[NB: Dr. Brown is perhaps the first American scholar to comment on the final draft Palestinian Constitution (as published in Al-Ayyam newspaper this week), which is now ready for submission to the Central Committee of the PLO. Once the PLO Central Committee has approved it, the constitution will be voted on in public referendum – The Middle East Institute.]
While a Palestinian state seems as distant as ever, the process of writing its constitution has become closely connected to recent international and Palestinian debates about reform and governance. The committee charged by the PLO to draft a constitution for a Palestinian state is due to release its work this month and has already leaked a copy to the daily Al-Ayyam this week. The entire project is caught in a difficult combination of internal and external pressures. The committee's February 2003 draft goes a long way to answer many diverse demands, but significant issues and controversies remain.
Comments
Prime Minister: External and internal supporters of Palestinian reform are both united in their desire to see a strong prime minister. Part of the motivation is personal: 'Arafat's leadership style as president impedes the efforts of domestic reformers. The international constituency has another motivation: empowering a prime minister might make a compromise possible between the American and Israeli governments (who insist on 'Arafat's replacement) and Palestinians who insist on the right to pick their own leaders.
The idea of a Palestinian prime minister is hardly new or radical. Most Arab states have prime ministers without diminishing the authority of their president or king. Interim drafts of the Basic Law also provided for the position, though the idea was finally dropped, partly because the Oslo Accords made no provision for it. Since the constitution committee began work in 1999—long before any American official or Palestinian public interest—a prime minister has been part of their plans.
What matters, therefore, is not the creation of the position but the powers granted to it. Drafters have devoted much attention to the relative powers of the president and the prime minister; indeed, there are few areas in which the language shows more signs of careful phrasing and hidden debates. In general, the committee has worked to contain presidential power, sometimes quite sharply, though they have stopped short of converting the presidency into a purely ceremonial position. The president does retain some authority: he heads the "national security forces" (though not the police), conducts foreign relations, and, if he chooses to attend cabinet meetings, he may chair them. The drafters have used very specific language designed to ensure that the president exercises his authority through, rather than around, normal legal institutions and channels. Most of his appointment powers require the consent of the parliament or another body or official. The drafters have gone still further, transferring important authorities to the prime minister and the cabinet and specifying that matters not given to the president by the constitution are to be within the competence of cabinet.
Nevertheless, it remains unclear how the Palestinian system—were it ever enacted—would work in practice. A technocratic prime minister might require constant international pressure to operate independently of the president. A prime minister with strong support from a political party and with backing of the parliament could probably emerge as an independent figure, eventually edging out the president in influence. But such a development might be limited as long as 'Arafat—head not only of the Palestinian Authority (PA) but also of Fatah, the largest Palestinian political party—remains on the scene. Ultimately, the 2003 draft may not go far enough to satisfy American and Israeli concerns, but it may do much to answer gentler European and Palestinian critics.
Empowering the negotiators: The 2003 draft constitution will be judged domestically and internationally by what it says (or omits) on two critical national issues: refugees and borders. The drafters rejected one possible path—ignoring both issues on the grounds that few constitutions anywhere define such matters. But they have taken steps to ensure that the constitution will not simply hamstring Palestinian leaders but also authorize them to negotiate such issues. On refugees, the earlier 2001 draft extended Palestinian citizenship to all Palestinians throughout the world and converted the Palestinian National Council (PNC) into an upper house of the parliament, representing the Palestinian diaspora. Most problematically, it included a clause affirming every Palestinian's right to return to his original "home" and not merely homeland, also stating that the right could not bedelegated, effectively preventing any negotiation on the issue. The 2003 draft retreats on these issues: citizenship is still extended to all Palestinians, but the PNC is converted from a full upper house to an advisory body. On refugees, the draft proclaims the right to return to the "State of Palestine" but enjoins the state to pursue their right to return to their original homes and villages or to receive compensation.
Borders proved so difficult that the 2003 draft proposes two possible alternatives: the first simply refers to "recognized borders" and to unspecified UN resolutions. The second suggestion specifically provides for the June 1967 borders. Regardless of which alternative is chosen, the draft requires any treaty affecting Palestinian land to obtain approval in a popular referendum.Islam: One of the most contentious issues—both domestically and internationally—has been the place of Islam. The 2003 draft proclaims, "Islam is the official religion in Palestine. Christianity and other heavenly religions receive sanctity and respect. The constitution guarantees to all citizens equality in rights and duties regardless of their religious beliefs." Further, "the principles of the Islamic shari`a are a principal source of legislation." This is coupled with very strong language on gender equality. The experience of other Arab countries suggests that the language on such matters is so general (with the exception of gender issues, where more specific phrasing is used) that the impact of these clauses would be restricted to the level of symbolism. It is less important how the constitution mentions Islamic law (though the references to the "principles" forming "a" source of law is relatively weak), and far more important how personal status law (which is based on religious sources) interprets and applies religious teachings. In this regard, it is important to note that Palestinians have been drafting a law of personal status, though the process has been extremely slow.
