Which Constitution for the Palestinian Legal System?

 

 

1. The theory of Constituent power 2

 

2. The Constituent Power Applied to The Palestinian Context................... 5

2.1. A Basic Law or a Constitution?............... 8

2.2. The Basic Law for the Palestinian National Authority. 9

2.3. The Draft of Palestinian Constitution............. 10

 

3. The Palestinian form of State...... 11

 

4. The question of Sovereignty............ 13

4.1. Who is Palestinian?............. 14

4.2. Palestinian Citizens.. 14

4.3. The Palestinian People... 16

 

5. Palestinian style of Government............ 18

 

6. Recent Constitutional Changes 20

 

1. The theory of Constituent power

The theory of Constituent Power appeared almost simultaneously in North America and in France. The constituent power “deals with the Power to frame a very particular norm, namely the Constitution as well as with the power to amend that norm”[1]. In other words, the constituent power is: first, the framing power and, second, the amending power[2]. Regarding the constituent power, there are two problems: first, the problem of legitimacy and the problem of limits[3]. Speaking about constituent power is possible only in case of rigid constitutions[4].

Framing power is possible only when there is no constitution in force as it is the case when a new state is born or obtained recently independence[5]. It is also considered framing power when there are dramatic changes in regime, following a coup d’état or a revolution as it was the case of Russia on 1917 and Egypt on 1952[6]. Since it can be considered the higher power of the state, the framing power invests the entitled of sovereignty[7]. In democratic countries, people are entitled of sovereignty. People exercise this sovereignty through representatives, special assembly or through Referendum. People are the only entitled of the framing power[8].  In case democracy is only theoretical, the framing power is effectively in the hands of the dictator, who can be one person, or a group of people.

The amending power is the one competent to amend the constitution; it presupposes the existence of a constitution that empowers the constituent power, called rightly derived or amending power, to amend the constitution following a procedure that may vary from a country to another, but have in common the precise regulation in order to avoid unclear constitutional revision process[9].

There is no universal modality to adopt a constitution[10]. It depends mostly on the economic, social and political development of the country adopting a constitution on one hand, and on the other hand, it depends on the governing regime and the force relation between classes and categories[11]. The constitution is superior to other ordinary laws. It is not sufficient to consider supreme the modern constitutions because they elevate themselves to a position of predominance. It is necessary to go back to the genesis of the constitutional document and in the authority of its authors[12]. This constitutional superiority, any way, becomes entirely theoretical in the absence of judicial review[13].

Studying the foundation of the legitimacy of the constitution, we should inevitably consider the social contract as the basis of its legitimacy. Social contract means that popular sovereignty is expressed by the constituent assembly. J.J. Rousseau wrote: “Each one of us puts into the common stock his person and all his power, under the supreme direction of the general will; and we receive as a body each member of an indivisible part of the whole”. There are different social contract approaches that we will mention here some: The British, for example -who have had no need for a written constitution- emphasizes the political self-government of society through parliament while the French -who have had few scruples in replacing their constitutions- emphasizes the nation as it is manifested in the state. The American social contract approach reflects the American concern with a society consisting of multitude of individuals whose mutual contract is contained in the Supreme Constitution[14].

Some authors expressed serious critics towards the social contract as foundation of legitimacy of the constitution. For them, justifying law by social contract is fiction; law has to be justified by something outside itself. The constitution, indeed, has to be effective. The constitution must be adopted and put into operation with authority. In Constitutional state, authority is characterized by democratic legitimization to which also the democratic minority acquiesces. The origin of the supremacy of the constitution is therefore founded in the authority of the constitution-writing entity, but this does not explain the perpetuation of its predominance. In fact, predominance of constitution is maintained by the operation of the legitimately established devices of the constitution itself, which can remain effective only as long as citizenry and the states’ organs of authority that are governed by the constitution, continue to lead legitimacy to its institutions through the due employment of the mechanisms and procedures provided by the constitution. The force outside the constitution, which ensures its primacy, is its practical legitimacy, when it gives reasonable and realistic expression to the principles and needs of the legal community that it serves. In a constitutional state, the revolution, civil war, and the amendment of constitution shall be considered as changing of the ethos, the well of the citizens. Legitimate constitution: solemn codification of basic rules for the operation of the state. It tends to reflect national customs and usages and that the legal culture of the state is strongly influences, if not determined thereby[15].

