Pre-Basic Law Constitutional History:

During the British Mandate, documents were issued recognizing Palestine’s existence as a legal entity. All real authority was in the hands of the British High Commissioner. In 1948, the Palestinian National Council (PNC) issued a very sketchy provisional constitutional declaration, which never came into effect. During its period of control, Egypt issued constitutional documents for the Gaza Strip in 1955 and 1962. After annexing the West Bank, Jordan’s 1952 constitution applied to that area. When Israel began its occupation in 1967, it issued proclamations assigning constitutional authority to the Israeli military governor. None of these documents would be very useful to the drafters of the Basic Law.

On 15 November 1988, the PNC of the PLO issued a Declaration of Independence, dedicated to a democratic parliamentary system, freedom of expression, equality, a constitution, the rule of law, and an independent judiciary. These sentiments would be elaborated upon as a result of the Oslo Accords.

Genesis of the Basic Law:

After the PLO signed the Declaration of Principles (DOP) on the interim Self-Government Arrangements with Israel in September 1993, the PLO Legal Committee began work on a Basic Law as an interim document to govern the newly formed PA. Under the leadership of Palestinian jurist Anis Al-Qasem, several drafts were completed. One criticisms of the final document was that there had not been sufficient public participation in the process. Additionally, there were a number of loopholes that made it unlikely to prevent presidential authoritarianism.

In September 1995, a Palestinian-Israeli agreement paved the way for the establishment of an elected council for the West Bank and the Gaza Strip. Among its responsibilities would be the issuance of the Basic Law. The PA Election Law, which set up the structure for electing the new council, stated that the PLC would compose a constitutional order for the transitional period founded upon “popular sovereignty, democratic principles, separation of powers, independence of the judiciary, equality among citizens, and the guarantee of the basic rights of the citizen.”

After the 1996 elections, the new PLC Legal Committee had a variety of sources to consult as it began its work on the Basic Law. In addition to the Al-Qasem draft, it also had a draft from the Al Haq human rights group, and constitutions from many countries, particularly in the Arab world. The Palestinian media covered the process and public input was sought.

In July 1996, Arafat spoke out against the draft Basic Law. He said the Basic Law should be developed by Palestinians everywhere, not just the PLC which only represented the Palestinians in the West Bank, Gaza, and East Jerusalem. Some commentators speculate that he found the content of the draft too progressive, checking his ability to continue governing in an authoritarian manner. Whatever the reasons, Arafat refused to comment on the First, Second, or Third and final Reading of the Basic Law. The Third Reading, which was completed in October 1997, sat on his desk in limbo until this May.

Highlights of the Basic Law:

The structure of government is based on the separation of power and contains a range of checks and balances to prevent domination by any branch, particularly the executive. The executive branch consists of a directly elected president, who presides over a Cabinet called the Council of Ministers, and can appoint or remove its members. The president proposes laws to the PLC—directly or through the ministers—and signs or rejects, within 30 days, laws ratified by the PLC. The president can pardon or commute sentences, open the first ordinary session of the PLC, and issues decrees in exceptional cases if the PLC is not in session. The decrees must be presented to the PLC at its next session. If the office of the Presidency becomes vacant by death, resignation, or incompetence then the speaker of the PLC becomes president for a maximum of 60 days.

The 88-member legislature is headed by a speaker, two deputies, and a secretary. Lawmakers were directly elected as individuals, rather than on party lists, in constituency districts. Lawmakers have immunity from criminal and civil procedure for things they say or do in pursuance of their duties. In addition to considering and passing legislation, they can question government ministers. They have the ability to vote no confidence in the government as a whole or in any minister. They approve the annual budget prepared by the executive and can overturn a Presidential veto of their proposed legislation with a two-third vote. They can also amend the Basic Law with a two-third vote.

The judicial branch is independent with a Supreme Judicial Council, military courts, administrative courts, and sharia, or Islamic law, and religious courts to handle family law and inheritance matters. A new High Constitutional Court will interpret legislation and have the power of judicial review like that in the United States and many countries.

The Bill of Rights chapter contains both the civil and political rights found in the U.S. constitution as well as the economic, social, and cultural rights found in most late twentieth century constitutions.

Citizenship is “defined by law,” however, no deprivation of citizenship is permitted. Everyone is equal before the law. There is no discrimination on the basis of race, sex, color, religion, political views, or disability. A person is innocence until proven guilty. Torture is not allowed and everyone has a right to a lawyer. Other rights include, personal freedom and the right to education and academic independence. Proper housing and sanctity of the home. Freedom of belief and religion “provided it does not violate public order or public morals.” Freedom of thought and conscience expression provided that “it does not contradict provisions of [the]law.” Free market economy, the right to private property and work. The right to participate in political life, freedom of the press, however, restrictions can be imposed by law.

It remains to be seen if the newly signed Basic Law will ever be implemented. If it is put into effect, the Palestinians will begin the even more difficult task of creating constitutionalism. The world is littered with constitutions that are democratic on their face, but worthless in practice. Whatever the future status of the Basic Law, it will hopefully constitute a valuable effort on the path toward the democratic constitution of the future independent state of Palestine.

Adrien K. Wing is the Bessie Dutton Murray Distinguished Professor of Law at the University of Iowa College of Law. The above text may be used without permission but with proper attribution to the Palestine Center (Palestine Center). This information brief does not necessarily reflect the views of Palestine Center or The Jerusalem Fund. Wing can be reached at adrien-wing@uiowa.edu.

This information first appeared in Information Brief No. 96, 30 July 2002.