The Principles of Governance as in the Basic Law for the
Palestinian National Authority during the Transitional Period
First Chapter: The Palestinian Legal System 4
I. During the
British Mandate.. 4
II. After the War
of 1947-1948 4
III. After the War
of 1967............... 5
IV. The
All-Palestine Government and the PLO............... 6
Second Chapter: The PNA and the elaboration of Basic Law..... 7
I. The Palestinian
National Authority. 7
III. The Basic Law
of the PNA for the Transitional Period... 10
C. General
provisions......... 11
Third Chapter: The Principles of Governance in the BL..... 12
II. Independence of
judiciary............. 13
III. Human Rights
protection 13
IV. Respect of
Minorities............. 14
VI. Political and
Party pluralism 15
The President of the Palestinian National
Authority (PNA), had signed the Basic Law (BL) of the PNA for the Transitional
Period on Mai 28, 2002, and came into force the date of its publication in the
official Gazette, on July 7, 2002[1].
Approval of BL intends to be one of the first steps towards reforms in the PNA.
In fact, the Palestinian Legislative Council (PLC) had approved the draft of BL
in its third reading (Law No.1/96) on October 2, 1997. Tension between the PLC
and the Executive grew, and members of the PLC started to express critics
towards the executive[2].
The subject of this article is the BL for
the PNA during the Transitional Period. The first chapter serves as introduction
to the Palestinian Legal System (or systems), while the second chapter is
dedicated to the BL: its birth, general provision, application, and
characteristics; the third chapter will treat some of the principles of
governance that the BL provides.
The Palestinian legal system reflects its
troublous political conflict. Palestine was part of the Ottoman Empire for four
centuries, when the League of Nations, after the end of the World War I,
decided to entrust Palestine to the British government. The Palestine
Order-in-Council of 1922 is considered as a Constitution, although modified
every time it was presumed necessary.
The
first Arab-Zionist war signed the beginning of the territorial division of
Palestine: the Zionists occupy de facto 78,5%
of mandatory Palestine[3],
and ivi declared the State of Israel[4];
while the Jordanian Army entered the West Bank (WB), included East Jerusalem;
and Egypt administered Gaza but considered it always as a an entity apart.
The repartition of mandatory Palestine
meant its legal division: the Legal System of Israel takes its own road[5],
while the WB was united to the East Bank of the Jordan River, and thus its Legal
System was modified by legislation made by the parliament[6]
and approved by the king[7].
A new Constitution was approved on 1952 that replaced the precedent mandatory
constitution[8]. In Gaza,
the mandatory Order-in-Council remained in force, with authority of government to
Egyptian administer. Two
Constitutions were issued for Gaza, the second one of 1962 although did not
abrogate expressly the precedent constitution, states that every laws or
regulations in contradiction to that constitution were to be considered null[9].
Israel
won the war, and occupied the WB -Jerusalem included[10]-
and Gaza strip (GS). Although fourth Geneva convention forbid de facto changes in the occupied
territories, including its legal system, the Israeli proclamations and orders[11],
changed gradually laws and regulations, justifying these orders with “the good
of the population”, or for “security reasons”. The truth is that all changes in
occupied territories served to the occupier power[12].
All three powers where concentrated in Israeli Military governor[13].
Palestinians expressed their disagreement
to all these injustices they were facing. Since the British mandate, their
specific dissidence to the Zionist plan, with the compliance of the British,
enforced their identity, and distinguished them more from other Arab nations.
They refused the UN partition plan, and the same existence of Israel. This was
exactly the content of the Provisional Law issued by the All-Palestine
government on 1948[14].
The seat of the All-Palestinian government was in Cairo, without having any
authority on WB or GS. The death of Ahamd Hilmi, the first and last Head of
All-Palestine Government on 1963 signed its end and the beginning of a new era
for Palestinians.