 In the last decade of the second millennium, and mostly due to the end of the Soviet Union, 29 new states got independence and became states. The UN members were 156 states until 1990. In 1999, members augmented 15% to become 185[16]. This huge number of new states gave constitutionalism a renewed significance and importance[17]. Modern society is characterized by the occurrence of many new constitutions and of certain similarities and differences between them. From the juridical point of view, modern constitutions surpass classical democratic traditions of constitutionality and its techniques although constitution remains as the fundamental law. They contain juridical norms, which seek to offer legal guarantees and judicial protection. In political sense, modern constitutions institutionalize power and political relations; establish rules that are binding on everyone; ensure the continuity of the institutions. They are the highest law of the country and wish to set –though not always also to achieve- the principle of rule of law (as opposite to political opportunism). The written form and the innovation in the structure of the constitution itself characterize modern constitution. Modern constitution is longer than constitutions written in the XIX century; they not only express organization of power but also political and social philosophy of a given society. Besides, there is no unity between theory, ideology of the normative and the real in modern society and constitutions. The relation between the “visible” and the “invisible constitution” raises not only the question of its value and its influence, but also the question of the unavoidable change and correction of theoretical and ideological principles. Modern constitution has a lot of innovations such as the introduction of economic regulations (form of property and planning), the expansion of the classical scale of Human freedoms and rights (socio-economic and cultural), the protection of constitutionality and legality and the revision of procedure for the change of the constitution (shorter and easier) [18].

2. The Constituent Power Applied to The Palestinian Context

On November 15, 1988, the Palestinian National Council (hereinafter PNC) made the famous and disputable Declaration of Independence of the State of Palestine. For sure, the declaration of independence did not succeed to create a central power that would exercise sovereign powers over a region and a population, to fulfil the definition of a state as in the generally accepted theories of state. For this reason, the declaration of the Palestinian State seems to be more a political issue. The same can be said for the recognition of one hundred states, and the modification of the name of Palestine Liberation Organization (hereinafter PLO) to Palestine in the United Nations General Assembly (hereinafter UNGA), since they are related to the Palestinian right of self-determination. In fact, the UNGA acceptance to change the name did not change the status of the PLO as an observer, since full membership in the UN institutions remains an exclusive right of states.

According to the PNC, the new state and the legal heritage that it would succeed to necessitated drafting a Basic Law (hereinafter BL). The PNC authorizes the Central Council (hereinafter CC) to draft a BL for the new entity.  The reason for that is that the CC has higher opportunity to meet, discuss, and act more quickly and effectively than the PNC[19]. The very first idea of a BL, as wanted by the PNC, was related to the “Palestinian State”, which independence is declared in the same day. After the Declaration of Principles (hereinafter DOP), the Interim Agreements (hereinafter IA) and the election of the Palestinian Legislative Council (hereinafter PLC), the BL was related to the new entity created by them, the Palestinian National Authority (hereinafter PNA), that is not a state, but an entity that exercises some territorial, functional and personal authorities, in the limits of the powers transferred to it and for the transitional period only.

The PNC Legal Committee, headed by Dr. Al-Qasem, prepared the first drafts of BL: the first one was forwarded to the PLO’s Executive Committee on December 1993. The second draft was prepared in February 1994, and the third draft in December 1994. The third draft was published but the CC did not discuss it[20]. Legal experts and the public discussed these drafts during the conferences organized for that reason; Palestinians from outside and inside the territories had given their contributions. The Palestinian Authority, meanwhile, started to operate.

After the IA or Oslo II agreement, many problems related to the legislative council and the elections were resolved. It became necessary to complete the document: that gave birth to the 4^th Draft of BL on December 11^th, 1995. A draft produced by Bir Zeit University and al-Haqq Institute is often counted as the fifth draft, while the draft produced by the legal committee of the PLC is generally counted as the sixth draft. In July 9^th, 1996, the Legal Committee of the PLC published the 7^th draft of the BL[21]. The different drafts of 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[22].

