FEBRUARY 2, 1996 - VOL 1No. 36
By Salwa Kanaana
Moments after the results of Palestinian elections were announced, Israel hastened to remind the Palestinian Authority that the Palestinian National Covenant must be altered before Israel will talk to the new governing body, and the debate over the disputed document is intensifying.
The PLO had agreed to alter Covenant articles offensive to Israel during its talks with Israeli negotiators in Taba. "Oslo 2" specifies that articles such as those holding that "the liberation of Palestine will destroy the Zionist and imperialist presence" will be repealed within two months of inauguration of the Legislative Council.
To facilitate the speedy convening of the PNC, Israeli Prime Minister Shimon Peres announced early last week that all PNC members, even those who are members of opposition parties, will be allowed to enter the Palestinian self-rule areas. The members will be able to convene, for the first time in the homeland and including the newly-elected Legislative Council members -- and get down to work changing the Covenant, which must be amended by a two-thirds majority.
Not so fast, challenge many of the 488 PNC and 88 legislative council members. The Taba agreement may very well stipulate that the Covenant be changed to accommodate the continued existence of Israel, but the Taba agreement was signed without the concession of the PNC, the ultimate Palestinian representative and governing body.
Israel wants eight of the Covenant's 33 articles repealed. Thus, phrases like "Palestine, with the boundaries it had during the British Mandate, is an indivisible territorial unit," "Armed struggle is the only way to liberate Palestine," and "Zionism is a political movement organically associated with international imperialism and antagonistic to all action for liberation and to progressive movements in the world" would be removed.
Members of the two Palestinian councils have come out in recent days with different prerequisites for giving their vote to altering the document, ranging from an Israeli promise that the Palestinian self-rule areas will never again be considered part of "Greater Israel," to removing checkpoints surrounding Jerusalem.
Acting head of the PNC Riad Za'nun (the PNC president is the elderly Sheikh Abdul Hamid Sayeh who submitted his resignation over a year ago) says the PNC would not even convene, let alone change the charter, unless four basic conditions are satisfied.
First, he says, all PNC members living in the Diaspora must be given full residency rights in the Palestinian territories. The PNC's 186 empty seats designated for representatives from the Occupied Territories must be filled (all 88 members of the elected Legislative Council are automatic members of the PNC, and the rest have yet to be appointed). Thirdly, according to Za'nun, all prisoners must be released by Israel. And lastly, the PA must complete its assumption of authority in the West Bank.
Za'nun also said Israel's deadline for the adjustments to the National Covenant (two months after the Legislative Council is officially inaugurated), is "not suitable." Israel must give the Palestinians more time to ensure that both the Legislative Council and the PNC meet in the self-rule areas before any adjustments are made, he said.
While Peres and the Israeli government are calling for the amendment of the Covenant, head of the Israeli right-wing Likud Party Benyamin Netanyahu stressed that not only must the Covenant articles in question be deleted, but the PLO will have to announce an entirely altered and more benevolent attitude toward the Zionist movement and Israel.
PA head Yasser Arafat has skirted the issue as debate heats up. "I cannot, in keeping with democracy, comment on this subject before the PNC convenes and makes a decision in this regard," he said, after meeting with Peres early this week in the Gaza Strip.
Speaking to Egyptian journalists a few days after elections, Arafat pointed out that Palestinians had, after all, changed their minds on pivotal issues before: The Covenant itself was altered after the 1974 October War ("when we vowed to found a Palestinians state on any piece of liberated Palestinian land.") The PLO has modified its position many times in the past few years, "as when in 1991, we accepted former United States President Bush's initiative [to conduct peace talks with Israel], based on the concept of land for peace and the adopting of UN Resolution 242 and 338." And the Oslo agreement was modified during talks with Israel in Cairo, Arafat added.
Nayef Hawatmeh, leader of the Syrian-based opposition Democratic Front for the Liberation of Palestine, also wants to be included in the list of those Israel will allow into the Palestinian territories. In his first direct appeal to Israel, through the country's national media, Hawatmeh asked to be allowed into Palestinian-run territory, "immediately and without any prior conditions."
