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Can Constitutionalism help Palestine?

Dr. Feras Milhem, Professor of Constitutional Law at Birzeit University, introduced Dr. Nathan Brown, Professor of Political Science at George Washington University and author of several outstanding publications on constitutional law.
Prof. Brown thanked Dr. Milhem for the nice introduction and expressed his pleasure to present a lecture at the Institute of Law (IoL) to an audience, including prominent Palestinian figures who contributed to drafting the Palestinian Basic Law.
In his presentation, Prof. Brown addressed three major issues: what a constitution is; Palestinian experience in drafting the constitution; and when constitutional provisions are in force.
Like the US and French constitutions, a constitution may be produced in the form of a declaration with a long text. In this context, Prof. Brown stated that the American Constitution does not function as required.  Although drafted by persons with long experience in the field of Constitutional Law, the US Constitution's texts are complicated and sometimes contradictory.
Other constitutions may take the form of social contracts.  It should be noted that constitutions function more effectively once they are in the form of social contract.
With respect to experience in drafting the Palestinian Constitution, Prof. Brown explained that several attempts have been made to set forth a Palestinian constitutional framework since 1949.  Nonetheless, these attempts failed.  With the proclamation of the Palestinian State in Algiers in 1988, the Palestine Liberation Organisation established a committee to draft Palestinian Constitution.
After it was established in 1994, the Palestinian National Authority (PNA) drafted a provisional document that put forward respective functional guidelines.  At the beginning of 1996, the said document was ready.  The document determines PNA-related powers, scope of functions and central institutions which comprise it.  At that stage, however, the late President Yasser Arafat was not interested in this step.
In response to increasing international pressure, PNA set up a committee to draft the Palestinian Basic Law in 1998.  It should be mentioned that this stage marked the end of the Oslo-prescribed interim period and commencement of the final status negotiations. The committee, though, managed to draft seven versions of the Palestinian Constitution.
Under ongoing local and international pressure, the Palestinian Basic Law was promulgated in 2002.
Practically, most Arab constitutions are greatly affected by the relevant political regimes.  However, the Palestinian Basic Law has not been subject to any political influences.  Compared to other Arab constitutions, the Palestinian Basic Law is characterised as the most liberal constitutional document.
In 2003, the Palestinian Basic Law was amended.  Creating the position of a prime minister, the amended Basic Law has also minimised powers endowed upon the PNA President.
In 2005, the Basic Law was amended again. Unfortunately, most concerned parties still adopted the 2003 version and have not taken the new amendments into account.
In this context, Prof. Brown asserted that the Palestinian Constitution may have been more effective if the international community and civil society organisations had contributed to drafting it.  Hamas should take part in this process.  In addition, the Palestinian Constitution must take the form of a transaction to be concluded between the government and citizens.
Enforcement of constitutional provisions is extremely important in the context of changing balance of power.  The Constitution will also be more powerful when relevant provisions are a part of the public policy.
Prof. Brown added that constitutional provisions are neutralised.  In reference of the Palestinian Constitution, for example, provisions relating to the High Constitutional Court as well as judicial oversight over the progress of electoral processes are practically ineffective.
Many States around the world oppose such inoperative constitutional provisions.  In France, for example, leftist parties severely criticised similar defunct provisions under the French Constitution.  In the United States, a party was created to address short provisions under the US Constitution.  In the Arab World, a most prominent example on such an opposition was reported to have taken place in Egypt following the 2005 elections.
In Palestine, Hamas has opposed provisions under the Palestinian Basic Law.  Having assumed power, however, Hamas radically changed its previous position.  Hamas also claimed that it has been entitled to constitutional legitimacy and acted to alienate any strange elements from the government.
In the aftermath of the 2006 legislative elections, Fatah Movement's status has greatly deteriorated.  Most powers were endowed on the Prime Minister – a member of the Hamas Movement.
The new situation has exerted dangerous outcomes.  Most prominently, many provisions under the Basic Law were no longer in force.  Claiming constitutional legitimacy, an independent political entity was also created in the Gaza Strip.
Prof. Brown believes that a settlement of the crisis between Hamas and Fatah is the best solution as to carry out a comprehensive constitutional reform in Palestine.  A proper constitutional formula, which will encompass interests of all Palestinian factions, should also be developed. Furthermore, a particular mechanism should be produced as to avoid devising improper constitutional provisions.  To this avail, both Fatah and Hamas should be entitled to receive international support so that they can fulfil this serious task.
According to Prof. Brown, constitutions should not operate for a prolonged time, nor should they be improvised overnight.  From time to time, many States redraft their own constitutions so as to keep pace with changing circumstances and new developments.
Finally, Prof. Brown concluded that establishment of the prospective Palestinian State requires a new constitution be drafted.  Until landmarks of the new State are complete, such a constitution can be developed over three generations. Specialists in constitutional law should be recruited and trained to support this process.
In the ensuring discussion, participants made several invaluable remarks:
Dr. Camille Mansour, Dean of the Faculty of Law and Public Administration at Birzeit University, commented that provisions under the Palestinian Basic Law were not entirely out of operation following 2006.  They have only been defunct.  The Basic Law, however, is void of legal provisions that are capable of resolving constitutional conflicts and disputes.
Dr. Khaldi, former Minister of Justice and member on the Constitution Drafting Committee, questioned outcomes of international intervention in drafting the Palestinian Constitution.  Though failed, an international attempt was made in 1949 to develop a constitution for Palestine.  In the process of developing the Palestinian Constitution, Dr. Khalidi stressed that Palestinian local interests should be separate from external aid.
Dr. Adnan Amr, Legal Advisor to the Palestinian President, highlighted that political considerations in Palestine outweigh legal ones.  Hamas has not allowed implementation of the Basic Law in due form. In addition, the Basic Law does not provide for the dissolution of the Palestinian Legislative Council.  Also requiring intervention by the international community, Palestinians should make available alternative options that allow reinvigoration of the Basic Law provisions.  In this context, presidential elections scheduled for 2009 should be held in time.