Draft Constitution (third version)

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001f
The Third Draft Constitution for a Palestinian State:
Translation and Commentary

By
Nathan J. Brown

October 2003

Domestic Politics
Constitutional Issues

ﺔﻴﺤﺴﳌﺍﻭ ﺔﻴﺳﺎﻴﺴﻟﺍ ﺙﻮﺤﺒﻠﻟ ﲏﻴﻄﺴﻠﻔﻟﺍ ﺰﻛﺮﳌﺍ
Palestinian Center for POLICY and SURVEY RESEARCH

The Palestinian Center for Policy and Survey Research (PSR) is an independent
nonprofit institution and think tank of policy analysis and academic research. PSR
was founded with the goal of advancing scholarship and knowledge on immediate
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strategic analysis and foreign policy, and public opinion polls and survey research.
The center engages in several activities. It conducts academic and policy analysis
studies. It organizes socio-political surveys and public opinion polls on current
Palestinian political and social attitudes. It sponsors study groups and task forces on
issues of critical importance to the Palestinians. Finally, it organizes conferences,
public lectures, and briefings on current public policy issues.
PSR is dedicated to promoting objective and nonpartisan research and analysis and
to encouraging a better understanding of Palestinian domestic and international
environment in an atmosphere of free debate and exchange of ideas. PSR is
registered as a nonprofit institution in the Palestinian Ministry of Justice.

The views expressed here are those of the author and not necessarily the views of PSR.

Constitutional Issues

001f
The Third Draft Constitution for a Palestinian State:
Translation and Commentary

By Nathan Brown

Domestic Politics

October 2003

Palestinian Center for
POLICY and SURVEY
RESEARCH

Irsal Street
P.O. Box 76
Ramallah, Palestine
Tel: (02)2964933
Fax: (02)2964934
Email: pcpsr@pcpsr.org

The draft constitution for a Palestinian state has been developed
through an extended process that drew on Palestinian and
international expertise and shows strong signs of reacting to
earlier Palestinian (and broader Arab) experiences with
constitutional documents. It should thus be no surprise that the
draft has grown longer and more specific over time.
Constitutions throughout the world have shown increasing
length and specificity in the past decades, so the Palestinians are
participating in a broader trend. The Palestinian draft does not
include as lengthy provisions on general ideological matters as
has become the norm; the current draft does not even have a
preamble. It is not devoid of generalities, but it is probably more
remarkable for the specific language of some of its provisions.
Some will find many of the articles too detailed and confining. It
is likely that the drafters have chosen to use specific language in
order to close loopholes that have emerged in past Palestinian
(and broader Arab) experience. Palestine does not have a
constitutional tradition to guide those interpreting and applying
constitutional texts, and it seems quite likely that its
constitutional institutions, if they emerge at all, will come under
great pressure from the beginning. For this reason, it may make
sense for the draft to go into more detail than most constitutions
do: any loophole left in the text will probably be exploited.

About the Author

Nathan J. Brown is Professor of Political Science and International
Affairs at The George Washington University in Washington, DC, where
he also serves as an adjunct scholar with the independent Middle East
Institute. He is a specialist on comparative politics of the Middle East
and has focused on issues of constitutionalism, rule of law and
democracy. He has conducted research on Egyptian, Palestinian and
Gulf politics.
Professor Brown is the author of four books: Palestinian Politics after the
Oslo Accords: Resuming Arab Palestine, a study of Palestinian politics since
1994 published in 2003 by the University of California Press; Constitutions
in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable
Government, published by the State University of New York Press in 2001;
The Rule of Law in the Arab World: Courts in Egypt and the Gulf, published by
Cambridge University Press in 1997; and Peasant Politics in Modern Egypt,
published by Yale University Press in 1990.
Professor Brown received his B.A. in 1980 from the University of
Chicago and his M.A. and Ph.D. from Princeton University in 1983 and
1987. His doctoral dissertation was awarded the Malcolm Kerr Prize by
the Middle East Studies Association.

Contents
Background and General Comments
Chapter One: General Foundation of the State
Chapter Two: Public Rights, Freedoms, and Duties
Chapter Three: Public Authorities
Section One: The Legislative Branch
Section Two: The Executive Branch
Section Three: The Judicial Branch
Chapter Four: Concluding Provisions

[
1] Background and General Comments

The effort to draft a Palestinian constitution has seen sudden bursts of activity
alternate with sustained lulls. In 1988 the Palestinian National Congress (a body
designed to represent Palestinians throughout the world) declared a Palestinian state
and authorized a committee to begin work on drafting a constitution. That project
began at a glacial pace but took on some urgency with the 1994 creation under the
Oslo Accords of the Palestinian Authority, governing Palestinians in the West Bank
and Gaza. The Accords provided for an elected assembly which began operation
after 1996 elections. That body—the Palestinian Legislative Council—assumed
control over the drafting process. Its product, the “Basic Law”–an interim
constitutional document for the PA–was finished in 1997, but it was not approved by
Yasir ‘Arafat until 2002 and still has not been fully implemented.
In 1999, the PLO’s Central Committee authorized a wholly new and separate effort,
this time not for an interim constitution but instead to accompany a declaration of
statehood. Yasir `Arafat named cabinet minister Nabil Sha‘th and a group of legal
figures to begin work. In 2001, the committee produced a first draft, though it
received little public attention in the midst of the intifada.
In May 2002, reform of Palestinian institutions suddenly returned to the domestic
and international agenda. At first, constitutional issues arose only in internal debates,
but in June 2002, US President George W. Bush publicly called for a “new
constitution,” an empowered parliament, and “a new and different Palestinian
leadership.” Nabil Sha‘th quickly responded by submitting a revised version of the
2001 draft constitution to the American leadership, but this modified document was
stillborn: it did not respond to American concerns and had been modified without
the knowledge of most Palestinians, seriously undercutting its legitimacy.
A more serious effort to revise the 2001 draft began. The committee was
reconvened, and its membership was widened to include political leaders and
activists. In the second half of 2002 and the first half of 2003, multiple drafts have
been circulated among interested parties (both domestically and internationally) and
experts. Some drafts have been published and one was submitted as a report to the
Central Committee of the PLO
.
In January and February, the constitution drafting process received a large amount of
attention, emerging as central to Palestinian reform efforts. In particular, those who
argued for a less presidential style of government saw the draft constitution as a

[2] Nathan j. Brown]

possible way to attain their wishes. While the presidential nature of the draft has
definitely decreased over time, attention shifted in February and March 2003 to a set
of amendments to the Basic Law, the interim constitution for the Palestinian
Authority. A new position of prime minister was created, taking on much of the
authority formerly in the hands of the president. The process of amending the Basic
Law took much of the pressure off (and diverted attention away) the draft
constitution for statehood. Nevertheless, the drafting committee kept working. And
indeed, a draft constitution is part of the “Road Map” advanced by the United States,
the United Nations, Russia, and the European Union in 2003.
The translation: The draft presented here, dated 4 May 2003, represents a
comprehensive and all but final draft (a final draft is expected within the next few
months). I am presenting my own translation of the draft. This translation has
several features:
• I have tried to translate as literally as possible, keeping in mind that this is a
legal document. I have made no effort to make the document read smoothly
in English.
• I am not a professional translator. While I have some experience dealing
with Arabic-language legal and constitutional documents, I am quite certain
that it is possible to improve upon my translation.
• Translations of some previous drafts have been published, generally on the
internet. I have consulted with some of those translations but developed my
own.
In the translation that follows, I insert my comments in bold after many of the
articles.
General comments on the draft: The draft constitution for a Palestinian state has
been developed through an extended process that drew on Palestinian and
international expertise and shows strong signs of reacting to earlier Palestinian (and
broader Arab) experiences with constitutional documents. It should thus be no
surprise that the draft has grown longer and more specific over time. Constitutions
throughout the world have shown increasing length and specificity in the past
decades, so the Palestinians are participating in a broader trend. The Palestinian draft
does not include as lengthy provisions on general ideological matters as has become
the norm; the current draft does not even have a preamble. It is not devoid of
generalities, but it is probably more remarkable for the specific language of some of
its provisions.
Some will find many of the articles too detailed and confining. It is likely that the
drafters have chosen to use specific language in order to close loopholes that have