The
Palestinians second Conference[15]
was held in Jerusalem on 1964, and approved the Charter for the Palestine
Liberation Organization. Ahmad Shukeiri –whom the Arab League charged to choose
and invite Palestinian personalities to meet and decide representative for
Palestinian people- was its first chairman[16].
The PNC[17]
amended the Palestinian Charter twice: on 1968 after the lost war against
Israel[18]
and on 1996 to adapt it to the new situation after the Israel-PLO agreements[19].
The Palestinian National Authority (PNA)[20]
is born from the strange meeting of the two enemies of the past decades: Israel
and PLO. PNA shall administer Palestinians living in West Bank and Gaza Strip
(WBGS) without prejudice the role of the PLO institutions. The Israeli Civilian
administration is to be dissolved[21],
while the Israeli Military withdrew from the Palestinian cities gradually[22].
The
PNA is to be composed of a Council, with its ra’is[23].
The Jurisdiction of the Council is territorial (over Area A), Personal (only
over Palestinians), and functional (over area A and B).
Palestinians from WBGS and East Jerusalem
elected their 88 members[24]
of their first Palestinian Legislative Council (PLC) on 1996, and the ra’is of the PNA[25]. Majority
of PLC were from Fatah party[26],
due: first to the boycott of Islamic
and secular groups of elections, second to
the majoritarian election system adopted.
Once
elected, the PLC started its legislative work, with great difficulties and
obstacles due to limitation of the existent agreements, the difficulties of the
negotiations, and its relation to the executive.
The
PLC main preoccupation was to approve a Basic Law that define relations between
Council and the Executive, transparency of PNA members on the one hand, protect
Human Rights, secure the respect of rule of Law, and independence of judiciary
on the other.[27]
Drafting
a Constitution was possible under the Interim Agreements, and the Election Law
preamble settled that this was the PLC main task. Actually, the BL preparation
process was started before the declaration of Principles, and exactly
immediately after the declaration of
Independence on November 15, 1988, when the Palestinian National Council (PNC)
authorize the Central Council (CC) to draft a Basic Law[28].
The PNC Legal Committee, headed by Dr. Anis Al-Qasem, prepared the first drafts
that were discussed in public conferences. The third draft was published[29]
but the CC did not discuss it.
The Election of the Council imposed to make changes
to adapt the BL to the new situation. Many drafts were prepared, and the PLC
approved the BL it on October 2, 1997. The BL finished on the desk of Mr.
Arafat, as many other draft laws approved by the PLC and were not considered by
the PNA president[30].
By the end of the Interim period on 1999, the PLO
executive committee created a new legal committee in order to prepare a
Constitution for the future Palestinian State, to declare in undefined date[31].
The legal committee, presided by PNA minister Nabil Sha’th, completed the draft
on 2001[32],
while negotiations with Israel were totally collapsed.
On May 28, 2002, Mr. Arafat signed the BL of 1997, in a very controversial political context and as a step towards reforms, in the 100 days reform plan. One can ask: how possible that a BL adopted in 1997, will be efficient for the 2002 new complex situation? In fact, as much as there is no Authority, it seems ridiculous to speak about separation of powers; as much as there is military occupation it is insufficient declaring Rights and freedoms, as much as there are Israeli military courts, administrative detention, it is irrelevant to speak about Judiciary independence.
The
BL official language is Arabic[33].
All English translated versions, present on the web or published by NGO’s are
unofficial[34].
The
BL is divided in seven chapters. First chapter, general provisions (art.1-8);
second, civic rights and freedoms
(art.9-33); third, the Legislative Authority (art. 34-49); fourth, the
Executive Authority (art.50-87); fifth, the Judicial Authority (art. 88-100);
Sixth, State of Emergency Provisions (art. 101-105), Seventh, General and
Interim Provisions (art. 106-112).
The
application of this BL is limited in time (the Interim Period, art.106); in
space (within the territorial jurisdiction of the PLC, as agreed with Israel),
and in persons (only for Palestinians of WBGS and foreigners living in
Palestinian Autonomous areas, Israeli citizens excluded).
