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memri
March 4, 2003 No.
126

About the Palestinian Constitution

In response to increasing international pressure, the Palestinian Authority has stepped up its efforts at constitutional reform. The two main bodies involved in this endeavor are the Palestinian Legislative Council (PLC) and the Committee for Drafting the Constitution, headed by Nabil Sha'ath. The Basic Law – which was ratified by the PLC in 2002 and currently serves as a provisional constitution – did not meet international demands for reform. Therefore, under Sha'ath's leadership, the committee responsible for drafting the constitution is now working on its final draft. PA officials first stated it would be published in January 2003, and then February 2003, but up till now it has not yet been officially issued.

The Basic Law: A Provisional Constitution

The first Palestinian call for a constitution came in Algiers on November 15, 1988, when the Palestinian National Council declared Palestinian independence and undertook to set up a democratic government and a constitution.[1] In 1993, before the establishment of the PA, Yasser Arafat set up a committee headed by Dr. Anis Al-Qassem to draft a Basic Law to serve as a provisional document for the newly-formed PA until such time as a constitution could be drawn up. The committee prepared a number of drafts, the last of which was submitted to Arafat in late 1995, but Arafat did not approve it.[2]

After the PA was established, the PLC worked to draft its own Basic Law. This was in accordance with the terms of the interim Israel-PLO agreement signed September 28, 1995, under which the PLO undertook to establish a Palestinian council which would legislate the PA's Basic Law that will include no elements opposed to the spirit of the agreement.[3]

For its Basic Law, the PLC drew upon two documents: the Basic Law drafted by the committee headed by Dr. Al-Qassem, and a draft prepared by Al-Haqq', the Palestinian Non-Governmental Human Rights Organization. The PLC approved this Basic Law on its third and final reading on October 2, 1997.[4]The law was submitted to Arafat for approval, but was not accepted.[5]

Five years later, on May 29, 2002, under mounting international pressure, Arafat approved the PLC's Basic Law. The law came into force on July 7, 2002, and is regarded as a provisional constitution until the completion of the actual constitution upon the establishment of an independent Palestinian state.[6]

The Basic Law approved by Arafat defined Palestinian citizens' rights and freedoms, the role and powers of the PLC, the Executive Authority (the President, Cabinet, security forces and police, local government, and central government) and the Judiciary Authority. It also included laws for states of emergency and transitional laws.[7]

Arafat considered the Basic Law's approval to be part ofthe reform process. Asked by the United Arab Emirates daily Al-Bayanwhen he would begin implementation of political reforms, he said: "We are doing it. We had in effect already begun to do so when I signed the Basic Law, the Separation of Authorities Law, the Bank Law, [and] the PA Comptroller Law, and other reforms are on the way…"[8]

Hussam Khadhr, a PLC member from Nablus and member of the Fatah leadership, spoke of Arafat's sudden change of policy in approving the Basic Law, telling Al-Bayan: "I want to tell you a story so that it goes down in history. In 1998, the 18 members of the Political Committee of the PLC met with Chairman Arafat to discuss domestic Palestinian affairs, issues regarding the PLC, the Camp David talks, and other matters. At the same meeting, I asked Chairman Arafat to approve the Basic Law so it would be in force and so it would be possible to act on it. The Chairman was angered, as he often was, and told me: 'You ask me to sign the Basic Law?' I said to him, 'Yes, Abu Ammar,' because it is the father of the laws, and without it, it would be impossible to discuss any law or regulation. He said: 'Then you must wait until my death [and] attend my funeral, and after they lay me in my grave you can take my thumb, place it in ink, and sign the Basic Law.'"