Background
The effort to draft a Palestinian constitution has seen sudden bursts of activity alternate with sustained lulls. In 1988 the Palestinian National Congress (representing Palestinians throughout the world) declared a Palestinian state and authorized a committee to begin work on drafting a constitution. That project began at a glacial pace but took on some urgency with the 1994 creation (under the Oslo Accords) of the Palestinian Authority (PA), governing Palestinians in the West Bank and Gaza. The newly-elected Legislative Council assumed responsibility for the project in 1996. Its product, the "Basic Law"—an interim constitutional document for the PA—was finished in 1997, but it was not approved by Yasir 'Arafat until 2002 and still has not been fully implemented.In 1999, the PLO's Central Committee authorized a wholly new and separate effort, this time not for an interim body but to accompany a declaration of statehood. Yasir `Arafat named cabinet minister Nabil Sha'th and a committee of legal figures to begin work. In 2001, the committee produced a draft, though it received little public attention in the midst of the Intifada.
In May 2002, reform of Palestinian institutions suddenly returned to the domestic and international agenda. At first, constitutional issues arose only in internal debates, but in June 2002, US President George W. Bush publicly called for a "new constitution," an empowered parliament, and "a new and different Palestinian leadership." Nabil Sha'th quickly responded by submitting a revised version of the 2001 draft constitution to the American leadership, but this modified document was stillborn: it did not respond to American concerns and had been modified outside the committee, seriously undercutting its legitimacy.
A more serious effort to revise the 2001 draft began in late 2002. The committee was reconvened, and its membership was widened to include political leaders and activists. Since December 2002, multiple drafts have been circulated among interested parties and experts. This final committee draft is now to be submitted to the PLO Central Committee and then presented for public comment. The committee hopes—and the constitution provides—for a public referendum to approve a final version. Since the document unabashedly presents itself as the constitution of a Palestinian state, such approval would be tantamount to a declaration of statehood.
Disclaimer: Assertions and opinions in this Commentary are solely those of the above-mentioned author(s) and do not reflect necessarily the views of the Middle East Institute, which expressly does not take positions on Middle East policy.
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[NB: Dr. Brown is perhaps the first American scholar to comment on the final draft Palestinian Constitution (as published in Al-Ayyam newspaper this week), which is now ready for submission to the Central Committee of the PLO. Once the PLO Central Committee has approved it, the constitution will be voted on in public referendum – The Middle East Institute.]
While a Palestinian state seems as distant as ever, the process of writing its constitution has become closely connected to recent international and Palestinian debates about reform and governance. The committee charged by the PLO to draft a constitution for a Palestinian state is due to release its work this month and has already leaked a copy to the daily Al-Ayyam this week. The entire project is caught in a difficult combination of internal and external pressures. The committee's February 2003 draft goes a long way to answer many diverse demands, but significant issues and controversies remain.
Comments
Prime Minister: External and internal supporters of Palestinian reform are both united in their desire to see a strong prime minister. Part of the motivation is personal: 'Arafat's leadership style as president impedes the efforts of domestic reformers. The international constituency has another motivation: empowering a prime minister might make a compromise possible between the American and Israeli governments (who insist on 'Arafat's replacement) and Palestinians who insist on the right to pick their own leaders.
The idea of a Palestinian prime minister is hardly new or radical. Most Arab states have prime ministers without diminishing the authority of their president or king. Interim drafts of the Basic Law also provided for the position, though the idea was finally dropped, partly because the Oslo Accords made no provision for it. Since the constitution committee began work in 1999—long before any American official or Palestinian public interest—a prime minister has been part of their plans.
What matters, therefore, is not the creation of the position but the powers granted to it. Drafters have devoted much attention to the relative powers of the president and the prime minister; indeed, there are few areas in which the language shows more signs of careful phrasing and hidden debates. In general, the committee has worked to contain presidential power, sometimes quite sharply, though they have stopped short of converting the presidency into a purely ceremonial position. The president does retain some authority: he heads the "national security forces" (though not the police), conducts foreign relations, and, if he chooses to attend cabinet meetings, he may chair them. The drafters have used very specific language designed to ensure that the president exercises his authority through, rather than around, normal legal institutions and channels. Most of his appointment powers require the consent of the parliament or another body or official. The drafters have gone still further, transferring important authorities to the prime minister and the cabinet and specifying that matters not given to the president by the constitution are to be within the competence of cabinet.