The PLC had approved the draft of BL in its third reading (Law No.1/96) on October 2^nd, 1997. The PLC main preoccupation was to approve a Basic Law which defines 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[23]. Drafting a BL was possible under the Interim Agreements. The Election Law preamble settled that this was the PLC main task. The President of the PNA refused to sign the law, creating more tensions between the PLC and the Executive Authority in general and the President of the PNA in particular.

      In 1999 the PLO Executive Committee created a legal committee to draft a Palestinian Constitution in preparation for statehood. Mr. Arafat appointed Minister Nabil Sha’th as its’ chairman. The Constitution Committee was composed of highly qualified Palestinian constitutionalists and jurists. It was coupled with an agreement with the Arab League to form an advisory committee of experts. The Draft of the Palestinian Constitution (hereinafter DPC) was completed on February 14, 2001[24], while negotiations with Israel totally collapsed.

The President of the PNA, had signed the 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[25]. Signing the BL came in a very controversial political context and as a step towards reforms, in the 100 days reform plan.

2.1. A Basic Law or a Constitution?

The declaration of independence came after two different experiences: the Intifada, that is the popular insurrection against occupation from one side, and the declaration of king Hussein of administrative separation between the two banks. The constitution in that sense, will accompany the birth of a new state. The Palestinian people are entitled of sovereignty, in the name of their self-determination inner right. The Basic law, on the other hand, is not the fruit of a sovereign act; it consists of a law of a level higher than other laws (in case rendered effective), but subordinated to the agreement between PLO and Israel. Still, judges will apply only internal law that is the BL and other laws, decrees, decisions, regulations. The discordance with the agreements would be considered illicit for violation for a treaty or agreement.  The BL is a temporal law that would govern the relation between authorities, during the transitional period, and was approved by the PLC which represents only Palestinians of West Bank-Gaza Strip (hereinafter WBGS) included Jerusalem.

The Constitution intends to be simultaneous to the birth of the new state: Palestine. A commission prepared the constitution, with a delegation from the CC that is in complete accordance with the PNC declaration of independence, and its new policy where the two states solution prevails. The PNC is not an elected body. Still, it always represented most of political parties (excluded Hamas), and commercial unions, that reflected the different Palestinian classes. As such, the PLO represents the Palestinian people, and is competent to adopt a constitution for the Palestinian state. Palestinians would have the right to participate through the PLO in the framing power that is inner to all Palestinian people, entitled of sovereignty, although not all Palestinians, as part of inevitable compromise, would have the right on Palestinian citizenship. The participation of Palestinians of WBGS in the constitution drafting process is relevant. Palestinians showed –at the beginning- enthusiasm that reflected their participation in the public conference organized to give contributions to the BL. That is inevitable, since the BL –and also the constitution- would interest first of all the Palestinians of WBGS, within which space the PNA is operating and the Palestinian state would be established. An important question would inevitably arise: will Palestinians through the PLO institutions continue to have the constituent power regarding the amendment of the constitution, in case of the creation of the state? Will it be the competence of Palestinians of WBGS and citizens of the future Palestinian state (included the new arrived?) Will the PLO participate in the legislation that will have its principle objective the inhabitants of the WBGS?[26]

2.2. The Basic Law for the Palestinian National Authority

The PLC had approved the BL on October 2, 1997 and endorsed by the President of the PNA on May 28, 2002, and came into force the date of its publication in the official Gazette, on July 7, 2002. The BL official language is Arabic[27]. All English translated versions, present on the web or published by NGO’s are unofficial. 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)[28].

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[29], and shari’a principles are a primary source of legislation[30], Arabic official language (art.4) [31]. 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.

2.3. The Draft of Palestinian Constitution

The DPC was prepared by committee that received this charge from the CC of the PLO as a step towards preparation for statehood. It was completed in 2001 but was forgotten for the years that followed almost immediately the end of the transitional period, because of the bloody conflict between Palestinians and Israel. Since then, the Palestinian state is not established and the conflict with Israel rendered situation complex for the PNA. The same text was object of revision in 2003, and of interest in the international arena as a preparation to statehood[32].

