Constitutional Building in Palestine/ comparative approach
An-Najah University & Birzait University 15th of February 2021
On 22 December 2018, the Palestinian President declared that the constitutional court had decided to dissolve the Palestinian Legislative Council (PLC) and called for legislative elections. The following day, the Minister of Justice, explained that what the constitutional court had issued was the explanatory decision (10/2018) dated on 12 December 2018. The Minister of Justice then explained some of the reasons behind which the court took its decision: first, the PLC had not been functioning since being elected; and second, the PLC’s elections had not been held as was due in 2010. The constitutional court’s explanatory decision was then published, detailing its grounds.
According to the explanatory decision, the Constitutional Court decided that:
“1-the legitimacy of the PLC lies when practicing its legislative and oversight duties. Considering that it has not convened since 2007, the PLC has lost its status as a legislative authority, and thus as its status as the Legislative Council…5- The President of the State of Palestine shall call for holding legislative elections within six months from the date of publishing this decision in the Official Gazette.”
In this decision by the court, the PLC as a legislative body was completely removed from the political scene. That the Basic law (BL) does not reference the ways in which the PLC would be dissolved, this ruling is perhaps the constitutional courts’ most controversial and significant decision to date. In making its interpretation, the court once again used originalist approach, arguing that although the BL provides no mechanism for the dissolving of the PLC, it was only because the BL assumed the PLC would always be in session (except for scheduled vacations). Therefore, when considering the spirit of the drafters meaning when they initially wrote the BL, the court argued the BL had not taken into account the possibility of a perpetually suspended PLC, and if it had it would have provided the means for the PLC to be dissolved.
The resulting constitutional vacuum this decision by the court has now rendered the law-making abilities of the Palestinian government impotent. Previous to the court’s decision, during the suspension of the PLC, laws in Palestine were enacted by presidential decree via Article (43) of the BL, which provides the president with powers of legislation in order to make laws.However, according to one interpretation at least, this article is valid only whilst the PLC is not in session; with the PLC being dissolved the president can no longer make legally binding laws. Despite this requirement of article (43) for the PLC to be in session, currently the president is still using this article to issue decrees that has the power of laws, and has on many occasion used this capacity to enact laws that improve women’s rights.Technically, however, and following the above logic, the government in its entirety has now lost this ability to make laws legally binding due to the absence of a legislative body and the ineligibility of Article (43).
This situation that might change until February 2021 still poses a clear danger on how constitutional courts with a textual ambiguity can affect the constitutional building process and the separation of powers within the Palestinian case. Thus, there is a need to talk about the constitutional process in general and notice the constitutional gaps that might have occurred or occurring with the new drafting process that has started in 2016.
In order to give a solid background on the Palestine situation we advise you to Read the following.
The first juridical base for a Palestinian constituent power was established with the declaration of independence of the Palestinian State approved in the Palestinian National Council’s (PNC) 19th session at Algiers on November 15, 1988. Along with the declaration, the PNC adopted a resolution calling for the drafting of a constitutional text. With the signature of the Oslo Accords in 1993, and especially after Oslo II in 1995, the need for a constitutional text became urgent and imperative, and the agreements themselves required the drafting of a basic law for the Palestinian Authority. Article III-7 of Oslo II gave new grounds for the Palestinian constituent power, while also setting its limits: “The organization, structure and functioning of the Council [Palestinian Authority] 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.” It is in this context that the head of the Legal Committee of the PNC Anis Al-Qasem -assisted by Eugene Cotran- commenced the constitutional drafting. Between 1993 and 1995, they prepared 4 drafts that were discussed in unofficial circles in the West Bank and Gaza, but that were never approved by the executive Committee of the PLO.
