A Text Analysis of the Palestinian State Constitution

I. Introduction

A. Why a Palestinian State Constitution

More than anything else, the Palestinian State Constitution represents the attempt to present to the world the face of a modern Palestinian state. The constitution is meant to present a hope that a dictatorship can turn into a democracy, that a regime built on terrorism can become peaceful, that a traditional society can embrace the tenets of modernity.

As a result, the European Union and the United States have focused on the drafting of a Palestinian constitution that would reflect a Western view of how a Palestinian state should look. Since 1997, Brussels and Washington have been financing and advising the effort and urged for the introduction of democracy, separation of powers and judicial independence as part of any state.

In 2002, Palestinian Authority Chairman Yasser Arafat initiated the Basic Law, regarded as interim constitution until the establishment of a Palestinian state. The Basic Law contained 112 articles that calls for regular presidential elections, and a separation of powers.

The Palestinian constitution is regarded as a key test of any Palestinian commitment to democracy. President George Bush has stressed that the United States wants to ensure Palestinian democracy before ensuring statehood.

B. The History of a Palestinian Constitution

The attempts to draft a Palestinian constitution preceded the 1993 Oslo agreement with Israel and negotiations for a Palestinian state. In October 1948, months after the declaration of the Jewish state of Israel, the Palestinians sought to assert their right to statehood. The newly-established Palestinian National Council presented what it termed a provisional constitution. The constitution was meant to establish an interim parliamentary regime in the first step toward statehood. Within three years, the Palestinian constitution was thrown into the dustbin. By 1952, Egypt was in complete control over the Gaza Strip and suppressed all signs of genuine Palestinian nationalism. Instead, Egypt issued constitutional documents for the Gaza Strip in 1955 and 1962. Jordan, which controlled the West Bank, issued a constitution in 1952. Both constitutions limited any effective expression of Palestinian political identity.

In 1988, the PNC declared Palestinian independence. The statement pledged to establish a democratic government and draft a constitution. Again, the PNC did little than focus on rhetoric. In 1993, however, Israel and the PLO signed an agreement that recognized each other and began a process that was seen as a march toward Palestinian statehood. Arafat appointed Dr. Anis Al-Qassem to coordinate the efforts of a constitution and the PLO’s legal committee then ordered the drafting of the Basic Law, an interim document meant to to govern the Palestinian Authority until a permanent constitution was written.

PA Chairman Arafat did little if anything to promote the constitution and refused to sign the Basic Law. The result was a vacuum in the Palestinian legal framework. Palestinian courts were based on a patchwork of Israeli, Egyptian and Jordanian law. In the end, the Basic Law was dismissed as failing to meet international demands for reform.

In 1999, the PLO Executive Committee established several committees to draft a constitution. The Arab League formed an advisory committee to both help and supervise the effort. A year later, several drafts were circulated but none of them was endorsed. In February 2001, Palestinians established another constitutional committee.

C. Major Issues of a Constitution

All drafts of a constitution have sought to address four key issues. They include system of government, rights and freedoms, the role of Islam and the link with the Palestinian diaspora. PA International Cooperation Minister Nabil Shaath, chairman of the constitution committee, said the latest effort to complete a constitution has included more than 40 drafts. A Western team, who included experts from Britain, Spain and the United States, helped in the wording of the text.

II. The Constitution

A. Those Deserving of Thanks

The preamble of the document — a third and dinal draft and presented on March 25, 2003 — contains a list of people thanked by Shaath and the committee that drafted the constitution. One would expect the appreciation and thanks to first go to those who financed the effort and advised the committee. This would have included the European Union, the United States State Department and the foundations that provided funding. This does not appear. Instead, the list of those thanked are the heads of Arab regimes friendly to the PLO.

The list reads like a Who’s Who of Arab despotism.

Egyptian President Hosni Mubarak leads the list. He is followed by Lebanese Prime Minister Rafik Hariri, Saudi Foreign Minister Saud Al Faisal, Arab League secretary-general Amr Mussa and his predecessor, Ismat Abdul Majid. Saudi Arabia has been termed by the State Department as a country that does not tolerate any freedom of religion apart from Islam. Egypt’s human rights record is one of the worst for a U.S. ally and has been consistently criticized by Washington. Lebanon has been consumed by the Syrian occupation and has destroyed any freedom of expression or human rights.