The destiny of the constitution is to substitute the BL (art.106 of BL). It will remain in force until revised by the empowered body as will provide the same constitution. Adopting the constitution for the Palestinian state is not a matter that involves only Palestinians of WBGS, and as such, the PNA institutions (PLC and the presidency) are not empowered to adopt it. The PLO remains the only representative of the Palestinian people. The PNC is empowered to adopt the constitution for the state that it would call Palestine as already it declared in the early 1989.

The DPC is composed of 220 articles and divided in three chapters. The first chapter is entitled: Foundations of the State and Rights and Duties (artt.1-66); The second: The Branches of Government (artt.67-212); The third: Revision of the Constitution and Concluding Statutes (Artt.213-220).  General provisions regarding the official language, religion of the state, Shari’a principles… are similar to those of the BL as provided in the table prepared below.

3. The Palestinian form of State

It is necessary to take in consideration that there is a “quasi discrepancy between formulized institutes in the Constitutional cart and their operating”[33]. This is the case in Arab countries where there is a tendency to consider the constitution as a further limitation to citizen rights, rather than to assure their respect; as a further guarantee to the power of the executive power rather than to limit it. Considering the Palestinian case, there is a necessity to keep in mind the fact that there is not yet a Palestinian state but is inevitably to be born. Meanwhile, the DPC –on the contrary of the BL- presumes the existence of a Palestinian state, and intends to be the second step to it.

A state can be distinguished as democratic or autocratic[34]. The identification of the form of state will be in the criterion relative to the holder and the exercise of power in the state, to the modalities of the use of power, and to the finalities of the use of power.[35] There is not always complete identification with this or that kind of form of state, as it is the case of post-colonial independent state. These classifications made in the West and widespread all over the world shall not be considered absolute and unique. The cultural, historic, religious differences and circumstances’ necessities can determine a new and different form of state, which will not be necessarily considered bad or good for the only reason that they are different.[36] The same concept of democracy and human rights are sometimes understood in different modalities.

The Palestinian state will have many things in common with other Arab countries. On the other hand, it is a particular case for the following reasons: 1) The Palestinian people are the only Arabs without their own state yet. 2) The Israeli occupation gave them an identity connected to their struggle for the independence. 3) The Israeli occupation and the sense of injustice and delusion from Arab and Western countries. 4) The huge number of refugees living abroad or in refugees’ camps.

A Palestinian State was declared in Algeria by the PNC, basing its international legitimacy on the UN General Assembly Resolution number 181 (1947); the same Resolution considered as a historical injustice inflicted on the Palestinian people, since it caused their dispersion and deprived them the right of self-determination, imposing the partition of Palestine into two states. The declaration of independence is raised possible by virtue of Palestinian people’ historical and natural right on their homeland, their continuous claim of independence, the resolutions of Arab Summit conferences and the international legitimacy, based on United Nations Resolutions[37].

In the DPC we read: Palestine should be an independent state (DPC, art.4) since Palestinians have the right to practice their sovereignty over their lands (DPC, art.2) that should be unitary, indivisible (DPC, art.4) and integral (DPC, art.13). The sovereignty over natural resources has to be preserved as established in the rules and principles of international law (DPC, art.20). The state is the symbol of the national unity (DPC, art.13) that should never be harmed (DPC, art.7). Rights and freedoms of minorities are guaranteed in respect of political pluralism (DPC, art. 11). Mr. Nabil Sha’th declared before his first meeting of an Arab League committee that “Palestinians are looking forward to having a constitution that supports political freedoms, accepts the sovereignty of law and a multi-party system in an independent Arab Palestinian republic"[38]. Jerusalem should be the capital of Palestine and its seat of government (DPC, art.8). In Jerusalem should be the seat of Parliament (DPC, art.73). The law shall determine Palestine’s flag, motto, seals, emblems, and national anthem (DPC, art.9).

4. The question of Sovereignty

Sovereignty is the original, supreme, and unconditional power of absolute authority that, together with the people and the territory, represents one of the constitutive elements of a state. The constitutional charter for the future Palestinian state will not be different from other Arab States, which are an imitation of western constitutional charters. Sovereignty, as in most of Arab and World Constitutions, belongs to the people. The people are part of the Arab and Muslim nations, and as such have their particular way of understanding sovereignty. Sovereignty, therefore, belongs to Palestinian people (DPC, art.10). It is indispensable, that we clarify who is to be considered Palestinian, who has the right to Palestinian citizenship, and to end with some considerations of the Palestinian People, who are the holder of sovereignty.