The Draft Constitution of the Palestinian State: Translation and Commentary [3]

emerged in past Palestinian (and broader Arab) experience. Palestine does not have a
constitutional tradition to guide those interpreting and applying constitutional texts,
and it seems quite likely that its constitutional institutions, if they emerge at all, will
come under great pressure from the beginning. For this reason, it may make sense
for the draft to go into more detail than most constitutions do: any loophole left in
the text will probably be exploited.
Viewed in light of the Palestinian and Arab experiences, the present draft seems to
have several remarkable features besides the careful drafting and the specificity of its
clauses:
• It provides for a far stronger parliamentary system than is the norm in the
Arab world. It should be noted that although the immediate call for such a
system stemmed from concerns (both domestic and international) about the
Palestinian leadership, it reflects a much deeper set of concerns as well.
Authoritative Palestinian documents have always shown a preference for a
parliamentary system. In addition, one of the greatest failures of Arab
governance—the inability to constrain the authority of the head of state in
legal and constitutional channels—is now widely acknowledged.
• While it does provide for a strong parliament and prime minister, the
constitution does leave some room for interpretation. Constitutions often
work in unintended ways, especially in the area of executive-legislative
relations. One of the reasons for such unpredictability is that the operation
of constitutional institutions is very heavily conditioned by areas that are less
amenable to constitutional engineering—in particular, the party system.
• In my comments below, I try to show why I think that the draft would work
to contain presidential power but not eliminate it, based partly on the existing
state of the Palestinian party system (in which the current president heads the
largest party, party discipline is weak, and political parties are not inclined
primarily toward the electoral arena).
• The draft is probably more liberal than any of its Arab counterparts, not only
in its general spirit (emphasizing rights and accountability) but also in many
of its specific provisions (designed to ensure through the use of specific
language that its liberal provisions are not undermined). The constitution is
remarkably strong on gender equality. Its provisions on religion have
attracted attention, but I read them as combining general obeisance to
religion while showing a much stronger secularist focus in practice.
• Much effort has gone in to ensuring that political authority is exercised
through clear legal channels. In this regard, the state of Palestine seems
consciously designed as the opposite of the Palestinian Authority, in which
legal mechanisms have been poorly developed and sometimes murky.

[4] Nathan j. Brown]

Final status issues: The draft constitution deals explicitly with three of the four
areas specified under the Oslo Accords as “final status” issues: refugees, borders, and
Jerusalem. It deals implicitly with fourth: settlements. In all areas, it stakes out the
public Palestinian negotiation position but leaves an escape hatch to prevent
rendering the matter entirely non-negotiable:
• Refugees are accorded a right of return. But the Palestinian state has two
obligations in this regard: to allow them all to return to the state of Palestine
and to pursue return or compensation through peaceful means for those
coming from Israel within the 1948 borders.
• Borders are defined in terms of the June 1967 lines. Modification is possible
through constitutional amendment and, arguably, through treaty. Either step
would probably require a referendum.
• Jerusalem is to be the capital of Palestine. But Jerusalem is not defined.
Based on the provision for borders, it would be restricted to East Jerusalem.
• Settlements are not mentioned but all the territory of the Palestinian state are
to fall under Palestinian law. Thus while there is no call to remove
settlements, it would be difficult (and indeed impossible without modifying
borders) not to bring them under Palestinian law.
In one sense, there was no need to address these issues. Most constitutions do not
address such matters, and part of the motivation for including them seems to have
been an insistence that a constitution is not merely a document for organizing a state
but also for proclaiming a society’s fundamental values and principles. Having
included language on such issues, it may be politically difficult to remove the
clauses—it would probably be seen as a retreat.
Israel will likely object to the inclusion of such issues in the draft constitution.
Indeed, some public comments have already indicated the existence of such
objections. Yet it could be argued that the historical experience of the Arab world
indicates that there is a long-term logic in including such provisions in terms of
legitimating the outcome of any negotiations.
Most Arab states achieved independence gradually after a period of ambiguous, even
contested sovereignty. In most cases (such as Iraq, Syria, and Egypt), the imperial
power worked to construct a relationship with ruling elites in the state in question
that fell outside the oversight of constitutional mechanisms. Britain negotiated its oil
concession in Iraq before allowing a constitution to go into effect that provided for a
parliamentary role in approving treaties and agreements. France attempted to foster
constitutional development in Syria and Lebanon in a way that placed the mandate
beyond the reach of any constitutional procedures. Britain unilaterally declared
Egypt independent while reserving four areas (foreigners, defense, the Suez Canal,

The Draft Constitution of the Palestinian State: Translation and Commentary [5]

and the Sudan), thus indicating that it would not deal with Egypt as a sovereign state
on such issues.
In the short term, such strategies were sometimes successful. In the long run, they
did little good and even contributed to undermining the relationship. Political elites
in all countries came to be seen as caught between loyalty to their own countries and
to the imperial power. Parliaments and political parties felt excluded from the major
national issues and whatever arrangements existed lost any nationalist or procedural
legitimacy.
In the Palestinian case, the strong language of the constitution may press Israel
beyond what it is currently willing to concede. But the Palestinian position presented
in the constitution is not beyond the international consensus on the outlines of a
settlement that has emerged over the past few years. The constitution thus
establishes a tough but not impossible bargaining position—and also one that would
have some nationalist legitimacy. And it is more likely to deliver an agreement that
will be endowed with procedural legitimacy as well–an agreement endorsed not
merely by a narrow group of leaders but by a host of emerging structures that can
speak authoritatively for Palestinians.
This view may be excessively optimistic; more likely it may be asking the Israelis to
take a longer-term perspective than is common in the region.
Adoption: As it stands, this draft constitution remains simply the work of a
committee charged by the Central Council of the PLO. It has always remained
unclear precisely how to bring it into operation, or even how to give it some form of
official endorsement as a provisional constitution. Most who have considered the
matter favor some form of constituent assembly to consider the draft, but such a
procedure would seem to be difficult to arrange at present. Article 185 of this draft
presents a formula for adoption that does not involve such a constituent assembly,
but it does not make clear if (and how) the draft might be amended before adoption.

[6] Nathan j. Brown]

Constitution of the State of Palestine
Revised third draft
4 May 2003

From Article 1 to Article 18
Article (1) Palestine is an independent, sovereign state with a republican system. Its
territory is an indivisible unit within its borders on the eve of June 4, 1967 and its
territorial waters, without prejudice to the rights guaranteed by the international
resolutions related to Palestine. All residents of this territory shall be subject to
Palestinian law exclusively.

Most constitutions do not mention borders at all, much less feel the need
to assert that only national law prevails. The implications of this clause
are clear: the state of Palestine lays claim to all of the West Bank
(including East Jerusalem) and Gaza but no other territory. Implicitly,
Israelis who reside in that territory would be subject to Palestinian law.
While the Palestinian National Council accepted a two-state solution in
1988 and the Palestinian leadership has constantly reiterated its desire to
establish a Palestinian state on the West Bank and Gaza, this is (to my
knowledge) the first authoritative document (as opposed to policy
statement) detailing the specific territorial boundaries of that state.
Any deviation from this position would seem to require a constitutional
amendment (requiring public referendum—see Article 189). If the matter
were handled in a bilateral treaty instead, Article 124 still requires that
treaties affecting the integrity of the national territory be presented for
public referendum.
The phrase “territorial waters” was added late in the drafting process,
presumably to lay claim to the waters off the coast of Gaza. Under
Oslo,
access to the port of Gaza and to exploration of resources off the coast
have been subject to negotiation with Israel.
Article (2) Palestine is part of the Arab homeland. The state of Palestine abides by
the Charter of the League of Arab States. The Palestinian people are part of the Arab
Chapter One: General Foundations of the State

The Draft Constitution of the Palestinian State: Translation and Commentary [7]

and Islamic nations. Arab unity is a goal. The Palestinian people work on behalf of
its realization.
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.
Article (4) Jerusalem is the capital of the state of Palestine and seat of its public
authorities.