"Why did Arafat sign the Basic Law now, after being adamant from 1994-2002 that he would not sign it? The motive for signing was his political survival. Carrying out the reforms as set out by Israel and the U.S. is the price [he must pay]. Reality leads us to [acknowledge] the fact that this leadership's mentality is not democratic and cannot coexist with the law…"[9]

The Committee for Drafting the Constitution

Amid April 1999 preparations for declaring a Palestinian state (planned first for May 4, 1999, then September 13, 2000, and then postponed again), the PLO Central Committee set up a committee headed by Minister of Planning and International Cooperation Nabil Sha'ath to draft a constitution. This committee received aid from the Arab League's Legal Committee, and financial and technical aid from Britain's Department for International Development.[10]This committee issued several versions of a draft of a constitution in July 2000,[11]September 2000,[12]and February 2001.[13] None of these were submitted to the PLC for approval.

In July 2002, following international pressure for reform, which included U.S. President George W. Bush's June 2002 speech, Arafat issued a presidential decree renewing the committee's activity.[14]Further pressure came from the January 2003 London Conference,[15]and the U.S. "road map" calling for the immediate establishment of a constitutional committee to draft a constitution underpinned by democratic foundations and calling for the appointment of a prime minister.[16]

Some senior PA officials resented the foreign demand for a constitution. In August 2002 Interior Minister Hani Al-Hassan told the London Arabic-language daily Al-Sharq Al-Awsat: "They insisted we sign the Basic Law, which is a sensitive matter. Arafat signed the Basic Law. Now they say there must be a constitution, not a Basic Law. Israel has no constitution, but has Basic Law[s]; Britain has no constitution either, but has Basic Law[s]. Why must we be the exception in the world? We must have both a Basic Law and a constitution, while we do not yet have a state. We will not sign the constitution."[17]

A similar statement came in January 2003 from PLC Chairman Ahmad Qurei', also known as Abu 'Alaa, the day after the London Conference and the British foreign secretary's announcement that a draft of a Palestinian constitution would be published within two weeks[18]: "We have a Basic Law that is appropriate for the present phase. Therefore, and because of the ambiguity regarding the future of several issues that must be included [in the constitution] such as borders, refugees, Jerusalem and others, preparing a constitution does not, despite its importance, head the agenda at this stage."[19]

Recent Efforts in Drafting the Constitution

Despite these objections, and following more international pressure, the committee headed by Nabil Sha'ath worked diligently on a draft of the new constitution.

Sha'ath noted that over the past three months the constitution had been completely rewritten more than 40 times, and that the committee was working day and night to draft it prior to the declaration of a Palestinian state – even though Israel has no constitution – because the Palestinian people are in a unique position. He said, "The drafting of the constitution began in 1998, when not one inch [of land] had been liberated… We are in a better situation than the Kurds or the Chechens, because we have attained the right to self-determination through lengthy struggle, partly armed and partly political. The constitution is a national symbol of the state for which we fight."[20]

Sha'ath also explained that after the draft is published there would be a reexamination of the reactions to it, and then a new draft would be written and presented to the Palestinian Central Council, which would decide whether to finalize it or whether it needed amendment. Next, the draft would be submitted to the PLC for approval,[21] and then to a referendum.[22]

Sha'ath denied that external elements were involved in the preparations for drafting the constitution, saying, "Only the Palestinian people, and none other, shall determine the future of the Palestinians." However, he noted that the Palestinians were being assisted by Egyptian, Moroccan, South African, and Irish experts. He also noted that Yasser Arafat was determined to draft a constitution, and that the PLC was acting in accordance with his explicit orders.[23]

A date for the publication of the Palestinian constitution has been announced many times, but the actual publication has not yet come about. On January 1, 2003, Sha'ath said that the committee had completed its work and that the constitution would be ready on January 7.[24]On January 2, he told a press conference that it would be submitted to the Central Council on January 9.[25]On January 9, Sha'ath said that it would be ready before the end of January,[26]but on January 22 he said that it would be ready within two weeks.[27]On February 4, 2003, Sha'ath announced that the constitution would be published the next day,[28]but it was not.