The reason for the thanks to the Arab regime leaders is that Arafat ensured that the constitution meets their approval. The Saudi-owned A-Sharq Al Awsat daily said the constitution was sent to several Arab countries and the responses were disappointing. The Arab regimes complained of the powers of Arafat. But in response, Shaath and his committee said the Palestinian draft is similar to that of Egypt, France and Syria. This explains the need to seek approval from such an Arab regime as Syria, now regarded as the most despotic in the Middle East.

B. The Nature of the State

The opening articles of the constitution focus on the nature of the proposed Palestinian state. There is plenty of text but the details are vague and the meaning is multiple. The main question is whether the Palestinians seek to establish a state that will not threaten Israel. The constitution leaves this question open.

Article (1)

“The State of Palestine is a sovereign, independent republic. Its territory is an indivisible unit based upon its borders on the eve of June 4, 1967, without prejudice to the rights guaranteed by the international resolutions relative to Palestine. All residents of this territory shall be subject to Palestinian law exclusively.”

In the Arabic version, the word “based” does not appear. This implies that this is the final border. The discrepancy does not appear to be coincidental. Palestinian officials and the PA-owned media have talked of a range of versions for this clause.

Article (2)

“Palestine is part of the Arab nation. The state of Palestine abides by the charter of the Arab League. The Palestinian people are part of the Arab and Islamic nations. Arab unity is a goal, the Palestinian people hopes to achieve.

This clause is as ambivalent as it is threatening. Arab unity has been cited as a goal for every act of Arab hostility, including the Iraqi occupation of Kuwait in 1990. Does this mean that a Palestinian state will seek to merge with Egypt and Jordan or Syria?

The link of a Palestinian constitution with the Arab League charter also begs the question of what does this mean for the Palestinian commitment to peace with Israel. The Arab League has never recognized Israel or its right to sovereignty, while remaining in a state of war with Israel. How does the charter of the Arab League mesh with any hope for Palestinian recognition of Israel?

Article (3)

“Palestine is a peace loving state that condemns terror, occupation and aggression. It calls for the resolution of international and regional problems by peaceful means. It abides by the Charter of the United Nations.”

This statement might be seen as benign if we were talking about most emerging states. But given the PA record of terrorism, the mendacity embedded in this “fact” is astounding. The PA has never fought Palestinian terror. It does not abide by the UN charter and has shown no inkling to become “peace-loving” or seek to resolve problems by peaceful means. Perhaps the key is “resolution of international and regional problems by peaceful means.” The Israeli-Palestinian conflict is not seen in this context.

Article (4)

“Jerusalem is the capital of the state of Palestine and seat of its public authorities.”

The Palestinian draft does not define what it means by Jerusalem. Neither the Arabic nor the English versions delineates the borders of the city, which was Israel’s capital before the 1967 war.

C. Islam and the State

The dichotomy of Islam and democracy is repeated throughout the constitution. Will Palestine be an Islamic state or a democracy that respects all? Some might argue that both can be achieved. But this argument holds no weight given the state sponsorship of Saudi Arabia of Al Qaida, Hamas and other Islamic groups — all in the name of peaceful Islam. Today, the adoption of state-sponsored Islam means the intention of an undemocratic Arab regime to trample civil and human rights in the name of religion.

Article (5)

“Arabic and Islam are the official Palestinian language and religion. Christianity and all other monotheistic religions shall be equally revered and respected. The Constitution guarantees equality in rights and duties to all citizens irrespective of their religious belief.”

There is no mention of Judaism here. Instead, Christianity is referred to although there are far more Jews than Christians in the West Bank and the Gaza Strip. Does this mean Jews have no right to exist in these areas?

The status of Islam as the official religion does not conform with the assertion that all religions are equal in the Palestinian state. Islam as practiced in the Arab states that sponsored the constitution simply does not recognize other religions. The PA has crushed non-Islamic religions while it has supported Hamas’s agenda. The PA has converted its radio and television into instruments of Islamic holy war. PA television indoctrinates children to hate Israelis as those who seek to destroy Islam and urges Muslim children to destroy Jewish symbols.

Article (7)

“The principles of Islamic Sharia are a major source for legislation. Civil and religious matters of the followers of monotheistic religions shall be organized in accordance with their religious teachings and denominations within the framework of law, while preserving the unity and independence of the Palestinian people.”

This completes contradicts Article 5. Sharia, especially as interpreted by Arab regimes, dismisses and represses other religions. It also violates human rights and demands supremacy of Muslims over non-Muslims. One can say that Israel has a similar law. But the difference is that the Israeli secular courts show no preference regarding religion while Sharia courts clearly have. Article 7 is clearly a sop to Saudi Arabia and Hamas.