Hawatmeh is not a PNC member, but 30 members of the Council are from his party. He says the Council must convene in Tunis and not the Palestinian territories, which are not yet a full-fledged Palestinian state, and he will not support altering the Covenant before Israel recognizes the Palestinian right to self-determination. Nonetheless, a DFLP representative in Ramallah said Hawatmeh will enter the Palestinian territories ("with Israel's permission") within the next few weeks, accompanied by 100 DFLP members.
Although Shimon Peres had said he would "not oppose" the return of Palestinian opposition leaders such as Hawatmeh and Palestinian Front for the Liberation of Palestine leader George Habash, he defended his leniency to the Knesset, saying "They understand better than the opposition in Israel that it's not worthwhile for them to return. From Israel's point of view, it is better they are here and not in Syria."
Hawatmeh said his party would not abandon armed resistance against Israel "until the end of Occupation." Hawatmeh has admitted to being the hand behind an attack which killed 25 Israelis in Ma'alot Tarshiha settlement in 1974; asked whether he regretted his action, Hawatmeh replied, "The screams of the children of Sabra and Shatilla, and the children of southern Lebanon, and the children of the Bahr al-Baqr school in Egypt, still echo in the sky."
But that was an "exceptional case," says Hawatmeh, and now
his stand is different. "Let us lay down our swords, and take part
in comprehensive negotiations which would lead to a Palestinian state,
existing side-by-side with Israel."
The Palestinian Legislative Council
This information on the structure and powers of the Palestinian Council was compiled by the JMCC from the relevant primary sources.
The Palestinian Council, with the Ra'ees of the Executive Authority of the Council, constitute the Palestinian Interim Self-Government Authority.
The Council shall be elected by the Palestinian people of the West Bank, Jerusalem, and the Gaza Strip for a transitional period not exceeding five years from the signing of the Gaza-Jericho Agreement on May 4 1994.
The Council possesses legislative and executive power as stipulated in Articles VII and IX of the Declaration of Principles.
Article IX of the DOP states: The Council shall be empowered to legislate, in accordance with the Interim Agreement, within all authorities transferred to it. Both parties will review jointly laws and military orders presently in force in the remaining spheres.
The Council, upon its inauguration, shall replace the Palestinian Authority and shall assume all the undertakings and obligations of the Palestinian Authority under the Gaza-Jericho Agreement, the Preparatory Transfer Agreement, and the Further Transfer Protocol.
The Council will elect from among its members a Speaker. The Speaker will preside over the meetings of the Council, administer the Council and its committees, decide on the agenda of each meeting, and lay before the Council proposals for voting, and declare the results of votes.
The organization, structure and functioning of the Council shall be in accordance with this Agreement and the Basic Law for the Palestinian Interim Self- Government Authority, which Law shall be adopted by the Council. The Basic Law and any regulations made under it shall not be contrary to the provisions of this Agreement.
The Council shall be responsible under its executive powers for the offices, services and departments transferred to it and may establish, within its jurisdiction, ministries and subordinate bodies, as necessary for the fulfillment of its responsibilities.
2. Jurisdiction of the Council
1. In accordance with the DOP, the jurisdiction of the Council will be the West Bank and Gaza Strip territory as a single territorial unit, except for:
a. issues that will be negotiated in the permanent status negotiations: Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis; and b. powers and responsibilities not transferred to the Council.
2. Accordingly, the authority of the Council encompasses all matters that fall within its territorial, functional and personal jurisdiction, as follows:
a. The territorial jurisdiction of the Council shall encompass the Gaza Strip territory, except for the Settlements and the Military Installation Area shown on map No. 2, and West Bank territory, except for Area C which, except for the issues that will be negotiated in the permanent status negotiations, will be gradually transferred to Palestinian jurisdiction in three phases, each to take place after an interval of six months, to be completed 18 months after the inauguration of the Council. At this time, the jurisdiction of the Council will cover West Bank and Gaza Strip territory, except for the issues that will be negotiated in the permanent status negotiations. Territorial jurisdiction includes land, subsoil and territorial waters, in accordance with the provisions of this Agreement.
b. The functional jurisdiction of the Council extends to all powers and responsibilities transferred to the Council, as specified in Oslo II or in any future agreements that may be reached between the Palestinians and Israelis during the interim period.
c. The territorial and functional jurisdiction of the Council will apply to all persons, except for Israelis.
d. The Council shall have functional jurisdiction in Area C, as detailed in Article IV of Annex III of Oslo II.
