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The Palestinian political system by Dr Kamal Al-Astal

 تاريخ النشر: 14/2/2011   وقت 8:04:20 مساءً   | طباعة |  ارسل لصديق

The Palestinian Political System: An analysis of the  Modified Palestine Basic Law 2003 and the Modified Elections Law 2005

(Abstract)

 

By: Kamal M. M. Al-Astal

Associate Professor

Department of Political Scince

Faculty of Economics and Administrative Sciences

Al-Azhar University of Gaza

 

The Palestinian political system has not been subjected to  comprehensive scientific analysis. According to the researcher's knowledge, this research the first attempt to shed light on the Palestinian political system as it has been showed by the Palestinian Authority Basic Law and the Palestine Elections Law. The Researcher has used a number of methodological tools and approaches such as text analysis approach, the descriptive analysis approach and political systems approach.

The scope of the research covers the interim period from 1994 to 2006. In July  1994 the Palestinian Authority was established and in March 2003 the Basic Law was modified to limit the president authority and to create another part of the Executive Authority, i.e. the Prime Minister and The Council of Ministers. In June 2005, the Elections Law was modified to combine majority system and proportional representation system. The number of the Palestine Legislative Council was increased from 88 members to 132 members.

The analysis focuses on examining the three main authorities and the electoral system and the type of the Palestinian political system. The researched has concluded that the Palestinian political system is a "mixed political system". This means  the Palestinian Political System has a mixture of characteristics of the tripartite traditional classification of the political system into Parliamentarian, Presidential and National Assembly systems.

The researcher has reviewed the main functions of the Palestinian President according the Bas Law, the duties of the Prime Ministers and the Council of Ministers, the Functions of the Palestine Legislative Council (PLC) and the functions of the Judiciary Authority.

The research includes updated tables of the number of candidates (314 candidate) to the Second Palestinian elections which was held on 25 January 2006 for the Palestine Legislative Council and the 11 lists competing for the PLC seats with total number of candidate 414 candidates.  The total number of candidates in the 16 constituencies and list is 728.  The number of PLC seats  has been increased from 88 members to 132 members.

The analysis reviews the main articles of the Palestine Basic Law and the eight chapters of the Law which includes 122 articles. The analysis examines the Law amendments that allowed the division of the Executive Authority into the presidential Institution and the Prime Minister and the Council of Ministers institution.  The increment of the Palestine Legislative Council' members  from 88 members to 132

Overview of the Palestine Basic Law

In May 2002, Palestinian Authority (PA) President Yasser Arafat finally signed the Basic Law, a type of interim constitution, originally ratified by the Palestinian Legislative Council (PLC) in 1997. This document took several years to develop, first by the Palestine Liberation Organization (PLO) Legal Committee, and later by the PLC pursuant to the Oslo Accords. The Basic Law was supposed to have been the governing document for an autonomy period that should have ended in 1999, the time for completion of final status negotiations. Even if present circumstances prevent the implementation of the Basic Law, it remains an important indication of the democratic nature of the state most Palestinians want.

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   May 2002.

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 (now 132 members) 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.

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.

 

 





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