Between 1996 and 1997, the newly elected Palestinian Legislative Council (PLC) continued the constitutional work, and it played a central role until the parliamentary approval of the Basic Law in October 1997. However, the parliamentarian drafting during 1996-1997 was marked by strong conflicts between the PLC and President Arafat regarding three main issues: First, the power of the PLC to initiate the constitutional drafting; Second, the content of the draft and the prerogatives of the President; Third, the presidential promulgation of the Basic Law once it was approved by the PLC. Despite the fact that the Basic Law passed by the PLC in 1997 gave strong prerogatives to the Executive, it was not promulgated by President Arafat and the constitutional process stalled. Between 2000 and 2003, international actors (fundamentally donor countries and Israel) acquired a determining, though no exclusive, role in the constitutional process. They, along with domestic actors, exerted strong pressure on President Arafat to reform the PA institutions and ‘de-concentrate power’. It resulted in the promulgation of the basic law (2002) and, later, in amendments to create the post of Prime Minister and to introduce a strong dose of parliamentarianism in the political regime (2003). However, this period continued to be marked by strong battles with the President, who was trying to maintain his power. Between 2004 and June 2007 the constitutional text was put to the test, first, with the death of President Arafat in November 2004. Indeed, a constitutionally sanctified and democratic presidential succession took place in January 2005. Later in 2005, the Basic Law was amended again and put to a more serious test for a second time with the victory of the Movement of Islamic Resistance (Hamas) in the parliamentarian elections of January 2006. A short time after the electoral victory of Hamas, the first signs of infighting between the Fatah president and the Hamas cabinet appeared, and, later, a wider and open political crisis surfaced. The situation was exacerbated by the fact that the 2003 amendments consecrated a constitutional regime which seemed to have two heads, the President and the Prime Minister. Several provisions weakened the political independence and executive prerogatives of the Prime Minister vis- à-vis the President and gave the President strong political status and powers to intervene in the political process. Finally, the conflict resulted in the division of the Palestinian Authority government and the subsequent suspension of the constitutional regime in June 2007.
Recently, the drafting of a definitive constitution for the Palestinian State, initiated by the PLO in 2003, has been revived. But given the battles that the drafting of the basic law, its application and its amendments elicited, the state of division dominating the Palestinian political scene, and the particular situation of occupied Palestine, the constitutional work and the choice of a stable political regime for Palestine open a wide range of questions: What does it mean to draft a constitution under occupation? What are the main social, political and juridical determinants of the constitutional work? Who are the main actors in this process and how do their own political positions and objectives influence it? Can this process be a real exercise of Palestinian political sovereignty, and to what extent the Oslo agreements continue representing a limit to the constitutional drafting? Indeed, these accords continue in application and they explicitly deprived the Palestinian Authority of the attributes of sovereignty naturally belonging to the contemporary concept of state. How then in a situation of occupation and without real sovereignty, could constitutional issues pertaining to the definitions of a sovereign state, be fully and appropriately discussed? More specifically: What kind of state do Palestinians want to build? Who is a Palestinian, and how could the Palestinian state integrate all its potential citizens? What should be the institutional relationship between the Muslim majority and the other confessional minorities existing in Palestinian society? What role is assigned to religion (Islam, but not only) in the legal and political system? What are the rights that its citizens, and especially women, will have? What kind of constitutional control is suitable to appropriately protect the principles of rule of law, and constitutional rights in Palestine? Finally, in the current state of division of the Palestinian political scene how can the constitutional text be the product of a national dialogue in the sense of an inclusive political process that secures stability for the political regime?
In our conference we would like to discuss all these topics as parts of the following three main aspects of constitutional building:
The ways in which constitutions are drafted, their content negotiated, agreed upon, and approved. Papers concerning comparative constitutional drafting, especially after the Arab spring, are highly welcome.
We are interested in the ways in which political regimes are chosen considering the particular social and political conditions of every country, and the ways governments are formed according to these regimes. Papers concerning types of political system, their practices, and their advantages and disadvantages are highly welcome.
We are interested in different systems of constitutional control and the role of constitutional courts in the political regime. We are seeking to illuminate the discussion regarding the role that the Palestinian constitutional court can play in the state building process and, more widely, in the Palestinian political regime. Thus, papers regarding constitutional justice are highly welcome.
The theme of the conference is not restricted to these three main areas, however, it is likely that papers addressing these issues will have more chances of being accepted.