A claim to Jerusalem has been a constant element in various drafts of
Palestinian constitutional documents. Jerusalem itself is not defined.
Article (5) Arabic is the official language and Islam is the official religion in Palestine.
Christianity and all other monotheistic religions are accorded sanctity and respect.
The constitution guarantees equality in rights and duties to all citizens irrespective of
their religious creed.
It is fairly common for constitutions in the Arab world to designate Islam
as the official religion—indeed, this has been a fairly consistent element
in Arab constitutional texts since the early twentieth century. The clause
is so general that the practical details must be sought in other clauses.
Perhaps the only real effect of making Islam “the official religion” would
be to render baseless any arguments for disestablishing religion. In other
words, one could not complain on constitutional grounds about the
practice of appointing a state mufti (who delivers interpretations of
Islamic law) or including religious education in the school curriculum.
Such challenges would have been unlikely to get very far even without this
clause. It should be noted that this draft does not follow the path of many
others in the Arab world that require that the head of state be a Muslim.
Just as the language on Islam is general, so is the language on religious
freedom (though again, other clauses give some greater specificity).
Interestingly, the first mention of other religions is restricted to
“monotheistic” religions; the second gives no such qualification. Since
virtually all inhabitants of the area are monotheists, the impact may not be
great.
Article (6) The Palestinian flag, motto, seals, emblems, and national anthem shall be
defined by law.
Article (7) The principles of the Islamic shari`a are a main source for legislation. The
followers of the monotheistic religions and shall have their personal status and
religious affairs organized according to their shari‘as and religious denominations

[8] Nathan j. Brown]

within the framework of [positive] law, while preserving the unity and independence
of the Palestinian people.
This article has attracted tremendous attention, but again the impact is far
more symbolic than practical.
• First, the article refers not directly to the shari‘a but to the
“principles of Islamic shari‘a.” This in itself is ambiguous, since
it is not clear what the “principles” of the Islamic shari‘a are. The
Egyptian Supreme Constitutional Court has wrestled with a
stronger clause (more on this below) and has decided that only
shari‘a-based rules “certain as to their authenticity and meaning
[qat‘ al-ithbat wa-l-dalala]” are relevant. Since so much of the
Islamic legal tradition consists of debate, analysis, and contrasting
interpretations and applications, only a very small body of such
rules can be easily identified.
• Second, the clause gives no guidance on who is to interpret the
principles of the Islamic shari‘a. Since it is “a major source for
legislation,” presumably the legislative branch itself is to draw on
shari‘a principles when writing laws. Again, with the shari‘a
presenting not a body of codified law but a quite long and varied
tradition, it would be difficult to prove that a law does not draw on
shari‘a principles in some way. In short, this clause should be
read as an injunction to the legislature to take Islamic law
seriously rather than an attempt to implement a shari‘a-based
legal system. It would be virtually impossible to challenge any law
on the basis of this provision.
• Third, the drafters of the constitution have deliberately eschewed
a stronger formulation—making the principles of the Islamic
shari‘a the rather than a source of legislation. The stronger
formulation is used in Egypt and there has been pressure for it in
other Arab states (such as Kuwait). The practical effects even of
this stronger formulation have been quite limited.
In short, the tremendous debate this clause has already engendered both
among Palestinians and outsiders masks the limited impact of the
provision.
Actually, the second part of this clause will probably have more practical
implications. It essentially provides for the operation of religiously-based
law for matters of personal status. In a sense, that makes religious
freedom mentioned in Article 5 quite real but places it at least in part on a
communal (rather than individual) basis.

The Draft Constitution of the Palestinian State: Translation and Commentary [9]

However, the clause gives few clues on the content of this religiously-
based law. The wording does imply that such law will be legislated; that
is, that the law applied in personal status matters will be written by—or at
least bound by law written by—the legislature. Indeed, the phrase
“within the framework of the law [qanun]” comes close to subordinating
religious law to secular law.
Perhaps significantly, this draft makes no provision for separate religious
courts. Some previous drafts allowed them. The constitution would not
prohibit them (indeed, such courts exist at present and would presumably
continue uninterrupted). But there would be no bar to a state of Palestine
following the path of a few Arab states (such as Egypt and Kuwait) by
abolishing separate religious courts and—without changing the religious
content of the law applied—folding their work into the regular judiciary.
Article (8) The Palestinian political system shall be a parliamentary representative
democracy. It shall be based on political pluralism and the guarantee of the rights
and freedoms of all citizens. These include the right to form political parties and
engage in political activity without discrimination on the basis of political opinions,
sex, or religion. Parties shall abide by the principles of national sovereignty,
democracy and peaceful transfer of authority in accordance with the Constitution.
The reference not only to democracy but also to pluralism is unusual in
Arabic constitutional documents and ideologically significant, as is the
reference to “parliamentary representative democracy.” The language
remains very general, though it is given some specificity in terms of the
freedom to form political parties.
Article 182 leaves matters related to banning parties to the Constitutional
Court, but gives few clues as to why parties might be banned. This article
gives some very general basis for determining the acceptable boundaries
for party goals.
Article (9) Rule of law and justice shall be the basis of governance. All authorities, agencies,
departments, institutions and individuals shall abide by the law.
This is, of course, a basic element of constitutional government. The
Palestinian National Authority (PNA), however, sometimes operated
outside of any legal framework.
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 oversight. There shall be no provision of law which grants immunity to
any administrative action or decision from judicial supervision. The state shall be

[10] Nathan j. Brown]

bound to compensate for damages connected to errors and dangers resulting from
actions and measures carried out by state officials in the pursuit of their duties.
Some Arab states have actually removed some actions from judicial
oversight. This provision obviously prevents such a measure and, by
requiring compensation, may give it some effectiveness. This has been
the case in Egypt, which has had a similar provision to this one since 1971.
Of course, it is unlikely to prevent all authoritarian practices (it certainly
has not done so in Egypt, where security authorities often find way to
sidestep the courts), only diminish them.
Article (11) The independence and immunity of the judiciary are fundamental
guarantees of rights and liberties. No public or private individual shall be immune
from submitting to the law and executing judicial rulings. The law shall punish
infringement on the dignity of the judiciary.
The final sentence may be overly vague. It is, however, most likely a
reaction to the experience of the PNA, in which attacks on judges’
persons (and not just their dignity) have occurred. The provision leaves
specification to ordinary legislation.
Article (12) Palestinian nationality shall be regulated by law, without prejudice to the
rights of anyone who legally acquired it prior to May 10, 1948 or the right of any
Palestinian who resided in Palestine prior to this date and fled, was forced to
immigrate, or prevented from returning thereto. This right passes on from fathers or
mothers to their offspring. It does not cease or lapse unless voluntarily relinquished
in the manner prescribed by law. A Palestinian cannot be deprived of his nationality.
The acquisition and relinquishment of Palestinian nationality and the rights and
duties of those with multiple citizenship shall be regulated by law.
In many critical and politically sensitive areas (such as borders and
citizenship) this draft does not merely leave the matter to regular
legislative and political processes, as other such documents might do.
Instead, it frequently specifies what legislation must do. The result is a
long and fairly detailed document. This is probably a reaction to the
experience of the PNA and the Arab world as a whole (in which any
loophole left in the text has been exploited).
In this specific instance, the issues involved are particularly difficult.
Palestinians have not had to define citizenship before. The mandate-era
government did have some legal provisions for citizenship, but political
circumstances and national identity have changed greatly since then. The
Palestinian election law of 1995 also had to make some provisions for

The Draft Constitution of the Palestinian State: Translation and Commentary [11]

eligibility to run for office, but it did not take up the issue of Palestinians
living outside the West Bank and Gaza.
The drafters clearly want to:
• Offer Palestinian citizenship to all Palestinian wherever they live;
and
• Not endanger the status of Palestinians who enjoy citizenship
elsewhere.
It is difficult to craft legal language that will meet both objectives. For
instance, will offering Palestinian citizenship to Palestinian Israelis be
seen as irredentist by Israel? Might the Jordanian government—which
has granted citizenship to many Palestinians—take a similarly unfriendly
view? And there are other problems: automatic transfer of citizenship
based on territory might grant Palestinian citizenship to Israeli settlers;
basing citizenship on 1948 legal status would confer it even on Israelis
who live within the 1948 boundaries.
The solution here is written in fairly strong terms (and accentuates the
right of return covered in Article 13) but sidesteps most of these issues by
offering “the right” of citizenship rather than imposing citizenship.
Presumably the hope is that a law could be written that would merely offer
citizenship to all those within these ambiguous categories who wish and
request it (without requiring that it be given to those who do not).
One very notable feature of this provision that differs from the practice in
most Arab states (as well as from previous drafts) is that citizenship
passes through either the mother or the father. In most Arab countries, it
is far more difficult
to pass citizenship from mother to child than from
father to child.
Article (13) Palestinians who were expelled or emigrated from 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. The right is permanent and cannot expire.
The state of Palestine shall strive to implement the legitimate right of Palestinian
refugees to return to their homes and to compensation, through negotiations,
political, and judicial channels, in accordance with United Nations General Assembly
Resolution 194 of 1948 and the principles of international law.
This article is likely to provoke more international controversy than any
other. Israel will likely object to a right of return based on Resolution 194
as well as an unlimited right of return to the state of Palestine.