All
laws, ordinances and decisions, in contradiction with the new BL are abolished
(art.110), otherwise remains in force until amended or abolished according to
the BL provisions (art.109).
The
BL was approved almost with unanimity; the amendment of the BL needs a
qualified majority of two thirds of PLC (art.111). The publication of the BL in the official Gazette signs the date
of its enforce (art.112)[35].
The
BL contains provisions similar to most of Arab world Constitutions:
Palestinians part of Arab Nation (art.1), people are source of authority
(art.2), Islam religion of Palestine[36],
and shari’a principles are a primary source of legislation[37],
Arabic official language (art.4) [38].
In the other hand, some considered the BL the most liberal in relation to
constitutions of Arab world, especially for the list of rights and freedoms
that contains.
It
contains also some controversial provisions: first Jerusalem is the capital of Palestine (art.3), while
Jerusalem shall be one of the issues left for the Permanent status
negotiations; second art. 56 states
that the President of the PNA shall appoint representatives of the National
Authority to countries, international organizations and foreign bodies: this
provision contradicts the Interim agreements, and prejudice the PLO role; third the right to return, since we read
in art.28 states that no Palestinian may be prohibited from returning to his homeland.
On the other hand, the BL did not mention the Palestinian state, or Palestinian
people sovereignty. The only exception is art. 106 that states that this BL is
enforced in the Interim Period, and can be extended until the introduction of
the new constitution for the Palestinian state.
The Arab Palestinian people are source of the authorities;
they shall exercise them through those whom the BL invests with the legislative,
executive, and judicial power, on the foundation of separation between the
authorities (art.2). The separation of powers is connected with the
constitutionalism of powers as expressed in the same article.
The governing system in Palestine shall be a democratic
Parliamentary system (art.5); nevertheless, the system identified in the BL
conforms most closely to presidentialism[39].
The president is elected in direct general election by the people (art.51); he
is the High Commander of Palestinian Forces (art.55); he appoints
representatives to countries and international organizations (art.56); he
appoints and dismisses ministers (maximum nineteen ministers without a prime
minister), and presides their meetings (art.62), and they are responsible to
him and to the PLC (art.5, 68)
Articles regarding independence of Judicial Authority reflect the preoccupation of PLC for the interference of executive and security forces on the operation of the Judges during the PNA era. In fact, many local NGO’s and international Human Rights organizations expressed criticized the PNA in their annual reports. For this reason the BL states that judicial Authority is independent (art. 88), and judges are independent and subject only to the law (art.89); judicial sentences shall be implemented (art.97). Yet, Mr. Arafat signed the law on the independence of judiciary after three years of waiting his approval, on the same day he signed the BL.
The BL states that a Constitutional Court shall be established (art. 94). The court shall examine the constitutionality of laws, ordinances, or regulations; explain the text of BL and legislation; separate in disputes of standing between judicial parties and administrative parties (art.94). Until its creation by a law, the High Court assumes the responsibilities of the Constitutional Court (art.95).
According
to the Palestine Human Rights Monitor (May – June Issue n°3, 1997)[40],
the PNA public undertakings to respect human rights can find expressions in
five sources: First, undertakings made to human rights NGO’s, such as Amnesty
International[41];
second, public decrees and declarations made by the PA undertaking to comply
with HR norms[42];
third, provisions of the Oslo accords, undertakings under the BL for the PNA;
and finally, responsibilities under International HR law and Humanitarian Law[43].
In
the BL there is a continuous reference to human rights, in strict relation with
good governance, rule of law, and independence of judiciary, with respect to
the International law standards. Actually, the PLO already confirmed in the
declaration of independence in 1988, that the “State of Palestine proclaims its
commitment to the principles and purposes of the United Nations, and to the
Universal Declaration of Human Rights… It will join with all states and peoples
in order to assure a permanent peace based upon justice and the respect of
rights so that humanity's potential for well-being may be assured, an earnest
competition for excellence may be maintained, and in which confidence in the
future will eliminate fear for those who are just and for whom justice is the
only recourse”.