On February 9, 2003, a draft of the constitution was submitted to Yasser Arafat and the Central Council.[29]According to the London Arabic-language daily Al-Sharq Al-Awsat, a version of the constitution was also given to several Arab countries, which expressed reservations regarding the wide-ranging presidential powers it stipulated: the right to appoint a prime minister, dismiss the government, disband the PLC, declare war, sign agreements, draft the constitution, and oversee the executive authority. In response, Palestinian officials have said that it is a constitution for a presidential regime, exactly like the French, Egyptian, and Syrian constitutions.[30]

Main Issues in the Draft of the Constitution

Although the draft has yet to be published, some of its content can be deduced from a number of sources including: statements made by Sha'ath; a recent report in the London Arabic-language daily Al-Hayat that discussed the draft articles concerning nationality, refugees, borders, Jerusalem, and the appointment of a prime minister; and an unofficial version of the constitution published in the Palestinian Authority daily Al-Ayyam.

The Preamble

According to Al-Ayyam, the draft reads: "…By their heroic steadfastness in [this] place… the Arab Palestinian people has preserved its national identity in the face of waves of invaders. Palestine was the melting pot of the struggle between human civilizations. During this struggle, the Palestinians shaped their cultural heritage, which is based on spiritual, monotheistic supreme values, and throughout their long history also led their mythological Jihad against the world's ancient and modern imperialist forces… The constitution of the State of Palestine was aimed at legitimizing the Palestinian state institutions so that they continue their efforts in the international arena to obtain international aid to end the occupation and restore the Palestinians' national and individual rights."[31]

Al-Hayat reported that a section from the Declaration of Independence, written by the poet Mahmoud Darwish,[32]and approved by the Palestinian National Council in 1988 in Algiers, is to be included in the introduction to the constitution.

Citizenship

Nabil Sha'ath noted that the draft is to state that "every Palestinian born to Palestinian parents who lived on Palestinian lands prior to 1948 is a citizen of the Palestinian State – whether he lives within the 1948 borders [i.e. Israel], in the West Bank, in the [Gaza] Strip, or in the refugee camps."[33]He added, "The Palestinian state will be the only Arab Islamic state that allows the children of a Palestinian woman to be considered Palestinians."[34]

According to Al-Ayyam's version: "Palestinian citizenship will be granted in accordance with the law, without harming the right of anyone who obtained citizenship prior to May 15, 1948, or the rights of Palestinians who lived in Palestine prior to this date. This right is passed down from a father or mother to the offspring, and cannot be annulled or abolished, except in the case of voluntary renunciation. Citizenship must not be withheld from a Palestinian."[35]

Refugees and the Right of Return

During a workshop on "Palestinian Refugees and the Amended Draft of the Palestinian Constitution," held by The Palestinian Organization for the Defense of Palestinian Refugee Rights, Nabil Sha'ath said that the constitution will secure three rights: "The first is the right of every Palestinian refugee, within or without Palestine, to automatic [Palestinian] citizenship…[36]The second is [every refugee's] right to return to the village from whence he emigrated in 1948 – a right based on [U.N. General Assembly] Resolution 194. The third right is to compensation." Sha'ath explained that in 1949, according to the resolution, a refugee had the option of choosing either the right of return or the right to compensation, but that 54 years later (because of the constitution) the refugee's right to compensation is separate from his right to return. Compensation is for property and suffering caused over the years.[37]

According to Al-Hayat, the constitution states, "The state of Palestine is the state of all Palestinians. Every Palestinian living on Palestinian lands or outside them has the right to return to the Palestinian state and is entitled to citizenship. This is a perpetual right that cannot be waived and to which no [statute of] limitations applies."

"The Palestinian refugees exiled from their homes because of the 1948 Israeli invasion and the establishment of [the State of] Israel have the right to return, in accordance with U.N. General Assembly Resolution 194 of 1948. The Palestinian State will work towards the implementation of this right using all legitimate means."

