legitimate representative of the Palestinian people and accept previous accords signed between the PLO and Israel.

This move can only been seen as part of the ongoing tug-of-war for power between Fateh and Hamas. The latter, which is holding on to the Gaza Strip tooth and nail despite the dangerous repercussions this is having, has shot down the decree as “illegal and illegitimate.” Hamas spokesperson Sami Abu Zuhri said the decree was a violation of the Palestinian Basic Law and that his movement would not accept it.

The movement claims the decree is an attempt by Abbas to further undermine Hamas’ authority in Gaza and push them out of the Palestinian governing scene as swiftly and as thoroughly as possible.

This is not an unreasonable assumption given that Hamas is not part of the PLO and therefore would have to radically amend its political platform to become eligible to run for elections. Furthermore, given that Hamas does not officially recognize the right of Israel to exist, the decree’s condition of accepting previous agreements signed between Israel and the PLO is highly unacceptable to the Islamic movement.

Should Abbas be able to cement this new elections law, he knows that Hamas would be up against an enormous challenge in terms of running and actually winning the majority of votes to retain their power in the PLC. Also, if Hamas chooses to run for the presidency, according to the new stipulations, it would be very unlikely that the movement would be able to secure an absolute majority for any of its candidates.

While it is understandable why Hamas would reject this new decree given that they still insist their government is the legitimate and elected authority, it is equally baffling as to why Hamas has not been making more efforts to mend the bridges between it and Fateh. Clear evidence of this is last week’s scuffles after Friday prayers in Gaza City and Rafah when Fateh protestors prayed in public arenas in protest of what they said was Hamas’ politicization of the mosques and their continuous persecution, arrest and torture of Fateh cadres.

The day turned extremely violent, with Hamas-backed Executive Forces beating Fateh demonstrators chanting anti-Hamas slogans with nightsticks and opening fire. Over 20 people were reported injured in the melee.

Again, instead of trying to smooth out the growing fissions between the two leaderships, blood seemed to boil even more. On September 4, deposed Prime Minister Ismail Haniyeh announced that all prayers conducted in public places would be prohibited because they only incited towards “violence and chaos.” Earlier, Hamas officials announced that anyone who is proven to have participated in “acts of chaos and disorder” would be put on probation and made to pay a bond, which would be returned to the defendant once their name was cleared.

These new measures are certainly not directed towards the average “Joe” on Gaza’ streets but are a clear message to the resurging Fateh powers in the Strip. According to Fateh sources, Hamas has been ripe and ready to beat down any Fateh loyalist who dares to defy Hamas’ authority in Gaza, stories of arrests, raids and brutality at the hands of Hamas operatives occasionally surfacing in the media.

Hamas has also not held back on its accusations, claiming that the Fateh-led security services continue to hunt them down in the Wes Bank. According to a statement released by the movement on September 4, there have been over 1,000 attacks on Hamas members and institutions in the West Bank over the past 80 days, including 639 arrests by PA security forces.

So, it goes without saying that any hopes the internal situation would take a turn for the better have been dashed over the past few days. While the Abbas government continues to have the full backing of the United States and its western allies, it seems unlikely that Hamas will be able to sustain its power for much longer. Still, with such ongoing mutual contempt continuing to fester, enough damage can be done in the process.

What would be comical if it were not so tragic is that both sides are calling for the same thing. Hamas continuously claims that it is committed to the unity of the West Bank and Gaza Strip, insisting that no state can be established without Gaza. Abbas is singing to the same tune. He also says the West Bank and Gaza is one unit and elections will not be held – early or otherwise – until the two sections of Palestine are reunited.

However, as the old saying goes – actions speak louder than words, and the greatest fear today among Palestinians is that the split between the West Bank and Gaza will become so deep that it will eventually create yet another harsh reality on the ground. The Palestinians cannot afford another division and certainly will not survive further isolation. This is why unilateral decisions can only be counterproductive, whether it is the leadership in Gaza or that in the West Bank who are making them.

– Joharah Baker is a Writer for the Media and Information Programme at the Palestinian Initiative for the Promotion of Global Dialogue and Democracy (MIFTAH). She can be contacted at (  

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