D. The Palestinian Political System

A major part of the constitution discusses the future Palestinian political system. In truth, no political system can guarantee a dictatorship. But a clear document can at least serve to rally democratic forces. The Palestinian constitution does little more than rehash platitudes in a way that can only remind one of George Orwell’s “1984,” where truth was a lie and freedom meant slavery.

Article (8)

“The Palestinian political system shall be a parliamentarian representative democracy based on political pluralism. The rights and liberties of all citizens shall be respected, including the right to form political parties and engage in political activity without discrimination on the basis of political opinions, sex, or religion. The parties shall abide by the principles of national sovereignty, democracy and peaceful transfer of authority in accordance with the Constitution.”

This is disingenuous. Today, there is no political pluralism in Palestinian society. All of the factions in the Palestinian Legislative Council are wings of the PLO, each with its own militia. There is no place in the PLC for peace activists and the article does not provide any immunity from the executive branch and its security forces.

Article (9)

“Government shall be based on the principles of the rule of law and justice. All authorities, agencies, departments, institutions and individuals shall abide by the law.”

This article appears redundant unless the background of Palestinian government is understood. Simply put, the PA has flouted every law passed. The next two articles also fail to address the legacy of Arafat’s authoritarian rule.

Article (10)

“All activities of the Palestinian public authorities shall, in normal and exceptional circumstances, be subject to administrative, political, legal and judicial review and control. There shall be no provision of law which grants immunity to any administrative action or decision from judicial supervision. The state shall be bound to compensate for damages resulting from errors, and risks resulting from actions and procedures carried out by state officials in the pursuit of their duties.

Article (11)

“The independence and immunity of the judiciary are necessary for the protection of rights and liberties. No public or private individual shall be immune from executing judicial rulings. Any act of contempt of the judiciary shall be punishable by law.”

The constitution does not acknowledge or even seek to resolve the problem that any regime leader, is seen as above the law. This allowed the flouting of the law by those who spoke or acted for Arafat. But the constitution, as we will see later, made Arafat the center of Palestinian authority.

E. The Palestinian Right of Return

If there was any point the Palestinian could make in demonstrating its peaceful intention, it would be the determination of the future of Palestinian refugees and their ancestors. The PA claims that the number of refugees and their descendants now exceed 7 million. Pressing for the return of these people to what is now Israel guarantees the destruction of the Jewish state. The constitution, however, supports the right of return for Palestinians without any thought to the consequence for its Israeli neighbor or of a peaceful Middle East.

Article (12)

“Palestinian nationality shall be regulated by law, without prejudice to the rights of those who legally acquired it prior to May 10, 1948 or the rights of the Palestinians residing in Palestine prior to this date, and who were forced into exile or departed there from and denied return thereto. This right passes on from fathers or mothers to their progenitor.

It neither disappears nor elapses unless voluntarily relinquished. A Palestinian cannot be deprived of his nationality. The acquisition and relinquishment of Palestinian nationality shall be regulated by law. The rights and duties of citizens with multiple nationalities shall be governed by law.”

This is a change from the PLO covenant that says that a Palestinian is someone who arrived in the British mandate until 1947. It also grants rights to tens of thousands of Arab fighters who infiltrated the mandate on the eve of the Israeli war of independence. It is not clear what the constitution means by Palestinians who “legally acquire” Palestinian nationality. The transfer of Palestinian nationality from mother and father is beyond the nationality laws of any Arab state, which regards rights as stemming from the father.

Indeed, the next clause reaffirms the Palestinian right of return. It fits well with the preamble and other clauses that do not envision a termination of the Israeli-Palestinian conflict and the emergence of a peaceful Palestinian state.

Article (13)

“Palestinians who left Palestine as a result of the 1948 war, and who were denied return thereto shall have the right to return to the Palestinian state and bear its nationality. It is a permanent, inalienable, and irrevocable right. The state of Palestine shall strive to apply the legitimate right of return of the Palestinian refugees to their homes, and to obtain compensation, through negotiations, political, and legal channels in accordance with the 1948 United Nations General Assembly Resolution 194 and the principles of international law.”

Article 14 continues in this vein.

Article (14)

“Natural resources in Palestine are the property of the Palestinian people who will exercise sovereignty over them. The state shall be obligated to preserve natural resources and legally regulate their optimal exploitation while safeguarding Palestinian religious and cultural heritage and environmental needs. The protection and maintenance of antiquities and historical sites is an official and social responsibility. It is prohibited to tamper with or destroy them, and whoever violates, destroys, or illegally sells them shall be punishable by law.”