"The Palestinian state and the Palestinians who left their homes because of the establishment of the State of Israel in 1948 or because of the Israeli invasion of the West Bank and Gaza Strip in 1967 have the right to compensation for the land and [real estate] property usurped from them or destroyed, and a right to compensation for the suffering and material and mental damage caused [to] the refugees and displaced persons; this is a natural right not subject to any [statute of] limitations. The Palestinian State will continue [to act] to attain these rights, in all ways, in accordance with the principles of international law and through negotiations and international courts."[38]

A shorter version appeared in Al-Ayyam:"The Palestinian's return to the Palestinian state and the holding of citizenship [of the Palestinian state] is a perpetual right not subject to annulment or [statute of] limitations."

"The Palestinian state will act to implement the Palestinians' legitimate right to return and to receive compensation, through negotiation and political and legal means, in accordance with U.N. Resolution 194 of 1948, and in accordance with the principles of international law."[39]

Jerusalem and Borders

Nabil Sha'ath explained that the issue of borders is the subject of much discussion: "It is still being discussed, whether to talk of 1967 borders, or of borders according to U.N. Resolution 181, or not to talk about them at all." [40]

A month later, Sha'ath said that the committee would present two versions of the draft article on borders to the Central Council. The first would leave the matter of borders for later discussion and link them to the U.N. resolutions, whereas the second would set the borders as the borders of the territories occupied in 1967, including Jerusalem. The Central Council will be the body deciding which wording will appear in the constitution.[41]

According to the draft in Al-Ayyam, "the State of Palestine is an independent sovereign republic whose territory is a unit indivisible within its borders up to June 4 [sic], 1967, without detracting from the rights approved by international resolutions regarding Palestine. All residents of this region are subject solely to Palestinian law."

The alternative proposal was: "The State of Palestine is a sovereign republic whose territory is a unit indivisible within its borders [that were] recognized by the U.N. resolutions. All residents of this region are subject solely to Palestinian law."[42]

According to Al-Hayat, there is a third option: "not to mention the borders, since most constitutions in the world do not mention the borders of the state."[43]

Al-Hayat also reported that the draft reads: "Jerusalem is the capital of the Palestinian state and the seat of its public institutions."[44]

Arafat's Powers and the Appointment of a Prime Minister

On the issue of appointing a Palestinian prime minister, Nabil Sha'ath said: "[The Americans] want us to have a prime minister, while they are the only country in the world that does not have a prime minister." Nevertheless, he stated that his committee was working on establishing the position of prime minister in the constitution, since the "matter of a prime minister [had] been in the first draft of the constitution since 1999, and therefore it was not [the Americans] who invented it."[45]

The draft published in Al-Ayyam read as follows:"The President will be elected directly by the people for a five-year term that can be renewed [only] once... The President of the State is the supreme commander of the Palestinian security forces. He will represent the state in its foreign relations, [either] directly or by empowering whomsoever he sees fit… The President of the State will appoint the ambassadors and representatives of the Palestinian State in countries and international and regional organizations, and will terminate their service at the recommendation of the Foreign Minister… The President will direct the Cabinet in outlining the general policy to be presented for discussion and approval by the PLC. The President of the State will nominate a Prime Minister from the party with the most seats in parliament, following consultation with the parliamentary blocs… The President of the State will approve the laws after their approval by the PLC within 30 days of their transfer to him, and he will instruct that they be published."[46]

Concerning the prime minister and his powers, the Al-Ayyam draft said: "The Prime Minister will put together the government and present the composition [of the government] to the President, noting the ministry designated for each minister. The Prime Minister will present the members of government and the government's plans to the PLC for a vote of confidence. The Prime Minister will act to implement the laws, and to coordinate the government's policy and its plans as approved by the PLC."