HR
and basic freedoms, according to international laws, charters, and treaties,
are not immediately applicable in the Palestinian state. It has to be absorbed
by the Palestinian legal system, constitution, or ratified by the legitimate
legislative power, in order to make them part of domestic law (art.10, n.2). In
case of reception by an ordinary law, the HRs and basic freedoms, may be
changed by successive similar range ordinary law, or special law.
When
considering the question of Christian religious minorities, it is important to
take in consideration that Christians, although numerically reduced, are part
of the Palestinian society, and together with Muslim Palestinians, participate
in the process of nation and state building. The fact that Islam is religion of
Palestine does not necessarily contradict rights and freedom of religion, or better,
not declaring Islam as religion of Palestine does not mean necessarily that
freedom of religion is secured. In
fact, the same article 4 states immediately after declaring Islam as official
religion, that respect and sanctity of all other heavenly religions shall be
maintained. On the other hand, freedom of belief and the performance of
religious rituals are guaranteed (art.18) and Shari’a principles as source of
legislation (art.4,n.2), will continue to rule personal status in respect of
jurisdiction of religious tribunals and status
quo.
Equality
between Palestinians intends to be factual and not only formal. For example,
eight seats of the PLC where dedicated to religious or nationalistic minorities
(six for Christians, one for Samaritans, and one for Charkas), in order to
secure that minorities members will not be excluded from political and social
life.
The Interim agreement (Oslo II) states that the PLC shall implement principles of rule of law internationally accepted norms and principles (art.19); in fact, we read in art. 6 of the BL that the Principle of the rule of law shall be the basis of government in Palestine. All authorities, powers, agencies, institutions and individuals shall be subject to law (art.6). This obligation cover also the security forces that the BL want them to be a regulated force, that act within the limits prescribed by law with complete respect to rights and freedom (art.75).
The
BL states that the governing system in Palestine is based on Political and
Party Pluralism (art.5). Nevertheless, the election system, the PLC formation,
and the executive and PNA President party affiliation, give us the impression
that the Palestinian system is directed towards a one-party system[44].
Some considers the BL as superfluous,
meaningless or ridiculous in a moment when the Palestinian territories,
included the re-occupied Palestinian Autonomous cities- are under occupation
and that the Authorities that the BL intends to separate and rule does not
exist effectively. This is true, since the first obstacle to the
society-building that conducts to the state-building is the Israeli occupation.
Nevertheless, I believe that the BL is one of the steps, that will conduct
Palestinians through the transitional period, guided by the principles of good
governance and respect of Human Rights, towards the realization of their right
on self- determination[45].
Asem Khalil. Born in Zababdeh, West Bank/the Occupied Palestinian Territories on 1976. B.A. in Philosophy (1997), B.A./Master/PhD. in Law (Utriusque Iuris) from the Lateran University in Rome, 2003. Now, preparing a thesis to obtain Ph.D. in Public Law, from the University of Fribourg/Switzerland. Proposed title of the thesis: “The Constituent Power of the Palestinian People”.
For comments, proposals,
suggestions, please contact the author of the dissertation at:
Asem Khalil. Né à Zababdeh, en Cisjordanie/Territoires Occupées
Palestiniennes en 1976. B.A. en
philosophie (1997). Maîtrise, DEA, Doctorat en droit (Utriusque Iuris) à
l’université du Lateran à Rome en 2003. Actuellement, en première année en
thèse pour le doctorat en droit publique à l’université de Fribourg/Suisse. Titre proposé : « Pouvoir
Constitutionnel originaire du peuple Palestinien ».
Vous pouvez contacter l’auteur de la
thèse à : asemkhalil@gawab.com
[1]
The Official Gazette of PNA (called “al-Waqa’e الوقائع”)
was distributed to journalists in a press conference in Gaza, Cf. Al-Hayat,
July 8, 2002.