This is the basis for Palestinian claims over all water that stems from the West Bank or that flows into the Gaza Strip. The article contains no reference to cooperation with its neighbors regarding natural resources. In other words, this article ensures the basis of future conflict.

F. Palestinian Equality

Article (19)

“Palestinians are equal before the law. They enjoy civil and political rights and bear public duties without discrimination. The term ‘Palestinian’ or ‘Citizen’ wherever it appears in the constitution refers to both, male and female.”

There is no reference to residents of Palestine. In other words, those who are not citizens or regarded as Palestinians have no civil or political rights. Article 20 also reaffirms the absence of basic rights for those who are not deemed as Palestinian citizens.

Article (20)

“Human rights and liberties are binding and must be respected. The state shall guarantee religious, civil, political, economic, social and cultural rights and liberties to all citizens on the basis of equality and equal opportunity. Persons are not deprived of their legal competence, rights and basic liberties for political reasons.”

One can say that the first sentence provides a fig leaf to all in a Palestinian state. But the first sentence affirms a general right while the second sentence clearly limits this to citizens. The difference is significant in countries such as Saudi Arabia, which has a huge expatriate community.

Article (32)

“A foreign political refugee who legally enjoys the right of asylum may not be extradited. The extradition of ordinary foreign defendants shall be governed by bilateral agreements or international conventions.” This clause sounds liberal at best and benign at worst except when you realize that thousands of Al Qaida, Hizbullah and other terrorists are seeking refuge in PA areas. Are they regarded as political refugees? After all, Syria has been harboring hundreds of members of the Iraqi regime of President Saddam Hussein on the pretext that they are political refugees.

Article (36)

“Freedom of religion and religious practice is guaranteed by the Constitution. The state shall guarantee access to holy shrines that are subject to its sovereignty. The state shall guarantee to followers of all monotheistic religions the sanctity of their shrines in accordance with the historic commitment of the Palestinian people and the international commitments of Palestine.”

The constitution constantly refers to rights limited to “followers of all monotheistic religions.” What does this mean and who decides whether a religion is monotheistic. Is Judaism monotheistic or is it devil’s worship as Hamas claims? Then comes the kicker: the guarantee for freedom of access is in “accordance with the historic commitment of the Palestinian people and the international commitments of Palestine.” Does this mean that if Palestinians claim that Jewish presence in the Cave of the Patriarchs in Hebron threatens sovereignty then that right of access must be denied.

Article (37)

“Freedom of thought shall be guaranteed. Individuals shall have the right to express their opinions and publicize them in writing, speech, art, or other means of expression within the provisions of the law. The law may only apply minimal restrictions on the practice thereof so as to safeguard the rights and liberties of others.”

This article contains the restriction that completely nullifies freedom of thought. It does not say that freedom of thought that attacks the rights and liberties of others will not be tolerated. It talks of “minimal restrictions.” Indeed, the Arabic version does not have the last sentence.

Instead, it says that freedom of thought is guaranteed and includes respect of the rights of others.

Article (38)

“The right to publish newspapers or other means of the media is universal and guaranteed by the constitution. Financial sources for such purposes shall be subject to legal control.”

This article reflects both an expectation and a current reality. Newspapers in the PA are and will financed from abroad. The PA has gotten around this by ensuring that all of its daily newspapers are either owned outright or controlled by Arafat.

Article (39) “Freedom of the press, including print, audio, and visual media, and those working in the media, is guaranteed. The media shall freely exercise its mission and express different opinions within the framework of society’s basic values, while preserving rights, liberties and public duties in a manner consistent with the rule of law. The media may not be subject to administrative censorship, hindrance, or confiscation, except by court order in accordance with the law.”

Again, the right of freedom for the press is undermined by an unspecified proviso that the courts could stop freedom of the press. This is an important point, since Arafat controlled the court system and simply overruled any judge he felt like.

Article (45)

“The law shall regulate social security, disability and old age pensions, support to families of martyrs, detainees, orphans, those injured in the national struggle, and those requiring special care. The state shall guarantee them- within its capabilities- education, health and social security services and shall give them priority in employment opportunities in accordance with the law.”

This clause again guarantees that the Palestinian state will finance terror. The clause could have said that the state will provide for those injured in war or attack. Instead it talks of “martyrs” and “national struggle.” The only time this term is used is in reference to terrorist attacks on Israel. Martyrs have been used to denote Palestinian suicide attacks against Israel.

