Academic journal article The Middle East Journal

Constituting Palestine: The Effort to Write a Basic Law for the Palestinian Authority

Academic journal article The Middle East Journal

Constituting Palestine: The Effort to Write a Basic Law for the Palestinian Authority

Article excerpt

The creation of the Palestinian National Authority in 1994 occasioned an effort to write a Basic Law, a new constitutional structure to govern Palestinians in the West Bank and Gaza. While the process of drafting the Basic Law began with very modest goals-affirming Palestinian autonomy and establishing a basic legal framework-it was soon wrested away by constitutionalists with a more ambitious vision. The final draft of the Basic Law is perhaps the most carefully-crafted and liberal constitutional document in Arab history. Largely for that reason, it has yet to be promulgated, but it has set an imposing benchmark for future Palestinian constitutional development.

Throughout the world, constitutions have become one of the most important attributes of sovereignty: new states are almost as likely to issue constitutions as they are to print postage stamps and adopt flags. Most of the Arab world is no exception: constitutions have been issued by newly independent states or by revolutionary regimes eager to emphasize their break from the past. It is no coincidence that the reluctant latecomers to the constitution-writing world are those states that avoided a prolonged struggle for independence and revolutionary political change.1

Palestinians have lacked any of the attributes of statehood for all of this century. Palestine became a distinct political entity only with the creation of the British Mandate after World War 1. The end of the Mandate in 1948 occasioned a brief attempt at forming an "All Palestine Government" in Gaza; however, military defeat and Arab suspicions combined to abort the attempt. Palestinians set out again on a tortuous and as yet indeterminate road towards some form of sovereignty only in 1988 when the Palestine National Council (PNC) declared an independent Palestinian state. The Oslo Agreements, 1993 through 1995, created a new body, the Palestinian Authority, which has adopted full statehood as its goal. The declaration of independence and the Oslo Accords have established a sometimes contradictory framework for efforts to write a constitution for Palestinians. 11

Constitutions can be more than symbols, however. Constitutionalists-those who seek to establish limited and accountable government- have turned to written documents as one of their primary tools. Those pursuing a constitutionalist vision work to design Basic Laws to provide viable means of constraining state authority, both procedurally and substantively. By devising mechanisms to hold officials accountable-to the people, to the law, and sometimes even to God- constitutionalists seek to ensure that political authority is held in check.

The collapse of Communism in Eastern Europe and the heightened global influence of liberal political and economic systems have led to a revival of interest in constitutionalism and constitutional design. The Arab world often seems to stand aloof from this trend. Arab constitutions have generally failed to ensure any effective limits or mechanisms of political accountability; generally, few constitutions have had such a purpose since the middle of this century.2 Yet Arab interest in constitutionalism has still grown in recent years, sparked by increased frustration with official corruption, authoritarianism, and human rights abuses. To date, Arab constitutionalists have endured many more defeats than they have won victories, but the spread of constitutional texts, judicial review, and human rights movements has left some limited marks on Arab politics. The Oslo Accords led to an effort to write a Basic Law for the newly created Palestinian Authority. The process proved more sustained and participatory than any similar effort in Arab history, and the result was among the most liberal constitutional documents the Arab world has ever produced.

From the beginning, the effort to write a Basic Law was based on two very different motives: a desire to assert something approaching sovereignty on a symbolic level, and a wish to produce accountable, liberal, and democratic government on a practical level. …

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