[2]
Mr. Haider Abdel Shafi, one of the PLO team in the Palestinian Jordanian team
to Madrid Conference, and PLC member since 1996, resigned as a protest against the
executive politic toward the PLC.
[3]
The UNGA confirmed the Partition Plan on November 29, 1947 (resolution 181, 33
votes to 13 with 10 abstaining). Palestine was to be divided in two states: the
Arab state would have covered 49% of mandatory Palestine with 715,000 Arabs and
8,000 Jews, while the Jewish state would have covered 51%, with a population of
500,000 Jews and 416,000 Arabs. Jerusalem was to be under international
Trusteeship.
[4]
The 1947-1948 war caused the first serious problem of Palestinian Refugees.
700,000 Palestinians were constringed to leave their houses and proprieties,
and never been able to return. The war of 1967 caused a second huge refugees
emergency.
[5]
After almost two decades of military government with emergency regulations,
Palestinians started a process of full integration, the Israeli government
started to recognize them citizenship. Nevertheless, they are looking forward
to obtain equal political, social and economic rights. For more details about
the Israeli Legal system, cf. KREZMER D., The New Basic Laws on Human Rights: a
Mini-Revolution in Israeli Constitutional Law? in: Israel Law Review, No.26 (2), 1992, pp.238-246; id., Constitutional
Law, in : SHAPIRA A. (ed.), Introduction to the Law of Israel, London,
1995, pp.39-58; id., Domestic Politics,
Law and the Peace Process: a View from Israel, in: COTRAN, CHIBLI M. (ed.),
The Arab-Israeli Accords: Legal
Prospective, CIMEL Book Series No.1, London-the Hague-Boston, 1997,
pp.81-99.
[6]
General elections were held in both banks after the unification, 20 members
were elected from each bank.
[7] The Jordanian king assumes powers of King of
England, his minister and the HC, enjoyed by Palestine-Order-in Council, until
the 1952 new constitution was adopted.
[8]
ALA’SALY W., The Legal System in the West Bank 1948-1967 (Arabic), in: Which
Legal System for Palestine? Conference Proceedings, Birzeit University Law
Center, 1996, pp. 11-20; AL-QASEM A., Legal Systems and Developments in
Palestine, in: Palestine Yearbook of International Law, Vol. I, 1984, pp.
19-35.
[9]
For more details about the Legal System in Gaza Strip, cf. ALAGHA R., The Legal
System in Gaza Strip 1948-1967 (Arabic), in: Which Legal System for Palestine? Conference Proceedings, Birzeit University Law Center, 1996, pp.
21-26; AL-QASEM A., Legal Systems and Developments in Palestine, in:
Palestine Yearbook of International Law, Vol. I, 1984, pp. 19-35.
[10]
Jerusalem was formally annexed to Israel.
[11]
There is an unofficial translation of Israeli Orders, cf. RABAH J., FAIRWEATHER N. (Compiled by), Israeli Military Orders, in the Occupied
Palestinian West Bank 1967 – 1992, JMCC, 2nd Ed. 1995.
[12]
For more details about the changes in the legal system during the Israeli
occupation, cf. QUBTY M., The Military Orders in the West Bank 1967-1994 (Arabic), in: Which Legal System for Palestine? Conference Proceedings, Birzeit
University Law Center, 1996, pp. 33-43.
[13]
Cf. SHEHADEH R., Occupiers
Law, Israel and the West Bank, 2nd ed., Institute of Palestine
Studies, Washington D.C., 1988.
[14]
The National Conference was held in Gaza on October 2-3, 1948. That provisional
Basic Law (of 18 articles) established that the All-Palestine Government is to
be composed: 1) A national Assembly, and the members will be those that
attended the conference. Their Powers
are not clear, but mostly it is mostly to be considered as a parliament, and to
approve the provisional law; 2) A council of ministers; 3) Supreme Council, as
a collegiate head of State, to be composed by Chairman of National Assembly, the
Prime Minister, and the President of the Supreme Court. For more details, cf.
