The Legality of a Referendum and Options for a Way Out


On 20 June 2006, the Palestinian Legislative Council (PLC) will vote on the legality of a national referendum proposed by Palestinian President Mahmoud Abbas. Because the 18-point prisoners’ document-turned referendum poses a threat to both Abbas and the Hamas government, both sides are willing to explore a second option, one which will end the financial and political isolation of the Palestinian Authority (PA) while preserving the domestic authority of both.

The Referendum and the Palestinian Basic Law

There is no article in the Basic Law which allows or prevents conducting a national referendum. Proponents and opponents of the scheduled 26 July 2006 referendum use the absence of such an article to argue their case.

According to PLC Deputy Speaker Hassan Khreisheh, an independent lawmaker representing the Tulkarem District, in order for the referendum to be considered legal two steps must be taken by the PLC. First, the legislature must draft a bill which is then sent to the President for ratification. Second, the PLC must identify/create and authorize an institution that will carry out the referendum. Such an institution would receive its mandate from the PLC just as the Palestinian Central Elections Committee (CEC) was created and given its mandate by the PLC. Khreisheh noted that the current referendum debate could have been avoided if the previous Fateh-dominated PLC had been successful in its endeavor to draft a referendum bill.

Hamas’ Gamble

Given its majority in the PLC, Hamas can easily vote that the referendum, without an existing law, is unconstitutional and thus the outcome of the vote on it would be irrelevant. However, once the PLC renders such a vote the government must implement the decision and prevent a referendum from taking place. This, according to Khreisheh, will intensify the rift between the government and the presidency and put the government’s authority over the people and PA institutions to a new test.

The Hamas Interior Minister could order police not to provide security on the day of the referendum. But with officers loyal to Fateh and President Abbas, those orders could be ignored. The Hamas Minister of Education could close down the schools where the voting is to be held. But with police and senior education officials loyal to Fateh, those orders could also be ignored.

Hamas also runs the risk of a high turnout at the polls. Whatever the technical legality of the referendum, the voter turnout and results will be used to further isolate the government internationally and will be the start of the government’s internal isolation.

Abbas’ Gamble

If the referendum passes by a large percentage but without the approval of the legislature, the question of its legality will shadow the results. And as the case with Hamas, turnout is crucial for Abbas. Hamas may conduct a successful boycott of the referendum. Moreover, any development on the ground such as Israel’s shelling of a family picnicking on the beach in Gaza last week, Abbas risks no voter turnout or a referendum that passes by only a slim percentage. In such a case, Abbas’ credibility and that of the referendum would not sit well with the Palestinian people and, most importantly, with the international community, which is Abbas’ impetus in pushing forward the referendum. Furthermore, an unsuccessful referendum will raise questions and doubts over Abbas’ power and authority within the PA.

An Option for Both

According to Khresiheh, he and Abbas’ security advisor, Jibril Rajoub, have been mediating between Abbas and Hamas’ political chief Khaled Mashaal on a way out of the current impasse. The most promising solution to which both sides tentatively agree on is the formation of a government of technocrats. However, Hamas would need some guarantees from Abbas and the international community before it agrees to dissolve the government. Among those, Hamas would need the assurance that the financial isolation of the PA would be lifted, that the members of the new government would not have any party affiliation, and that Hamas would be consulted on the formation of the new technocrat government.

So why would Hamas, who enjoys a majority in the PLC, agree to dissolving the government? According to Khreisheh, “Putting the risks of a referendum and the inevitable outcome of the international isolation aside, at the end of the day, there is a higher national interest.” Furthermore, Hamas sees no “shame in stepping up to the responsibility by stepping down,” Khresiheh said.

With tens of thousands of Palestinian government employees unpaid for four months and with the government facing an international political decision to bring it down, by stepping down from the government yet remaining in control of the PLC, Hamas believes it is in a win-win situation.

According to the Basic Law, an incoming government must receive a vote of confidence from the PLC. At the same time, the PLC can bring a motion of no-confidence against a sitting government. With a majority in the PLC, Hamas believes it can exercise power over the government and implement some of its program of change and reform.

As for negotiations with Israel, Hamas is more than willing to allow Abbas and the PLO to conduct those talks, knowing very well that Israel will not recognize more than the bare minimum of Palestinian rights. Hamas will take on the role of the strong political opposition in the legislature and, at the same time, resume its resistance to the occupation, both of which will ensure continued international and domestic pressure on Abbas.