"The Prime Minister will have the following powers: 1) He will chair the Cabinet, with the exception of meetings at which the President is present. 2) He will represent the cabinet to the President and to other public institutions. 3) He will exercise vigilance over the implementation of laws and regulations. 4) He will order the issue of laws approved by the PLC. 5) He will sign executive and administrative decrees. 6) He will exercise vigilance over the proper management of the public administration. 7) He will coordinate governmental work. 8) He will propose draft laws. 9) He will approve appointments to positions in all ministries. 10) Any other power set out by law." [47]

The National Advisory Council

According to Al-Ayyam, a Palestinian National Advisory Council is to be established. Apparently, this council is slated to replace the Palestinian National Council, though this is not stated openly.

The Al-Ayyam draft reads: "An independent Palestinian National Advisory Council will be established, [to be] comprised of 150 members. The council members will be chosen in accordance with the [demographic] distribution of the Palestinians, within and without Palestine… The President will be entitled to appoint to this council a maximum of ten individuals without Palestinian citizenship who have loyally served the Palestinian cause."

According to the Al-Ayyam draft, the National Advisory Council is to have the following powers: "Studying the general strategic problems and making proposals in this matter; making proposals in all things concerning national rights, [vigilance regarding] the integrity of the Palestinian land and the rights of the Palestinians outside Palestine; discussion of amendments to the constitution and expressing opinions on the matter; [discussion] of matters to be presented by the President on general policy, inter-Arab and foreign issues of the State of Palestine; [discussion of] drafts of laws concerning Palestinians [residing] outside Palestine to be presented by the President of the State to the council…"

"The National Advisory Council will submit its decisions and recommendations to the President of the State who will instruct that they be published in the official records, as well as to the Prime Minister and the PLC head."[48]

Changing the Constitution

According to Al-Hayat, Articles 220 and 222 of the constitution state that the wording of the constitution can be changed at any time: "In the event of a request from the President of the State or from at least one third of the PLC members, any of the constitution's articles can be amended or annulled, as long as it does not constitute a renunciation of any of the rights of the Palestinian people concerning which there is no [statute of] limitations, and as long as it does not harm the foundations of Palestinian society… The amendment must be submitted to a referendum. In the event that the amendment proposal obtains the agreement of a majority of the participants in the referendum, it will be approved and will come into force upon the publication of the referendum results."[49]


[1]See Palestinian Center for Policy and Survey Research, http://www.pcpsr.org/arabic/cfr/full2.html

[2]Rachelle Marshall, "With Two Engineers at the Throttle, Is Peace Train Stopping or Starting?," http://www.wrmea.com/Washington-Report_org/www/backissues/0496/9604017.htm

[3]See Article 2 of agreement, posted by the Center for Palestinian Research, http://www.qudsway.com/Links/derasat/Documents/Html_Documents/hdo5.htmand the Palestinian Center for Research and Political Survey: http://www.pcpsr.org/arabic/cfr/full2.html

[4]See http://www.pcpsr.org/arabic/cfr/full2.htmland the Palestinian Center for Human Rights, www.pchrgaza.org

[5]Adrien K. Wing, "The Palestinian Basic Law," http://www.palestinecenter.org/cpap/pubs/20020730ib.html

[6]www.jmcc.org/

[7]Al-Quds (Palestinian Authority), July 12, 2002. The final draft of the law was published in Al-Ayyam, (PA) June 1, 2002.

[8]Al-Bayan (UAE), June 10, 2002.

[9]Al-Bayan (UAE), July 28, 2002.

[10]Nathan Brown, "Drafting a Palestinian Constitution: Hope for Democratic Governance?," www.palestinecenter.org/cpap/pubs/20010301ib.html;

David Schenker, "Statehood, Final Status, and the Future Role of the PLO: Will the Conflict End with

Independence?," http://www.washingtoninstitute.org/watch/Peacewatch/peacewatch2000/276.htm; see also Department for International Development, http://www.dfid.gov.uk

[11]The plan for the provisional constitution included elements similar to those in the Basic Law [see below], with six chapters – General Law, Rights and Freedoms, The Legislative Authority, The Executive Authority, The Judiciary Authority, and other General Laws – and 180 articles. For a complete version of the draft see Al-Hayat Al-Jadida (PA), July 20-26, 2002.