AL-QASEM A., Commentary to the Draft
Basic Law for the Palestinian National Authority in the Transitional Period, in:
Palestine Yearbook of International Law, VII,
1992/1994, pp.187-211. See also, SHLAIM A., The Rise and Fall of the All-Palestine
Government in Gaza, in: Journal
of Palestine Studies, Vol. XX, No. 1, 1990, pp.37-53.
[15]
Many authors consider the Palestinian Conference held in Jerusalem as the first
one, ignoring that first conference in Gaza that gave birth to the
All-Palestine government.
[16]
The PLO original institutions were 1) The Palestinian National Council: it lays
down the general PLO policy, elects chairman and members of executive members,
chairman of Palestine National Fund; 2) Executive committee: Council of
ministers, that can be also dismissed by PNC; 3) Palestine National Fund.
Because of logistical and financial difficulties, the PNC created in 17th
session, the Central Council. Cf. AL-QASEM A., The Palestine Liberation Organization’s Claim to Status: A Juridical
Analysis under International Law, in: Denver
Journal of International Law and Policy, N.9 (1) Winter 1980, pp. 1-33.
[17]
Under the PLO basic Law, the unique PLO institution that can amend the PLO
charter is the PNC.
[18]
The Charter was amended on July, 1968. Text can be found on the web, for
example http://yale.edu/lawweb/avalon/plocov.htm
[19]
For test of charters 1964 and 1968, and the dynamics of amendment, see
Permanent Observer Mission of Palestine to the United Nations official website http://www.palestine-un.org/
[20]All
consideration made in this chapter are based on situation before the beginning
of the violence in the Palestinian territories, and the systematic destruction
of the PNA, or worse, the destruction of the Palestinian society and civil
institutions by the Israeli military forces. Situation on ground is changing
drastically, and there are so few space for legal arguments. Still, I believe
that studying the Oslo process –considered dead since longtime for many- is
important to understand the actual catastrophic conflict situation, and to
prospect possible permanent solution of the Israeli-Palestinian long and bloody
conflict.
[21] In
fact, after the re-occupation of the Palestinian Autonomous territories, Israel
was considering seriously to reopen the Civil administration, as the symbol of
the unilateral Israeli decision of the end of the PNA era.
[22]
Actually Israeli Military invaded again these cities, and negotiations intend
convince Israel to return to the pre-II Intifada situation.
[23]
The Israelis wanted to use the word “Chairman” while the Palestinian insisted
on using the word “President”. As a compromise, the Agreements adopted the word
“ra’is”, an Arabic word that means
both President and Chairman.
[24]
The Palestinian Legislative Council 88 members were elected on January 20,
1996. The Ra’is is its 89 ex officio member. Palestinians who have
the right to elect and to be elected are only those of West Bank, Gaza Strip
and East Jerusalem.
[25]
Before the election of the council Mr. Arafat, the PLO Executive Committee
Chairman, by the Central Council to design the member of the PNA council.
[26]
Many authors critiqued the almost one party system in PNA, due also to the
proportional electoral system. In fact, Fatah
was omni present, majority on the PLC, totality of Executive members, the
President, and almost totality of security apparatus and chiefs.
[27]
For more details about the PLC election, and its significance, cf. ABDUL HAMID R., Legal
& Political Aspects of Palestinian Elections, IPCRI, 1995.
[28]
Since it will be easier for the 100 CC members to meet, and discuss the draft
than the 340 PNC members.
[29]
Their final work, known as the third
draft was published in: Palestine Yearbook of International Law, VII,
1992/1994, pp.171-186 also in: COTRAN, CHIBLI M.
(ed.), The Arab-Israeli Accords: Legal
Prospective, CIMEL Book Series No.1, London-the Hague-Boston, 1997,
pp.137-155.