4.1. Who is Palestinian?

In the Palestine National Charter (hereinafter PNCh) (PNCh, art.5)[39], a Palestinian is every Arab who normally resided in Palestine until 1947. Nor the BL neither the DPC give a definition to who is Palestinian[40]. It is also the case of the DOP, which recognised the Palestinian people, without providing a definition of who is to be considered Palestinian[41]. The DPC establishes who has the right of Palestinian citizenship within the Palestinian state: “Palestinian citizenship is secure and permanent for any Arab who lived in Palestine before May 1948” (DPC, art.25) while the BL provided that the question of Palestinian citizenship shall be regulated by law (BL, art.7). Since the BL and the DPC do not cancel all previous documents, especially the PNCh, the “Palestinian definition” as presented in the PNCh will not change.

4.2. Palestinian Citizens

According to the DPC, not all Palestinians are automatically considered to be Palestinian citizens. They will be considered such only in the cases where two conditions are fulfilled: first, to be Arab, without discrimination for sex or religion[42]; second, having lived in Palestine before 1948. If we examine art. 5 of PNCh[43] and art. 25 of DPC[44], we can notice the following:

-         The year-line is extended in the DPC until May 1948, the month of the proclamation of the State of Israel, and not 1947 (as in PNCh), the year of the UN repartition plan. This apparently meaningless change can totally switch the concept of Palestine: in the PNCh, Palestine can be only synonym to historical Palestine[45] since Israel was not yet created. In the DPC, indeed, Palestine can be considered the rest of historical Palestine, which did not make part of the State of Israel. This may resolve the question of Palestinians with Israeli citizenship,[46] since those Arabs, on the contrary of PNCh, would not have the right to Palestinian citizenship. This argument is very dangerous since those Palestinians who lived in actual Israel before 1948 and were forced to leave it[47], will not have the right to Palestinian citizenship.[48]

-         The PNCh establishes that “Jews who had normally resided in Palestine until the beginning of the Zionist invasion will be considered Palestinians” (PNCh, art. 6). This article can be considered superfluous in the DPC, since Palestinians now recognise the Israeli State (while in the PNCh, many articles speak about destruction of the Zionism and liberation of Palestine, the only Palestinians’ homeland). In this case, every Jewish man or woman[49] is a member of an Israeli nation, and as such has the right to citizenship in the State of Israel[50].  For those who live abroad, they have the right to “return” to Israel[51]. 

-         Living in a territory is an extremely wider concept in comparison with the residence.  That means that the number of people who would be considered to have Palestinian citizenship is more restricted.

-         The right to citizenship is transmitted from father to son (DPC, art.25). All sons of Palestinian women and daughters of Palestinian fathers will be excluded.[52] This further limitation on who has the right to Palestinian citizenship is limited to those Arabs that lived in Palestine before May 1948. Palestinian sons or daughters of Palestinian fathers and mothers after that date shall be considered Israeli or Palestinian citizens according to the place where they are born. This citizenship is permanent, and will not to be cancelled due to passage of time. Ways of losing or gaining Palestinian citizenship are to be determined by law  (DPC, art 25). The Palestinian refugees living abroad have the right to participate in designing the national public policies as the Palestinians living in the Palestinian State (DPC, art.67). The 150 members of the National Council are their representatives (DPC, art.70§2).