[12] Nathan j. Brown]

Previous drafts handled the matter somewhat differently. The first draft,
for instance, affirmed a right of Palestinians to return to their original
homes and asserted not simply that the right was permanent but also that
it could not be delegated. In a real sense, this would have made
negotiations on the matter impossible, because the leadership could not
act on behalf of the refugees. It also offered a right that the state of
Palestine would have been powerless to implement; it seems rather
unlikely that Israel would permit refugees to return based on a Palestinian
constitutional provision.
The effort here seems somewhat different. The approach is:
• To assert an unambiguous and unlimited right of return to the
state of Palestine (i.e., the West Bank and Gaza. In other words,
the state of Palestine would have to accept all refugees who
wished to return.
• Not to offer that right to the descendants of such refugees—
although Article 12 offers them citizenship and thus may make it
difficult to prevent them from returning.
• To assert a broader right to return not simply to the state of
Palestine but also to the original home of the refugee.
• But to couple that right with instructions to the leadership to
strive for its implementation. In short, rather than preventing
negotiation, this wording requires a certain negotiating position.
Implicitly, implementation of the right should be pursued
peacefully (through negotiations, political, and legal channels)
and may involve compensation (presumably, though not
explicitly, in lieu of actual return).
• Additionally, the constitution does not provide that the right to
return to one’s original home is transferred to offspring.

Article (14) Natural resources, archaeological remains, and historical sites in the state
of Palestine are the property of the Palestinian people. The state shall preserve them.
The law shall regulate their optimal use.
Article (15) The state strives to realize a clean, balanced environment. Preservation
of the Palestinian environment shall be the duty of the state and the society.
Whoever damages it shall be subject to the penalty of law.

The Draft Constitution of the Palestinian State: Translation and Commentary [13]

Article (16) The economic system in Palestine shall be based on the principles of a
free economy, and the protection of free economic activity within the context of
legitimate competition. The state may establish public companies to be regulated by
law, without prejudice to the principles of a free economy and in accordance with the
interest of the Palestinian people.
Arab constitutions written in the 1960s and 1970s tended to proclaim a
vague socialism as a general principle; this draft instead seems inclined
toward a liberal system. But the language is so general as to contain only
a symbolic commitment. The final sentence, however, is more specific in
ways that may not be immediately apparent: the PNA allowed public
companies to operate outside of any legal framework. This draft would
seem to bar such a practice.
Article (17) The state shall strive to promote social, economic and cultural growth
and scientific development of the Palestinian people while giving consideration to
social justice and providing special protection to the group of those who suffered
during the struggle to realize the Palestinian national project and establish an
independent state of Palestine.
The “special protection” offered to those who suffered during the national
struggle is not unusual—veterans have special status in many political
systems. But there are special problems in the Palestinian case.
This clause does not specify that such “protection” must operate in
accordance with law. In the PNA, family members of those who had
given their careers or lives to the nationalist struggle were routinely given
preference, but on an ad hoc basis that made it difficult to distinguish
from cronyism. The obvious solution is to codify in law the nature,
extent, and procedure for preferential treatment. And this article, while it
does not require that the protection operate through law does not prevent
it.
But an attempt to write the protection into law would face two political
problems, one internal and one external.
Internally, the Palestinian national struggle was not principally carried out
through a regular army but through a group of organizations and
activities that were loosely coordinated at best. Defining past national
service and suffering in a manner accepted by all those who consider
themselves veterans or victims might be particularly difficult.
Externally, the effort to codify the preference in law would run into the
difficulty that most Palestinians would include violent actions—some

[14] Nathan j. Brown]

targeted against Israeli civilians and more recently suicide bombing—as
legitimate parts of the national struggle. To accord preferential status to
relatives of suicide bombers would deeply offend Palestine’s most
powerful neighbor and likely be seen as endorsement—and even
encouragement—of such actions.
The constitution sidesteps these issues for the time being; perhaps in a
less passionate moment a solution might present itself.
The same issues arise in Article 45 below, which makes a greater effort to
insure that the preferences operate in a legal manner.
Article (18) The state of Palestine shall abide by the Universal Declaration of Human
Rights and shall seek to join other international covenants and charters that safeguard
human rights.
Specifying adherence to the Universal Declaration of Human Rights in
the constitution might have the effect of making it self-enforcing.
Chapter Two: Public Rights, Freedoms, and Duties

From Article 19 to Article 62
Article (19) All Palestinians are equal before the law. They enjoy civil and political
rights and bear public duties without difference or discrimination, regardless of race,
gender, color, religion, political opinion, or disability. The term ‘Palestinian’ or
‘citizen’ wherever it appears in the constitution refers to male and female.
The last sentence is, I believe, unique in Arab constitutional texts. Indeed,
I have never seen an Arab legal text that makes such an explicit statement
on gender. Unlike English, all Arabic nouns are gendered. “Palestinian”
and “citizen” are either masculine or feminine words; generally the
masculine is used if gender is unknown or unspecified. Thus the last
sentence might not be strictly necessary, since the preceding sentence
implies that gender is not a basis for discrimination. It is still striking.
Article (20) Human rights and fundamental freedoms are binding and must be
respected. The state shall guarantee religious, civil, political, economic, social, and
cultural rights and freedoms to all citizens and their enjoyment on the principle of
equality and equal opportunity. A person may not be deprived of his rights,
fundamental, or legal competence for political reasons.

The Draft Constitution of the Palestinian State: Translation and Commentary [15]

Article (21) Every Palestinian who has reached the age of eighteen years shall have
the right to vote in accordance with the provisions stipulated by law. Anyone who
bears Palestinian nationality shall have the right to enter his candidacy for the
presidency of the republic or for membership in the Representative Council and/or
assume a ministerial or judicial position. The law shall regulate the age and other
prerequisites for these posts.
Interestingly, a similar provision in the Egyptian constitution has been
interpreted by the Supreme Constitutional Court to require that
independents be allowed to stand for office. Pure party-list systems have
been held to inhibit the rights of those who are not members of political
parties. The result has opened up the parliament but also weakened the
party system.
The failure of Palestinian political parties to organize themselves
effectively in the electoral arena may be one of the chief problems
confronted by any constitutional system. It is possible that guaranteeing
an individual right to candidacy might have an unintended side effect of
undermining parties.
However, it is quite possible—even likely—that the Palestinian
constitution would be interpreted differently than the Egyptian. Article 121
of this draft refers to parliamentary blocs within the parliament.
Article (22) Women shall have their own legal personality and independent financial
assets. They shall have the same rights, basic freedoms as men as well as the same
duties.