[30]
Many theories were made about the real reason of the PNA President to sign the
BL. The fact is that the BL, although institutionalize the President very high
powers, intends to give to the PLC its missed role, during the interim period,
oversee over executive, and secure judicial independency against security
apparatus.
[31]
This declaration was never made.
[32]
English version is on the Palestinian Centre for
Policy and Survey Research (PSR) website: http://www.pcpsr.org/./main.html
; In Cooperation with the Konrad Adenauer Foundation. The first and the second
chapter of the constitution are respectively in: http://www.pcpsr.org/domestic/2001/conste1.html
http://www.pcpsr.org/domestic/2001/conste2.html.
[33] My
work will adopt one any unofficial English translation were made: by Saladin
Al-Jurf, in: Case Western Reserve Journal
of International Law, 31 (2/3) spring/summer 1999 (Symposium: the Legal Foundations of peace and Prosperity in the Middle
East), pp. 495-519; by Jamal Abu Khadijeh, http://www.aman-palestine.org/doc/34--BASIC%20LAW-3RD.pdf
; also in LAW, Palestinian Legislative
Council Basic Law Draft Resolution, Third Reading Passed 2 October 1997, (unofficial
translation); In JURIST website: http://jurist.law.pitt.edu/world/palestbasic.htm
[34] I
adopted the translation made by Jamal Abu Khadijeh, http://www.aman-palestine.org/doc/34--BASIC%20LAW-3RD.pdf.
[35]
The publication of laws in the official Gazette is a competence of minister of
Justice only. This meant a further limit to PLC legislative activities. In
fact, when the PLC approve a law, the President shall sign it. Once he signs
the law, it needs to be published in official gazette. The BL tried to impose
limits on executive veto on laws approved by the PLC as in art. 57.
[36]
Islam religion of state as in most Arab Constitutions: Algeria art.2, Bahrain
art.2, Egypt art.2, Emirates art.2, Jordan art.2, Kuwait art.2, Morocco art.6,
Sudan art.16, Tunisia art.1.
[37]
Islamic Shari’a is a main source of legislation: Bahrain art.2, Emirates art.7,
Kuweit art.2, Syria art.3; Islamic Jurisprudence is the principle of
legislation: Egypt art. 2,11; the fundamental source: Sudan art.9.
[38] In the last decades we notice a growing tendency of
conversion to Shari’a, in Muslim and Arab legal systems. Shari’a, in fact, is
imposed legally by the state and not by doctrinal models, cf. CASTRO F., Diritto Musulmano e dei Paesi Musulmani, p.14.
[39]
Cf. FRIEDMAN G., The Palestinian Draft
Basic Law: Prospects and Potentials, P.I.C.C.R., Legal Reports Studies (8),
1999, P.12.
[40] COLTER I., Palestinian Undertakings to Respect Human Rights –
Basic Sources.
[41] In a radio broadcast of December 31, 1993, Mr. Arafat said: “We
want the Palestine that is being revised anew to be… democratic, an oasis in
which our people will enjoy freedom, democracy, political pluralism, security
and safety, the independence of judiciary, the preservation of public freedoms,
stability, prosperity, human rights and equality between men and women”, cited
in: COLTER I., Palestinian Undertakings to Respect Human Rights – Basic
Sources.
[42] Such as the PLO decree issued in Tunis on October 30, 1993, right
after the Israel-PLO declaration of Principles. Cf. COLTER I., Palestinian
Undertakings to Respect Human Rights – Basic Sources.
[43] Since the PA, although does not have the character of an
independent state, exercises “state-like” power and authority within its
jurisdiction under the May 1994 (Cairo Agreement) and September 1995 (Oslo II)
Interim Agreements. Cf. COLTER I., Palestinian Undertakings to Respect Human
Rights – Basic Sources.
[44] As
already mentioned in Second Chapter, I.
[45]
The necessity of the establishment of the Palestinian state seems to obtain the
consensus of the international Community, expressed in last months with UNSC
resolutions although there is no agreement on which, how, and when this state
is to be born.