4.3. The Palestinian People

The Palestinian people believe in their right to practice self-determination (DPC, art.2). In case the DPC will be adopted after the creation of the Palestinian State, some may consider this principle as superfluous. It is not so, since the actual political situation imposes to proclaim this right in every occasion so as to avoid any misunderstanding: the Palestinian people do not accept only self-government, without a real sovereignty[53]. This claim of the Palestinian people on their right is not on the expense of anyone else. They claim equality with every other people[54]. In the DOP, there is no mention of the right of the Palestinian people in self-determination. Mr. Rabin recognised the PLO as the legitimate representative of Palestinian people; we read in the DOP: “The Government of Israel has decided to recognize the PLO as the representative of the Palestinian people and commence negotiations with the PLO within the Middle East peace process”. The DOP was entitled: “the declaration on self-government arrangements”.  It was the first step for the following agreements that gave birth, and later on, to the PNA. In the PNCh, this right of self-determination was continuously repeated in different modalities. It considers the right of the Palestinian people on their homeland, and so, the right to “determine their destiny” (DPC, art.2). Based on the right of self-determination, the Palestinian people have the right of sovereignty on their land[55] (DPC, art.2). Sovereignty, consequently, belongs to the Palestinian people (DPC, art.10)[56]; they are the source of authorities (DPC, art.67), and their will is the basis of the constitution (DPC, art.1). Similar principle is present in the Constitution of Egypt (art.3, 73), Syria (art.2§2), Libya (art.1) and Tunisia (preamble, art.3)[57].

The sovereignty of people project in two directions: - Towards the outside, and it means independence, within the international community; - Towards the inside, and it means originality. Their sovereignty shall be exercised through permanent representatives[58] and it is the source of the legitimacy of the political power. This legitimacy consists in the consensus of those who are governed[59]. 

The Palestinian people are a part of the Arab nation[60] (BL, art.1 and DPC, art.3). We have already mentioned that the first condition for Palestinian citizenship is to be Arab. The same thing we can say for the Palestinian State: it has necessarily to be Arab[61]. The DPC follow the steps of other Arab countries[62]. Arabic shall be the official language[63]  (BL 4.3 and DPC art.5), as it is for all Arab countries: Egypt, art.2; Syria, 4; Tunisia, art.1, Lebanon[64], art.11. In the 7^th DBL, art.5§A, we read: “Islam is official religion of Palestine and Arabic is its official language” as it is in the Egyptian, and the Tunisian constitution (respectively art.2 and 1). In the BL the two provisions are mentioned in different paragraphs in the same article (BL, art.4.1,3) In the DPC it is divided into two articles (art. 5 and 6). Art.3 of the DPC instead introduced also the concept of Islamic nation, and providing that the Palestinian people are a part of the Arab and Islamic nations[65].

5. Palestinian style of Government

The government’s styles mean the form of the state organization assumes to exercise the sovereign power. The system of Palestine shall be republican (DPC, art.4). Constitutional revision of the republican system of the state is not excluded (DPC, art.213). It is to be considered a democratic republic when the people conduct the government powers, whether directly or indirectly (through their legitimate representatives)[66], which the DPC confirms in art. 67. In case we want to classify the Palestinian form of government as presented by the BL and by the draft within the classical distinction of government forms, it will be clear that we will not be able to consider it a pure parliamentarian or presidential although it has some elements that, usually, distinguish this or that form of government. In the following paragraphs, our attention will be on the form of government as provided by the DPC.

The President of the State shall appoint the Prime Minister (hereinafter PM) who will name the ministers to the President (DPC, art.128). The nomination of the ministers is subordinated to the decision of the President since the nomination is considered as a proposal in the means of art.147, in preparation for presenting them to the Legislative Council. The PM and ministers should obtain confidence of the LC in the following session (DPC, art.148). The vote shall be conducted orally by roll call or by counting votes in the case of secret ballots (DPC, art. 94) following the procedures for voting (DPC, art.91) without indicating the majority needed. The government formulates the general policy that should be discussed by the parliament in a joint session and vote confidence in it in a joint session (DPC, art.96) after having proposed it to the President (DPC, art.147).

In case the Legislative Council (hereinafter LC) approves the proposal of a withdrawal of confidence of the government before the termination of authority (DPC, art.99), the President shall accept the resignation of the government and reformulate the government (DPC, art.100); besides, the government shall be considered to have resigned when it loses the confidence of the LC (DPC, art.163§4). In case of grave disagreement between the legislative and the executive branch, the President may call for a referendum so as to dissolve the LC (DPC, art.75). This option forms an exception to the rule included in art.74 that states, “The President of the state may not dissolve either of the two Councils”.