Article (23) Women shall have the right to contribute effectively in social, political,
cultural and economic life. The law shall strive to abolish restraints that prevent
women from participation in the building of family and society. The constitutional
and shari‘a rights of women shall be safeguarded; their violation shall be punishable
by law. The law shall also protect their rights to shari‘a inheritance.
The strong gender equality provisions alongside mention of “shari‘a”
rights here may be taken by many outsiders to be contradictory.
In fact, most of the references to shari‘a in the constitution are sufficiently
general—and the shari‘a itself sufficiently indeterminate—that the more
specific language on gender equality is likely to dominate, leading
perhaps to interpretations of the shari‘a more friendly to gender equality.
The primary exception to this lies in the area of personal status: marriage,
divorce, and (here) inheritance. Virtually all dominant interpretations of

[16] Nathan j. Brown]

the shari‘a are predicated not on gender equality but on reciprocal (but
often quite different) obligations. Thus, attention should shift from
matters of general principle to specific legislation: how will the shari‘a be
rendered into codified form?
In the specific matter of inheritance, shari‘a provisions are fairly clear,
giving women a definite but unequal share. Prevailing social practice
often honors this only in the breach however: women frequently complain
that men exercise control of their inheritance, never allowing them even
the lesser share accorded to them by the shari‘a. Thus this article seems
designed to ensure that however the law is codified, it is actually enforced
in matters of inheritance.
Article (24) Children shall have all the rights guaranteed by the United Nations
Convention on the Rights of the Child.
The text of the Convention can be viewed at:
https://www.unicef.org/crc/fulltext.htm.
Article (25) The right to life is safeguarded and to be protected by law.
Article (26) Every individual has the right to personal safety. It is forbidden to
torture a human being, harm him, treat him in an inhumane manner, or subject him
to harsh, humiliating, or undignified punishment. Such deeds or contributing to
them shall be a crime punishable by law without statute of limitation. Any confession
proven to have been obtained under torture or serious threat of it shall not be
considered proof of guilt. Anyone carrying out torture, ordering it to be carried out,
or participating in it shall be subject to punishment of law.
While the first two sentences seem the strongest, it may be the last two
that give the prohibition of torture teeth. This is because torture in many
Arab states is often anonymous: victims are unable to identify their
torturer. This can rob the legal prohibition of any meaning. But
prohibition of admitting confessions gained by torture has had some
effect: a similar provision in the Egyptian constitution has led some courts
to acquit those accused of crimes. In addition, making those who order
torture criminally liable may strengthen the prohibition, though proving
such orders would most likely be quite difficult.
Article (27) Scientific or medical experimentation on a person without his prior legal
consent is forbidden. It is not permitted to subject someone to medical examination,
treatment, or surgery, except in accordance with the law. The law shall govern the

The Draft Constitution of the Palestinian State: Translation and Commentary [17]

transplant of organs, cells and other, new scientific developments, consistent with
legitimate, humanitarian purposes.
Article (28) Every person has the right to freedom and personal safety; it may not be
violated, except in cases and according to procedures stipulated by law. It is not
permitted to arrest a person or search, imprison, or limit his freedom in any way
except by order of a competent judge or the Attorney General in accordance with the
law; the measure must be necessary to safeguard the security of the society. He must
be informed quickly in a language he understands of the charge against him. From
the moment of the measure against him, he has the right to seek assistance from an
attorney and he must be brought before the competent judicial authority immediately.
The law shall define the conditions and time period for provisional detention. Any
person arrested, detained, or imprisoned without legal basis shall be entitled to
compensation.
The provision for provisional detention seems to be potentially quite wide;
much depends on how the relevant law is written. The other important
innovation in Palestinian practice is to require that detention operate
through defined legal mechanisms.
Article (29) The accused is innocent until proven guilty in a fair trial in which he is
granted the guarantees of self-defense either personally or by means of an attorney he
chooses in a public trial. The court shall appoint an attorney to defend him without
charge if he is unable to afford one.
Article (30) Detainees and those deprived of liberty shall be treated humanely,
preserving their dignity. Care shall be taken in implementing sentences to observe the
pronouncements of the United Nations related to the minimal principles for treating
prisoners or those being judged. Care shall be taken in the sentencing of minors and
in implementing them to do what is appropriate to reform, rehabilitate, and train
them.

Article (31) Citizens shall have the right to choose their place of residence and to
travel within the state of Palestine. No person may be denied the right to travel from
Palestine except by a judicial order issued in accordance with the law. Likewise a
Palestinian may not be deported or prevented from returning to his country. No
Palestinian may be extradited to a foreign state.
The Oslo Accords provide—in an extremely elliptically worded formula—
for the extradition by the PNA to Israel. The Accords do provide an
escape hatch—the PNA need not extradite those it has already detained.

[18] Nathan j. Brown]

With one exception, the PNA has responded to extradition requests by
detaining the individual in question—sometimes with a flimsy legal
basis—or (since the beginning of the intifada) ignoring the request.
These detentions have been enormously unpopular, but extradition would
have been virtually unthinkable (the sole exception occurred in the case of
someone accused of raping an Israeli Arab boy). The provision barring
extradition is thus not surprising, given this political context.
However, the provision may solve the domestic political problem at the
risk of accentuating the international one—it might place a state of
Palestine in an extremely difficult political position if a Palestinian were
implicated in a violent attack on Israel. Interestingly, the protection
against extradition is for a “Palestinian” not merely for a “citizen,” the
term used elsewhere in this article—implying perhaps that it would
extend to Palestinians who had not taken Palestinian citizenship.
Some Palestinians have felt frustrated by the weak legal framework in the
PA, complaining that it gives them little basis to resist international
pressure. A strongly worded constitution or a robust parliament might
allow Palestinian leaders to cite the requirements of their democratic or
legal system in the face of foreign pressure—a common (and not
necessarily insincere) tactic of democratic political leaders. There seems
to have been an effort in some clauses like this one to strengthen the
backbone of the Palestinian leadership, enabling it to cite constitutional
provisions and general human rights guarantees in such cases.
Article (32) A political refugee who legally enjoys the right of asylum may not be
extradited. The law shall regulate the extradition of those ordinary foreigners accused,
in accordance with bilateral agreements or international conventions.
Article (33) Litigation is a right guaranteed to all by the state. Each individual shall
have the right to resort to his natural judge to defend his rights and freedoms, and to
receive compensation for a violation thereof. The law shall regulate the procedures
for litigation in a manner that ensures a speedy decision of cases without harming the
rights of litigants. In the event of a judicial error, the state shall be obligated to
compensate the damaged party. The law shall govern the conditions and procedures
for compensation.
The phrase “natural judge” is rarely used in English, though it is more
common in continental jurisprudence. Perhaps the fullest set of meanings
is listed in Article 8 of the Greek constitution: “No person shall be
deprived of the judge assigned to him by law against his will.” Further,

The Draft Constitution of the Palestinian State: Translation and Commentary [19]

“Judicial committees or extraordinary courts, under any name whatsoever,
shall not be constituted.”
The 1971 Egyptian constitution introduced the phrase to the Arab world.
A full Arabic-language treatment of the subject can be found at:
https://www.undp-pogar.org/activities/justice/obeid.pdf.
The “natural judge” principle has several specific applications in the Arab
context: that judges and court proceedings must observe certain
procedural safeguards; that cases must be assigned in accordance with
clear legal principles (in order to avoid assignment for political reasons or
because of favoritism); that exceptional courts are forbidden; and that
civilians may not be tried in military courts.
The second meaning—involving the assigning of cases–is perhaps the
most common in Europe. The last meaning—barring trials of civilians in
military courts—has taken on particular significance in Egypt, though the
Supreme Constitutional Court has long delayed ruling on a case in which
such a challenge has been made
Article (34) There shall be no crime or punishment except by law. No sentence shall
be implemented except by judicial order. Punishment shall be personal and an
individual may not be punished more than once for the same offence. Collective
punishment is prohibited. Care shall be taken to observe the principle of
appropriateness between crime and punishment. There can be no punishment except
for acts committed after a law has come into effect. The law shall regulate, in non-
criminal cases, the retroactive effectiveness of laws.
These are basic liberal principles related to the rule of law. The
prohibition of collective punishment, while standard in this respect, takes
on added force in a Palestinian context because of the frequent complaint
that the Israeli occupation uses collective responsibility as a matter of
policy.
Article (35) The private life of every person has legal sanctity, including family
particularities, residence, confidentiality of correspondence and other means of
private communication. It may not be infringed upon except by judicial order and
within the limits of the law. Any consequence of the violation of this article is invalid.
Whoever is harmed as a result has the right to request compensation.
Article (36) Freedom of creed is guaranteed and every person has the right to
practice the rites of worship in accordance with the provisions of the constitution
and the law. The state shall guarantee access to holy places that are subject to its