[12]Al-Hayat (London), September 17, 2000.

[13]http://www.mopic.gov.ps/key_decuments/constitution.asp

[14]Al-Quds (Palestinian Authority), July 12, 2002.

[15]Al-Hayat (London), January 15, 2003.

[16]Al-Ayyam (Palestinian Authority), December 24, 2002.

[17]Al-Sharq Al-Awsat (London), August 4, 2002.

[18]Al-Hayat (London), January 15, 2003.

[19]Al-Ayyam (Palestinian Authority), January 16, 2003.

[20]Al-Hayat Al-Jadida (Palestinian Authority), January 10, 2003.

[21]Al-Quds (Palestinian Authority), February 9, 2003.

[22]Al-Ayyam (Palestinian Authority), January 23, 2003.

[23]Al-Ayyam (Palestinian Authority), December 17, 2002.

[24]Al-Ayyam (Palestinian Authority), January 2, 2003.

[25]Al-Hayat (London), January 3, 2003.

[26]Al-Hayat Al-Jadida (Palestinian Authority), January 10, 2003.

[27]Al-Ayyam (Palestinian Authority), January 22, 2003.

[28]Al-Ayyam (Palestinian Authority), February 5, 2003.

[29]Al-Quds (Palestinian Authority), February 10, 2003.

[30]Al-Sharq Al-Awsat (London), February 17, 2003.

[31]Al-Ayyam (Palestinian Authority), February 17, 2003.

[32]Al-Hayat (London), February 3, 2003.

[33]Al-Hayat (Jordan), December 17, 2002.

[34]Al-Ayyam (Palestinian Authority), January 23, 2003.

[35]Al-Ayyam (Palestinian Authority), February 17, 2003.

[36]Sha'ath noted that since Israel and Jordan could object to this phrasing of the right of return, this draft of the constitution differentiates between a Palestinian who emigrated and a Palestinian who remained on his land. The emigrants have an automatic right to citizenship, while Jordan will allow Palestinian refugees in its territory to choose between Palestinian or Jordanian citizenship.

[37]Al-Quds (Palestinian Authority), February 9, 2003.

[38]Al-Hayat (London), February 3, 2003.

[39]Al-Ayyam (Palestinian Authority), February 17, 2003.

[40]Al-Ayyam (Palestinian Authority), December 23, 2002.

[41]Al-Ayyam (Palestinian Authority), January 22, 2003.

[42]Al-Ayyam (Palestinian Authority), February 17, 2003. The Al-Hayat version differs from the Al-Ayyam version in the wording of the first two Articles, as follows: "An independent Palestinian State with full sovereignty over its territory is a unit indivisible within its recognized borders [which are] based on U.N. resolutions. Any resident of this area will be subject solely to Palestinian law." An alternative proposal states: "The territory of the independent Palestinian state is a unit indivisible within the Gaza Strip, the West Bank, and Jerusalem in its borders on the eve of the Israeli occupation on June 5, 1967, and it [i.e. this unit] cannot be relinquished. The state works toward the return of [the area] through legitimate means, as set out by international law and by the U.N. resolutions." See: Al-Hayat (London), February 3, 2003.

[43]Al-Hayat (London), February 3, 2003.

[44]Al-Hayat (London), February 3, 2003. Also Al-Ayyam (Palestinian Authority), February 17, 2002.

[45]Al-Ayyam (Palestinian Authority), January 23, 2003.

[46]Al-Ayyam (Palestinian Authority), February 17, 2003.

[47]Al-Hayat (London), February 3, 2003.

[48]Al-Ayyam (Palestinian Authority), February 17, 2003.

[49]Al-Hayat (London), February 3, 2003. A similar article also appeared in Al-Ayyam (Palestinian Authority), February 17, 2003.