Article (52)

“The right to protest and strike shall be exercised within the limits of the law.”

Every Arab country has this clause and none of them allows for strikes. What are the limits of strikes?

Article (53)

“Citizens shall have the right to assume public office, on the basis of competence, merit and equal opportunity in accordance with the requirements of the law.”

Who will decide whether a candidate for public office is competent or meritorious? In democracies, candidates are elected. In Iran, a regime council screens candidates for competence?

Article (58)

“Basic rights and liberties may not be suspended. The law shall regulate those rights and liberties that may be temporarily restricted in exceptional circumstances in matters related to public security and national safety purposes. The law shall penalize the arbitrary use of power and authority.”

Exceptional circumstances is a term fraught with danger. The Palestinian leadership have explained all sorts of injustice by invoking this term. Egypt has maintained a state of emergency for more than 20 years. The article merely sets up the option of dictatorship.

Article (67)

“The House of Representatives shall be composed of (150) individuals, representing the Palestinian people. They shall be elected according to the Constitution and election law. When running for candidacy to the House of Representatives, the provisions stated in this Constitution and the election law shall be observed. Candidates for the House of Representatives must be Palestinian.”

This clause guarantees that minorities living in Palestinian state will not be represented. It does not define a Palestinian. As it turns out, a huge part of the constitution delves into details of the House of Representatives and the president. This is usually not what the constitution does. The English translation also calls the parliament “House of Representatives,” an apparent sop to the U.S.

Article (117)

“The president shall submit a financial statement relative to him, his/her spouse and minor children, detailing his movable or non-movable property and cash asset debts or dues in Palestine and abroad. They will be kept by the Constitutional Court.”

Does this mean that Arafat’s financial statement will never be released?

Article (124)

“The Speaker of the Council of Ministers, or the minister he appoints, shall negotiate international treaties, and inform the President of the State of the course of negotiations, which in turn have to be approved by the Council of Ministers and endorsed by the President.”

The Arabic version merely says “prime minister.” Why the discrepancy? What does “endorse by the president” mean? In the Arabic version it says “certified or confirmed.” The answer might be contained in the next clause.

Article (125)

“In addition to the Presidential prerogatives, the President enjoys the following privileges:

He heads, in exceptional cases, and during the State of Emergency, the Council of Ministers.

He issues alone the decree for the nomination of the prime minister and the decree accepting the resignation of the government or considering it resigned. Other decisions and protocols have to be jointly signed by the prime minister, and the minister or ministers concerned. The prime minister co-signs with the president of the state decrees of law, decrees of reevaluation of laws and decrees calling for exceptional meetings of the House of Representatives.

He addresses, when necessary, a non-debatable speech to the House of Representatives.

He forwards drafts of laws approved by the council of ministers to the House of Representatives.

He grants special pardons or reduction of sentences. Amnesty is by decree exclusively.

He heads official receptions and grants state decorations by decree.

This is the key to how the Palestinian constitution sees the future of Arafat’s successor, who will continue to wield tremendous power and the constitution ensures that he will continue to be a dictator. All he has to do is declare a state of emergency.

Article (127)

“The president of the state is the supreme commander of the Palestinian national security forces which is headed by a concerned minister.” This robs the prime minister of authority over the security forces.

Article (129)

“The president of the state, with the approval with the prime minister and consultation with the Speaker of the House of Representative, may declare a state of emergency if the security of the country is exposed to danger of war or natural disaster or siege threatening the safety of the society and continuity of operation of its constitutional institutions. The emergency measures must be necessary to restore public order, or the orderly functioning of the state’s authorities, or confront disaster or siege, for a period not exceeding thirty days, renewable by approval of two thirds of all the members of the House of Representatives, with the exception of state of war. In all cases, any declaration of a state of emergency must specify the purpose thereof, and the region and time period covered thereby.”

If the president can appoint a prime minister, then the latter’s input in the state of emergency is meaningless. Indeed, the constitution envisions the prime minister as being an extension of the president.

Notice how much space is given to state of emergency. This reflects the basis for what Arafat expected would take place immediately after state is formed.

III. Conclusion

The Palestinian constitution cannot be divorced from two basic facts.

One is the historic use of terrorism and brutality by the Palestinian leadership — primarily against its own people.

The other is that the Palestinian leadership has not changed and Arafat’s successor is expected continue his authoritarian rule. The constitution does not acknowledge or deal with this. Instead, it deals with platitudes and remains disingenuous throughout.