[20] Nathan j. Brown]

sovereignty within the framework of law. The state shall guarantee to followers of all
monotheistic religions the sanctity of their places of religious worship in accordance
with the historic commitment of the Palestinian people and the international
commitments of the state of Palestine.
The implications of the precise phrasing here is unclear, but it seems to
allow for some legal regulation of access to religious places, perhaps to
anticipate (and fend off) any claim of extraterritorial status (in effect if not
in name) by non-Palestinians seeking access to holy places under
Palestinian control. The final phrase seems designed to allow for
provisions regarding access to religious sites in any comprehensive peace
settlement with Israel.
Article (37) Freedom of opinion and its expression in speech, writing, and other
means shall be guaranteed within the limits of the law and insofar as to guarantee
respect for the rights and freedoms of others.
Article (38) The founding of newspapers and the ownership of all media is a right
for all citizens guaranteed by the constitution. The sources of their funding shall be
subject to legal oversight.
At first glance, this wording seems opaque and weak. It may not be,
however: print and broadcast media are frequently state controlled in
many Arab states (the latter more often than the former), though this is
beginning to change. The intention here may be to protect privately-
owned media.
Article (39) Freedom of the media, including press, printing, audio, and visual media,
and the freedom of those working in the media, is guaranteed and protected by the
constitution and the relevant laws. The media shall freely exercise their mission and
express different opinions within the framework of society’s basic values, preserving
the rights, freedoms and public duties in a way that does not conflict with the rule of
law. The media may not be subject to administrative censorship, nor to suspension or
confiscation, except by court order in application of the law.
There seems to be an effort here to balance between liberty and social
values (such as those barring pornography). It is not clear how this would
work in practice and probably would ultimately depend on the relevant
law rather than simply on the constitution.
The specific wording in the final sentence may owe something to the
experience of the PNA, where security forces have sometimes closed
down media without any clear legal justification.

The Draft Constitution of the Palestinian State: Translation and Commentary [21]

Article (40) Journalists and citizens shall have the right to obtain news and
information with transparency and responsibility in accordance with the conditions
stipulated by law.
This article effectively transfers the most difficult issues to legislation. It
might be noted that the opening phrase (“journalists and citizens”)
implies that the right extends to foreign journalists.
Article (41) Every citizen has the right to defend his rights to intellectual property
deriving from any scientific, artistic, or literary work he has produced in a manner
that does not contradict the basic values of the society and the rule of law.
Article (42) Education is a right for the individual and the society. It is compulsory
for every citizen until the end of the elementary level. The state shall guarantee it in
public schools, institutions, and establishments until the end of the secondary level.
The law shall regulate the manner of the state’s supervision of the performance of
education and curricula.
Article (43) Private education shall be free and independent, and the law shall
regulate the oversight of the state over its organization and curricula.

Article (44) The state shall honor the independence of the universities, institutions,
and research centers that have a scientific purpose. The law shall regulate oversight
over them in such a manner so as to safeguard the freedom of scientific research and
innovation in all fields. The state shall, within the bounds of its capabilities, work to
encourage, assist and protect them.
In general, while most constitutions written in the past half century make
provisions (sometimes quite extensive) for social and economic rights,
these are generally treated as aspirational and unenforceable except
through the regular policy process. Given the fiscal constraints in a
Palestinian state, it would be impossible to take any other position.
This implicit attitude is made explicit by the phrase “within the bounds of
its capabilities” which occurs here and elsewhere.
In a few cases, however, courts have taken such aspirational provisions a
little more seriously, demanding that authorities provide evidence that
they have taken their obligation to attempt to provide for such rights quite
sincerely. The phrasing here might possibly encourage such a judicial
attitude, though it would hardly require it.

[22] Nathan j. Brown]

Article (45) The law shall regulate the services of social security, disability and old
age pensions, care for families of martyrs, prisoners, orphans, and care for those
injured in the national struggle, and those requiring special care. The state shall
guarantee them, within the bounds of its capabilities, the services of education, health
and social security and shall give them priority in employment opportunities in
accordance with the limitations laid down by law.
Article (46) The state shall organize health insurance as an individual right and a
public interest. It shall guarantee, within the boundaries of its capabilities, basic health
care for those financially unable.
Article (47) The state shall strive to guarantee appropriate housing for every citizen
by way of a housing policy that relies on the cooperation of the state, the private
sector, and the banking system. In circumstances of war or natural disaster, the state
shall work within the bounds of its capabilities to provide shelter to the homeless.

Article (48) The state shall guarantee care for families, motherhood, and childhood.
It shall care for adolescents and the youth. The law shall regulate the rights of the
child, mother and family in accordance with the provisions of international
agreements and the “Charter of the Rights of the Arab Child.” In particular, the state
shall seek to provide protection for children from harm, harsh treatment,
exploitation, and from any work that would endanger their safety, health and
education.
A translation of the Charter may be viewed at:
https://www.geocities.com/joelmermet/arabcharter.html
Article (49) Public property shall be honored and its protection is a duty of each
citizen. It shall serve the public interest in accordance with the law. The law shall
regulate the authority for religious endowments and management of its properties
and funds.
This would have the effect of placing religious endowments [waqfs] under
state supervision. This is the case in most Arab countries. In the West
Bank, however, the administration of these endowments still shows some
vestiges of Jordanian control; this provision would place them firmly
under Palestinian control.
Article (50) Private property is protected. It may not be confiscated or seized except
for the public benefit in accordance with the provisions of the law. In all cases, it is
necessary that there be just compensation. The general confiscation of private
property is prohibited. The law shall regulate real estate ownership by foreigners.

The Draft Constitution of the Palestinian State: Translation and Commentary [23]

Sale of real estate to non-Palestinians (and especially land purchases by
the Zionist movement) is an especially sensitive subject in Palestinian
history and the issue has not gone away under the PNA. This clause
asserts a Palestinian right to regulate such land sales, though it assigns
the matter to regular legislation.
Article (51) Work is a right of every citizen, and the state shall strive, with support
from the private sector, to provide work opportunities to those able to undertake it
through its development plan. The law shall regulate work relations so as to
guarantee justice for all parties and provide for the protection and security of
workers. The law shall regulate mandatory work in exceptional circumstances and
during natural disasters. Workers may form unions and professional associations in
the context of work. The right to protest and strike shall be exercised with the
framework of law.
This language gives stronger rights for unions and strikes than earlier
drafts. The right to form unions seems unqualified (there is no mention
that it must occur within the context of the law—there is likely to be a
legal framework for union activity but this language would seem to make
it difficult to restrict union activity in the guise of regulating it). The right
to strike, however, occurs only within the framework of the law, making
possible restrictions (and this clause gives no limitation on the state’s
legal authority to regulate strikes).
The current PNA Labor Law can be viewed in English at:
https://www.pnic.gov.ps/english/law/law10.html.
Article (52) Citizens have the right to assume public office, which is a charge for
those who undertake it to serve the society. It shall be assumed on the principles of
equality, merit, and equal opportunity in accordance with the provisions of law.
Article (53) Every citizen has the right to express an opinion in referenda, elections,
and in nominating himself or others meeting requirements for nominations, in
accordance with the stipulations of the constitution and the provisions of law.

Article (54) Every citizen has the right to contribute to political activities,
individually, or collective. Specifically, he has the following rights and freedoms:
• Participation in forming political parties, or joining them, or withdrawing
from them in accordance with law.

[24] Nathan j. Brown]

• Participating in forming syndicates, associations, unions, leagues, assemblies,
clubs, or institutions, or joining them, or withdrawing from them in
accordance with law.
The law shall regulate the procedures for them to acquire legal personality.
Article (55) Every individual has the right to hold private meetings in a matter not
conflicting with law, and to do so without the presence of the police. Every individual
shall have the right to assemble and hold public meetings, and to demonstrate in a
peaceful manner without bearing arms. It is not permitted to place restrictions on
their exercise except that which is imposed by law and forms necessary measures in a
democratic society safeguarding the rights and freedoms stipulated in the
constitution. The use of violence during demonstrations is forbidden and its use, or
the incitement of its use, shall be held to account under the law.
This article contains fairly strong guarantees, though much depends on
the content of the law. The PNA does have a very liberal law of public
assemblies, which can be viewed at
https://www.pnic.gov.ps/english/law/law4.html. Under the provisions of the
constitution, this law would continue in effect until amended.
Two specific features of this article deserve mention. First, barring police
from private meetings (though not from public ones) would presumably
prevent surveillance for the purposes of intelligence. Second, the article
provides no protection to armed demonstrators. Political marches—and
even wedding parties—in which members bear arms (and sometimes
shoot in the air) are quite common in Palestinian society.
Article (56) Every citizen has the right to address public authorities and to present
and sign written petitions and complaints.
Article (57) It is not permitted to suspend any basic rights or freedoms. The law
shall define those rights and freedoms that may be limited temporarily in exceptional
circumstances in matters related to public security and the purposes of defense of
national security. The law shall penalize the arbitrary use of power and authority.
The precise meaning of this article is obscure because it seems to attempt
to make rights absolute but also allow their restriction.
One interpretation is that it presupposes a distinction between “basic”
rights and freedoms (which may not be suspended at all) and those that
may be limited in the case of clear national need. While the constitution
gives no guidance on which rights fall in the basic category, it does