3. The Council has, within its authority, legislative, executive and judicial powers and responsibilities, as provided for in Oslo II.
4. a. Israel, through its military government, has the authority over areas that are not under the territorial jurisdiction of the Council, powers and responsibilities not transferred to the Council and Israelis.
b. The Israeli military government retains the "necessary legislative, judicial and executive powers and responsibilities, in accordance with international law." This does not derogate from Israel's applicable legislation over Israelis in personam.
5. Israel and the Council are to cooperate on matters of legal assistance in criminal and civil matters through a legal committee established by Oslo II.
3. Legislative Powers of the Council
1. According to Oslo II, legislation means "any primary and secondary legislation, including basic laws, laws, regulations and other legislative acts."
2. The Council has the power, within its jurisdiction as defined in Article XVII of Oslo II to adopt legislation.
3. While the primary legislative power lies in the hands of the Council as a whole, the Ra'ees of the Executive Authority of the Council shall have specific legislative powers: the power to initiate legislation or to present proposed legislation to the Council; the power to promulgate legislation adopted by the Council; and the power to issue secondary legislation, including regulations, relating to any matters specified and within the scope laid down in any primary legislation adopted by the Council.
4. Legislation, including legislation which amends or abrogates existing laws or military orders, which exceeds the jurisdiction of the Council or which is otherwise inconsistent with the provisions of the DOP, of the provisions of Oslo II, or of any other agreement that may be reached between the two sides during the interim period, have no effect and are void ad initio.
5. All legislation must be "communicated to the Israeli side of the Legal Committee."
4. Powers and Responsibilities of the Council
The Council will, within its jurisdiction, have legislative powers as set out in Article XVIII of Oslo II, as well as executive powers. The executive power of the Palestinian Council extends to all matters within its jurisdiction under Oslo II or any future agreement that may be reached between the two Parties during the interim period.
It also includes the power to formulate and conduct Palestinian policies and to supervise their implementation, to issue any rule or regulation under powers given in approved legislation and administrative decisions necessary for the realization of Palestinian self-government, the power to employ staff, sue and be sued and conclude contracts, and the power to keep and administer registers and records of the population, and issue certificates, licenses and documents.
The Palestinian Council's executive decisions and acts must be consistent with the provisions of Oslo II. The Palestinian Council may adopt all necessary measures in order to enforce the law and any of its decisions, and bring proceedings before the Palestinian courts and tribunals. In accordance with the DOP, the Council will not have powers and responsibilities in the sphere of foreign relations, which sphere includes the establishment abroad of embassies, consulates or other types of foreign missions and posts or permitting their establishment in the West Bank or the Gaza Strip, the appointment of or admission of diplomatic and consular staff, and the exercise of diplomatic functions.
However, the PLO may conduct negotiations and sign agreements with states or international organizations for the benefit of the Council in the following cases only: economic agreements, as specifically provided in Annex V of Oslo II; agreements with donor countries for the purpose of implementing arrangements for the provision of assistance to the Council; agreements for the purpose of implementing the regional development plans detailed in Annex IV of the DOP or in agreements entered into in the framework of the multilateral negotiations; and cultural, scientific and educational agreements.
Dealings between the Council and representatives of foreign states and international organizations, as well as the establishment in the West Bank and the Gaza Strip of representative offices other than those described above, for the purpose of implementing the agreements, are not be considered foreign relations. The Council will have, within its jurisdiction, an independent judicial system composed of independent Palestinian courts and tribunals.
5. Size of the Council
The Palestinian Council is composed of 88 representatives and the Ra'ees of the Executive Authority, who will be directly and simultaneously elected by the Palestinian people of the West Bank, Jerusalem and the Gaza Strip.
Of 28 female candidates, only Ashrawi and four other women were elected. Four percent of the candidates were women, and they now make up six percent of the PNC.
The recent elections yielded a disappointing dividend on many years of activism, Palestinian feminists say. "I don't think five women winning seats is sufficient," new Council member Hanan Ashrawi said last week. "It's not representative."
Of 28 female candidates, only Ashrawi and four other women were elected. Four percent of the candidates were women, and they now make up six percent of the PNC. Some 42 percent of voters were female.