The President of state is the head of republic and the commander-in-chief of the armed forces (DPC, art.118); he shall be elected directly by the people (DPC, art.121). Consequently, the form of government in Palestine will be considered more semi-presidential than presidential, since it lacks the rigid separation of powers (DPC, art.69), typical of presidential. The President of the state, in fact, has large powers and is free of counter-signature; however, the government collaborates with the president side by side; even if nominated by the President. The government is always subject to the withdrawal of confidence by the LC.

6. Recent Constitutional Changes

The violent conflict in the Palestinian territories and Israel caused the end of negotiations between parties. The status of the Israeli-Palestinian agreements is uncertain and the provisions agreed upon until then where violated again. Critiques to the Oslo agreements are made from the inside and the outside, still, the PNA and the “Autonomous Territories” are there to remember us of those agreements which created facts on the earth, impossible to destroy, especially in the context of international consensus on the necessity to resolve the Israeli-Palestinian conflict, and the consensus on the two states solution.

The PA’s minister of planning, Nabil Sha’ath announced on January 4^th, 2002 that the PC of an envisioned Palestinian state would be drafted soon. It would include 220 provisions and would be based to a great extent on the major Palestinian legal system. This constitution is part of the reforms requested by the backed road map for peace, which calls for reforms and the establishment of a Palestinian state within 2005. Mr. Sha’ath said that he expected that the Constitution would be subject to popular referendum, which would accompany the presidential and parliamentary election, although in separate papers. The PLO Central Council –120 members- is the entity competent to discuss the draft that the committee presided by Mr. Sha’ath is preparing[67]. Reform in the PNA was imposed as a condition to re-start negotiations. Reform in the PNA was first the Palestinian people’s request, although not the real reason for conflict as some may think. In this context, the PNA started reforms according to the 100-days plan for emergency reform presented on June 23^rd, 2002 by the Ministerial Committee for Reform, appointed by the Palestinian president.

Formulating a constitution for the Palestinian state (to create) and, meanwhile, amending the BL recently endorsed by the President, would be necessary to guarantee the respect of the above principles. The first step was to create the office of the Prime Minister that the BL does not provide. The creation of the office of the Prime minister responds, first of all, to the Palestinian popular demand and to the International press to make reforms in the PNA. President Arafat nominated Mr. Mahmoud Abbas as Prime Minister on March 10, 2003. The PLC voted 64-3, 4 abstentions in favor of creating the office of prime minister. In the same meeting, the PLC adopted an amendment to the BL since it did not include this office. Besides the number of ministers is extended to a maximum of 24, not 19 as it was in the BL. Mr. Abbas is the secretary general of the PLO Executive Committee, and heads the PLO’s Negotiations Affairs Department, created in 1994 to oversee permanent status negotiations. The duties of the Prime Minister at that point were still to be defined.

Meanwhile, the DPC published in 2001, was recently reconsidered and the MOPIC published two other drafts for public discussions[68]. Here are some innovations: The First DPC was published on 14/2/2001, the second on 9/2/2003 (hereinafter 2^nd DPC) and the third almost one month later, on 7/3/2003 (hereinafter 3^rd DPC). The number of articles decreased: first DPC included 220 articles, the second 211, and the third 193. The House of Representatives (Parliament) is unicameral (2^nd DPC 69, 114-116, 3^rd DPC 67, 110-112) and no more bicameral as it was in the first DPC (1^st DPC 70). The House of Representatives has the power to ratify international treaties (2^nd DPC 83, 3^rd DPC 80) and not the President (1^st DPC 141).

Personally I do not believe that changing from pure presidential system to a semi-presidential will mean inevitably more sharing powers. Any way, Palestinians need a strong executive a central fast decision making power in this particular moment of negotiation. What do Palestinians need now is the end of occupation and the realization of their right to statehood. Democracy is also necessary; constitution, on the other hand shall give the necessary guaranties to control the power of the majority, and make it possible for minorities to be well represented and their interests well protected. Constitution shall guarantee transparency, accountability, power sharing, legality, rule of law, pluralism, and freedom of speech. These values may exist also in a country with a strong and centralized Executive but not in a country with a one-man rule. 

Asem Khalil

PhD. in Law

asemkhalil@gawab.com

 

asemkhalil@hotmail.com

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:

asemkhalil@gawab.com

 

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