The Draft Constitution of the Palestinian State: Translation and Commentary [25]

indicate how such a distinction should be made: through ordinary
legislation. This is a potentially wide loophole, but it need not be quite so
wide if the legislation is carefully written.
An alternative interpretation is that the clause distinguishes between
“suspending” and “limiting” rights, forbidding the first but allowing the
second, again in accordance with law and only for dire national need.
Article (58) Any violation of the basic general rights and freedoms guaranteed by the
constitution or law is a crime, and any criminal or civil case arising shall have no
statute of limitation. The state shall guarantee just compensation for those who have
been harmed.
Article (59) An independent public body for rights of the citizens shall be
established by law, concerned with monitoring the conditions and rights of citizens
and their freedoms. The law shall regulate its formation, responsibilities, and
competencies. It shall present its report to the Representative Council, the president
of the state, and the prime minister.
Such a body has already been established by presidential decree, very
shortly after the founding of the PNA. The PNA’s Basic Law later gave
the body a constitutional basis. The only significant change is to have the
body submit reports to the prime minister (a position that did not exist
when the Basic Law was originally written, though it has been added
since). While established as a Palestinian body under Palestinian law, the
body in question, the Palestinian Independent Commission for Citizens’
Rights (www.piccr.org), has received significant funding from external
donors; its relations with the PNA have sometimes been tense.
Article (60) The state is responsible for the security of persons and property. It shall
work to protect the rights of every citizen internally and abroad.
Article (61) Defending the nation is sacred duty and serving it is an honor for every
citizen. It shall be regulated by law. It is not permitted for individuals and groups to
acquire, trade, bear, or possess arms in a manner that is in violation of the provisions
of the governing law.
The PNA has issued the relevant law governing firearms; it would
continue in effect (a translation is available at
https://www.pnic.gov.ps/english/law/law19.html). The law caused some
controversy when it was passed, with Israel complaining that it was too
permissive and violated the terms of the Oslo Accords.

[26] Nathan j. Brown]

Article (62) The payment of taxes and public fees is a duty regulated by law.

Chapter Three: Public Authorities
From Article 63 to 64
Article (63) National sovereignty belongs to the people, who are the source of the
authorities. They exercise their competencies directly, through referenda and general
elections, and through their elected representatives by way of the three public
authorities—legislative, executive, and judicial—and by way of their constitutional
institutions. No individual or group may claim for itself the right to exercise any of
these competencies.
In English, reference is usually made to the three “branches” of
government; in Arabic the term used is “authorities (sultat).” This
sometimes makes the translation confusing, since the Arabic word
sometimes refers to authority in general; at other times it refers to a
branch of government. In favoring a literal translation, I have used the
term “authority” every time “sulta” is used in Arabic, even when it refers
to one of the three branches of government as in this article.
Article (64) The relationship among the three public authorities shall be based on
independence in performing competencies on the basis of the principle of separation,
cooperation, and balancing among them. No authority may exercise competencies
assigned to another authority according to the provisions of the constitution.
In general, Arabic constitutional doctrine (like continental European)
tends to stress “separation of powers” while American stresses “checks
and balances.” American constitutional systems tend to provide for a
greater degree of overlap and mutual oversight, while Arab (and
European) systems tend to promise greater separation. The current
Palestinian draft leans toward the Arab/European pattern, but the
mention of “balancing” is unusual. Earlier drafts referred to a “relative”
separation of powers.

Chapter 3/Section One:
Legislative Branch / Representative Council

The Draft Constitution of the Palestinian State: Translation and Commentary [27]

From Article 65 to Article 108
Article (65) The Representative Council shall exercise the legislative authority. It
shall establish the general policies of the state and the general budget, which shall be
prepared by the Council of Ministers. It shall exercise oversight over the actions of
the executive branch in the manner specified by the Constitution.
The term “Council of Ministers” is a literal translation of the Arabic term
for “cabinet.” As is often done in parliamentary system, this constitution
also uses the term “government” as synonymous with “Council of
Ministers.”
Article (66) The Representative Council shall be composed of 150 deputies,
representing the Palestinian people. They shall be elected according to the provisions
of the constitution and election law. Nomination for membership in the Chamber of
Deputies shall be in accordance with the provisions stated in this constitution and in
the election law. Whoever runs for the Representative Council must be Palestinian
and it is not permitted after his election to hold the citizenship of another state.
There is a Palestinian election law in force under the PNA. It provides for
deputies to be elected as individuals in multi-member districts. Unlike
most legislation (which would continue in effect after the adoption of the
constitution), the election law could not operate unamended since it
provides for Legislative Council of 88 members.
A thoroughly revised election law has been drawn up by a Palestinian
NGO (Muwatin) and proposed in the Legislative Council (PLC) by `Azmi
Shu`aybi, a leading reformer. That law provides for a party list system;
such a mechanism might strengthen the party system and make the
constitution operate in a manner very different from the system prevailing
in the PNA.
A draft of that law—currently under consideration at the PLC—may be
viewed at: https://www.usaid.gov/wbg/misc/Elections_Draft_Law_-
_English_Translation.pdf
The wording on citizenship would seem to allow candidates who are
citizens of other states provided they renounce that citizenship once
elected.
Article (67) Members of the Representative Council are elected for a period of five
years. A member maybe be re-elected more than once. It is not permitted to extend
the term of the Representative Council except in case of necessity, and by virtue of a

[28] Nathan j. Brown]

law passed by the Representative Council by a two-thirds majority of its total
membership.
The provision to extend the term in case of an emergency is likely a
response to the current position of the PLC. Elected for the interim
period (which was supposed to have been concluded in 1999), the PLC
had no clear method of either extending its mandate or calling for new
elections. It has therefore continued with a series of presidential decrees
extending its life. The provision would make the Council of Deputies
itself the body that determined the necessity of extension.
Article (68) The seat of the Representative Council shall be in Jerusalem, the capital
of the state of Palestine. Its sessions may be held in different locations based on the
request of the speaker or a majority of its members.
Here as elsewhere, reference to the “majority of the members” would
seem to require an absolute majority, not merely a simple majority of
those present. The matter of its meeting place will naturally be quite
controversial internationally, though it should be noted that Jerusalem,
while mentioned in the Constitution, is not defined. Article 1, establishing
the borders of the state, would seem to include only East Jerusalem. This
still leaves unclear the status of villages near Jerusalem that fall outside
the Jordanian and Israeli municipal boundaries (such as Abu Dis), as well
as the status of those areas of East Jerusalem not part of the municipality
in Jordanian times but annexed by Israel in the years after 1967 (such as
Shu`afat).
Article (69) Before the Representative Council begins undertaking its constitutional
duties, and in the first session it holds, the members swear the following oath: “I
swear by Almighty God to be faithful to the homeland, to preserve the rights of the
people and the nation and its interests, to honor the constitution and the law, and to
undertake my duties rightfully, as God is my witness.”
Article (70) The Representative Council shall elect in its first meeting of every annual
session a speaker, two deputies for the speaker, and a secretary-general, composing
the Presidium of the Representative Council. It is not permitted for a member of the
Presidium of the Council to assume a ministry or any other government position. A
member of the Representative Council may assume a ministry provided that the total
of deputies serving as ministers in the government is no more than half of the total
number of ministers.
The requirement that no more than half of the ministers be drawn from
the Representative Council—repeated in Article 141—may seem odd, and