Nevertheless, it remains unclear how the Palestinian system—were it ever enacted—would work in practice. A technocratic prime minister might require constant international pressure to operate independently of the president. A prime minister with strong support from a political party and with backing of the parliament could probably emerge as an independent figure, eventually edging out the president in influence. But such a development might be limited as long as 'Arafat—head not only of the Palestinian Authority (PA) but also of Fatah, the largest Palestinian political party—remains on the scene. Ultimately, the 2003 draft may not go far enough to satisfy American and Israeli concerns, but it may do much to answer gentler European and Palestinian critics.
Empowering the negotiators: The 2003 draft constitution will be judged domestically and internationally by what it says (or omits) on two critical national issues: refugees and borders. The drafters rejected one possible path—ignoring both issues on the grounds that few constitutions anywhere define such matters. But they have taken steps to ensure that the constitution will not simply hamstring Palestinian leaders but also authorize them to negotiate such issues. On refugees, the earlier 2001 draft extended Palestinian citizenship to all Palestinians throughout the world and converted the Palestinian National Council (PNC) into an upper house of the parliament, representing the Palestinian diaspora. Most problematically, it included a clause affirming every Palestinian's right to return to his original "home" and not merely homeland, also stating that the right could not bedelegated, effectively preventing any negotiation on the issue. The 2003 draft retreats on these issues: citizenship is still extended to all Palestinians, but the PNC is converted from a full upper house to an advisory body. On refugees, the draft proclaims the right to return to the "State of Palestine" but enjoins the state to pursue their right to return to their original homes and villages or to receive compensation.
Borders proved so difficult that the 2003 draft proposes two possible alternatives: the first simply refers to "recognized borders" and to unspecified UN resolutions. The second suggestion specifically provides for the June 1967 borders. Regardless of which alternative is chosen, the draft requires any treaty affecting Palestinian land to obtain approval in a popular referendum.Islam: One of the most contentious issues—both domestically and internationally—has been the place of Islam. The 2003 draft proclaims, "Islam is the official religion in Palestine. Christianity and other heavenly religions receive sanctity and respect. The constitution guarantees to all citizens equality in rights and duties regardless of their religious beliefs." Further, "the principles of the Islamic shari`a are a principal source of legislation." This is coupled with very strong language on gender equality. The experience of other Arab countries suggests that the language on such matters is so general (with the exception of gender issues, where more specific phrasing is used) that the impact of these clauses would be restricted to the level of symbolism. It is less important how the constitution mentions Islamic law (though the references to the "principles" forming "a" source of law is relatively weak), and far more important how personal status law (which is based on religious sources) interprets and applies religious teachings. In this regard, it is important to note that Palestinians have been drafting a law of personal status, though the process has been extremely slow.
Background
The effort to draft a Palestinian constitution has seen sudden bursts of activity alternate with sustained lulls. In 1988 the Palestinian National Congress (representing Palestinians throughout the world) declared a Palestinian state and authorized a committee to begin work on drafting a constitution. That project began at a glacial pace but took on some urgency with the 1994 creation (under the Oslo Accords) of the Palestinian Authority (PA), governing Palestinians in the West Bank and Gaza. The newly-elected Legislative Council assumed responsibility for the project in 1996. Its product, the "Basic Law"—an interim constitutional document for the PA—was finished in 1997, but it was not approved by Yasir 'Arafat until 2002 and still has not been fully implemented.In 1999, the PLO's Central Committee authorized a wholly new and separate effort, this time not for an interim body but to accompany a declaration of statehood. Yasir `Arafat named cabinet minister Nabil Sha'th and a committee of legal figures to begin work. In 2001, the committee produced a draft, though it received little public attention in the midst of the Intifada.
In May 2002, reform of Palestinian institutions suddenly returned to the domestic and international agenda. At first, constitutional issues arose only in internal debates, but in June 2002, US President George W. Bush publicly called for a "new constitution," an empowered parliament, and "a new and different Palestinian leadership." Nabil Sha'th quickly responded by submitting a revised version of the 2001 draft constitution to the American leadership, but this modified document was stillborn: it did not respond to American concerns and had been modified outside the committee, seriously undercutting its legitimacy.
A more serious effort to revise the 2001 draft began in late 2002. The committee was reconvened, and its membership was widened to include political leaders and activists. Since December 2002, multiple drafts have been circulated among interested parties and experts. This final committee draft is now to be submitted to the PLO Central Committee and then presented for public comment. The committee hopes—and the constitution provides—for a public referendum to approve a final version. Since the document unabashedly presents itself as the constitution of a Palestinian state, such approval would be tantamount to a declaration of statehood.