Ghada Zughayar, head of the Jerusalem Center for Women, says women were deterred from running by financial restrictions, by the constituency system which allotted only a few seats in each region, and by the patriarchal nature of society which bars women from decision-making positions.
Zughayar, Ashrawi and a coalition of activists from the Jerusalem Center and the Women's Affairs Technical Committee renewed their calls for an electoral quota for women (of 30 percent) in the wake of the election, saying the results show the current system will only serve to further marginalize women.
Some feminist activists opposed a quota for women, saying they want women to be elected by merit alone. Ashrawi, however, who came second in the hard-fought Jerusalem district, continues to insist it is necessary.
"There is a difference between the quota for Christians and one for women," she said. "Women come to the political arena with a disadvantage. We need a quota as a temporary measure to level a playing field which has been traditionally uneven."
The coalition wants the quota system in place for the upcoming municipal elections, and says it will redouble its lobbying efforts. Unsuccessful candidate Zahira Kamal (who ran on the Fateh list in Jerusalem and finished one place short of a seat) noted that she lost because the Christian candidate, who won less votes, was guaranteed a seat.
Kamal observed that the elections proved the Palestinians are not much different from other Arab countries, despite what may be said about the strength of the women's movement here.
"This is a male-dominated society, like the others," she said. "Women didn't have the resources [to run] and the law didn't give them a chance."
But Kamal also put some of the blame for the lack of women in the new Council on women's organizations, saying "we didn't support each other well," and adding that more attention should have been paid to the needs of rural and illiterate women.
Ashrawi said she and the other successful candidates (Intisar Wazir in Gaza City, Dalal Salameh in Nablus, Rawya Shawwa in Gaza City, and Jamileh Sydem in Deir al-Balah) will bring "watching eyes" to the Council, but noted that none of them ran on a "women's platform" nor would they be strictly concerned with women's issues.
"We want to represent all Palestinians, and all areas of legislation are the domains of women. We bring a gender perspective to all these things."
The coalition said legislation on early marriage, domestic violence, and compulsory education for girls to the end of the secondary level would be their first priorities.
Ashrawi said she was not worried about the Islamist element of the new Council, which may work to have the Islamic Shari'a enshrined as personal status law. "The presence of political Islam is a necessary component of Palestinian pluralism," she said, observing that the Palestinian political tradition is solidly secular.
The Israeli human rights organization B'Tselem said the law was nothing more than "the legalization of torture" and added that if the draft becomes law, Israel will be the only country in the world with laws that legalize the use of torture.
The law will be considered by the Knesset this month. A ministerial committee headed by the prime minister and a specialized parliamentary sub-committee will specify the "type" of "physical torture" to be used. Liba'i said the methods used during interrogation will "not cause serious or dangerous pain."
Israel has used the methods in question against Palestinians since the beginning of the conflict in the region; a ministerial committee has regularly extended "special permission" required by interrogators to use torture methods. The law would remove the need for the committee's consideration of applications and institutionalize torture.
The Red Cross said a decision to formally approve the use of torture of Palestinian prisoners is "unacceptable ... and violates all international legislation [including] laws that Israel itself established."
While the bill is being considered, the ministerial committee has again extended the ok on torture for three months. The committee (Liba'i, Prime Minister Shimon Peres, Environment Minister Yossi Sarid and Internal Security Minister Moshe Shahal) approved methods including "violent shaking," which has been proven as the cause of death for at least one Palestinian prisoner.
Israel says it interrogated some 1,400 Hamas members. Israeli government legal advisor Michael Ben Yair said last week that the shaking method may be used only in "extreme cases," and not as a part of routine interrogation. He said all forms of routine torture which lead to the death of the prisoner have been banned, and now may only be used to extract immediate information from the detainee.
The newly-formed Palestinian-Israeli Center for the Legal Defense of Human Rights, which will begin work this month, said its first project would concern victims of Israeli prison torture. The center said it will cover the legal expenses of Palestinians who have been harmed by the Israeli government, state institutions or prison authorities, and who wish to file complaints in court against individuals (i.e., prison interrogators) or the state of Israel.
The center predicts that pursuing compensation through the courts will also assist in the victims' psychological rehabilitation. It will also be paying medical bills for torture victims.