Middle East:The senior lawyers who wrote the interim Palestinian constitution say President Mahmoud Abbas exceeded his powers in appointing an emergency government to replace a Hamas-led cabinet without parliamentary approval.
The Palestinian constitutional lawyer who led the framing of the Basic Law accused some political leaders of "destroying" its foundation and expressed dismay at how western powers responded to the free election of a Hamas government headed by the prime minister, Ismail Haniyeh, by imposing a crippling boycott.
Mr Abbas's office had no immediate comment, but a spokesman for his Fatah party said at the weekend that the president's word was law as long as Hamas's "mutiny" paralysed parliament.
Washington, which imposed the boycott when Mr Haniyeh took office in March 2006, embraced as "legitimate" the cabinet Mr Abbas appointed after Hamas routed his Fatah forces in the Gaza Strip on June 14th. The EU also "emphatically" backed Mr Abbas's actions as "in keeping with the Palestinian Basic Law".
In their first public comments since Mr Abbas formed a new government, Anis al-Qasem, who oversaw the writing of the Basic Law, and fellow independent Palestinian constitutional lawyer Eugene Cotran said the document whose drafting they began more than a decade ago gave Mr Abbas the power to dismiss Mr Haniyeh.
But, they said, it did not grant him the power to appoint a new government without legislative approval, or the right to suspend articles of the Basic Law, as he did last month to spare new premier Salam Fayyad the need to win a vote in parliament.
Appointed by Yasser Arafat, Mr Qasem said the president's powers were "intentionally and explicitly very restricted".
However, Azmi Shuaibi, who sat on a parliamentary committee on the Basic Law, defended Mr Abbas's power to suspend articles. He said Article 113, which stipulates that the legislature "shall not be dissolved or suspended during the emergency situation, nor shall the provisions of this chapter be suspended", meant he "can suspend articles in other chapters".
Mr Qasem disagreed, cautioning against making "such wild implication . . . particularly where the implication could easily lead to dictatorship - the system that the Basic Law was intended, in all its provisions, to guard against".
"They are obviously looking for the slimmest argument to build a mountain on and dry the ocean. They are destroying the foundation on which the Basic Law is laid," he said.
Mr Qasem and Mr Cotran said the Basic Law further prescribes that Mr Haniyeh's dismissed unity cabinet, which included Abbas's secular Fatah faction, remains the caretaker administration until Mr Abbas secured parliamentary approval for a new government.
"What is clear is that . . . the Haniyeh government doesn't fall during the period of an emergency," Mr Cotran said.
Mr Qasem said that under Article 78, "the dismissed government would continue to run the affairs of government temporarily as a caretaker government until the formation of the new government in the manner provided by the Basic Law".
He noted Article 79 stipulated "neither the prime minister nor any minister shall assume his office except after a vote of confidence" from the legislature. The Basic Law has no specific provisions for an "emergency" government, he added.
The law says a presidential emergency decree lasts 30 days, extendable with parliamentary approval. But Mr Cotran said: "That doesn't mean that he can form a new government . . . Ruling by decree doesn't mean he can suspend or change the constitution."
Fatah spokesman Jamal Nazzal was quoted on Palestine Radio saying the Basic Law does not limit how often the president can declare a state of emergency, so it can be extended "as long as the mutiny which brought that situation about continues".
- (Reuters)