The Draft Constitution of the Palestinian State: Translation and Commentary [29]

many parliaments would consider it an unacceptable limitation. In some
parliamentary systems, drawing ministers from outside the parliament is
forbidden; in many others, it is kept to a minimum.
In the Palestinian case, however (and in the Arab world more broadly), the
practice of appointing parliamentarians as ministers is often seen as
weakening the autonomy of the parliament, especially given the weak
party system in all Arab countries (which makes obtaining parliamentary
majorities a matter of attracting support from individuals rather than
assembling party coalitions).
Specifically, appointing parliamentarians to cabinet positions makes it
easier for the government to obtain a parliamentary majority (since all
ministers are expected to vote in favor of the government position). And
many parliamentary supporters fear deputies will be enticed by hinted
rewards of ministerial position. Both these problems seem to have
occurred in the PLC, especially in its first two years.
Article (71) The president of the state shall open the regular round of the
Representative Council. The beginning of the first regular session of the
Representative Council shall not be valid except with the presence of its speaker or
whoever legally acts as his deputy and a majority of at least two-thirds of the
members of the Representative Council. The meeting shall continue to be legal for
the rest of the regular round with the presence of the speaker of the Council or
whoever legally acts as his deputy and an absolute majority of the members of the
Council.
Article (72) The Representative Council meets at the invitation of its speaker every
year in regular session in two periods, each of them four months. The first begins in
the first week of the month of March, and the second in the first week of September.
The president of the state may, with the agreement of the prime minister or by a
request of at least one-third of all the members of the Representative Council, call the
Representative Council to an extraordinary meeting in case of necessity when then
Representative Council is not in its regularly scheduled sessions.
The president’s authority here is exercised largely in a symbolic way: he
may act only if called upon by the prime minister or a large bloc of
deputies.
Article (73) The Representative Council shall refer challenges to the validity of the
membership of any of its member to the Constitutional Court for decision according
to the governing law. Each member who does not fulfill the legal conditions for
eligibility for election or who loses them faces revocation of his parliamentary

[30] Nathan j. Brown]

membership. This is enforced by decision of the Representative Council with the
approval of two-thirds of all of its members.
There is some potential ambiguity here in the two sentences. The first
requires that challenges be referred to the Constitutional Court. The
second leaves them to the Representative Council itself. It is therefore
unclear whether the Constitutional Court’s decision is self-enforcing or if
it must refer the matter to parliament if it finds an election invalid.
In most systems, certification of election results is not a parliamentary
duty, but parliaments are considered the ultimate arbiters of their own
membership (in accordance with the principle of the separation of
powers). Thus, a deputy whose election is called into question after
certification of the results can only be unseated by an act of the
parliament. It may be that this is what the drafters of the Palestinian
constitution have in mind.
The matter is not trivial. In Egypt, the Court of Cassation (the highest
appellate court for most cases) rules in election disputes but must refer its
rulings to the parliament for implementation. The parliament has
regularly ignored such rulings, especially in cases in which membership of
a member of the ruling party is found invalid. Large numbers of deputies
have had their elections invalidated by the court without losing
membership in the parliament.
The only way of avoiding such a problem is to take enforcement out of the
hands of the parliament, but this would be seen in many countries as a
violation of separation of powers.
Article (74) If the seat of one or more members of the Representative Council
becomes vacant due to death, resignation, or loss of qualifications or abilities at least
six months before the end of his term in the Council, an election for a successor will
be held in the concerned district within thirty days of the seat becoming vacant. The
circumstances of loss of qualifications or abilities shall be defined by law.
An odd byproduct of this clause would be to make it clear that election to
the Council must be on a district basis (and not nation-wide proportional
representation, as in Israel).
Article (75) Sessions of the Representative Council shall be public. The speaker
may, by decision of a majority of the members present, decide that the session shall
be secret.

The Draft Constitution of the Palestinian State: Translation and Commentary [31]

Article (76) The Representative Council shall establish by law its Standing Orders, in
order to organize the procedures for carrying out its legislative and oversight tasks
and the procedures for accountability of its members within the bounds of its
jurisdiction in a manner that does not conflict with the provisions of the
Constitution.
The significant innovation in this article is the phrase “by law.” Under
the PNA, the PLC did write its internal regulations—generally referred to
in English as the “Standing Orders”–and attempted to refer them to the
president to get them approved as law. But the president and cabinet
treated them as an internal matter governing the PLC. That prevented the
PLC from holding other political actors (especially the president)
accountable to their provisions. Under this article, the standing orders
would be treated as law.
The reference to “accountability” of the members of the Council is
obscure. It may refer to internal discipline, but the word used (musa’ala)
could refer to questioning them.
Article (77) The president of the state, the prime minister, the speaker of the
Representative Council, or five of its members, shall have the right to propose draft
laws. Any proposal that fails to obtain the approval of the required majority may not
be presented for discussion in the same session, except by decision that is approved
by a two-thirds majority.
The president’s ability to propose laws seems to be one of his few
remaining non-symbolic prerogatives that he may exercise on his own.
Article (78) Decisions of the Representative Council, including approval of draft
laws and the proposed budget, shall be taken by a majority vote of the attendance
except in cases where a special majority is a required for approval.
Article (79) The government shall have the authority to conclude international
agreements and treaties that the stat contracts or adheres to. Agreements that impose
on the state treasury expenses not included in the budget or place on the citizenry or
the state obligations contrary to the law in effect require the agreement of a majority
of all members of the Representative Council. The Representative Council shall
discuss treaties that affect the independence of the state or the integrity of its
territory, in preparation for the government’s presentation for a popular public
referendum.
This would seem to give the executive a fairly broad authority to conclude
international agreements. There is no role for presidential involvement

[32] Nathan j. Brown]

mentioned in this article, though Article 123 does require notifying the
president of the progress of negotiations and obtaining his approval
(though this latter function is probably intended to be largely ceremonial).
Article (80) Laws that are ratified by the Representative Council and approved by the
President of the State shall become effective after thirty days from the date of their
publication in the Official Gazette, unless the law specifies another time.
Article (81) Laws shall be published in the official gazette within thirty days:
• from the date the law is referred after its approval from the Representative
Council to the president for its endorsement.
• or from the date the law is referred to the president from the Representative
Council after it is passed again by a majority of two thirds of all its members
in case of objection from the president to it.
In a case in which the period has lapsed without publication or return of the law, the
law is considered effective and it must be published and should be considered issued
with the force of the constitution, and the Constitutional Court shall be entrusted
with requesting the Representative Council to issue a resolution to publish the law in
the Official Gazette.
The level of detail in this article is quite rare for a constitutional document
and might surprise outside observers, as might the provision in the final
sentence for instances in which a law is not published or the president
fails to act. The explanation for these provisions lies in the experience of
the PNA. The PNA’s interim constitution—the Basic Law—sat
unapproved (but also unrejected) for five years on the president’s desk.
Under the provisions of this constitution, it would have gone into effect
after thirty days of presidential inaction. Interestingly, a similar provision
was suggested in the Basic Law, but the drafters rejected it at the time as
too restrictive for the president.
Under the PNA, the president has even held up the publication of laws
that he has signed, sometimes under pressure from powerful groups
seeking to delay implementation.
Article (82) The Representative Council may form special ad hoc committees, or
commission one of its standing committees to investigate the facts in any public
matter related to activity of any state institution falling under its oversight. The
committee may collect evidence from whomsoever it feels necessary to hear
testimony from, examine documents, and obtain statements from all related bodies.

The Draft Constitution of the Palestinian State: Translation and Commentary [33]

The committee must submit its report to the Representative Council to take the
appropriate decision.
Article (83) The Representative Council alone shall have the right to maintain order
and security inside its building or facilities during its sessions or the meetings of its
committees. It shall have its special guard under the command of its speaker.
Security personnel or any other armed force may not enter or be present in the
Representative Council or its facilities except in accordance with a request from the
speaker of the Representative Council.
The possibility of forming a parliamentary guard is a basic prerogative of
parliaments but one that is rarely exercised in the Arab world. The idea
was raised of creating a special force for the PLC, but it was never
implemented.
Article (84) Every member of the Representative Council has the right to direct
questions or request clarifications from the prime minister, one of his deputies, one
of the ministers, or whoever falls under their authority for them on any subject
entering within their competencies. He has the right to resort to obtain the response
according to the procedures specified by the Standing Orders of the Representative
Council.
Again, this is a basic parliamentary prerogative, though it was one that
has not always been honored in the PNA. Some of this was probably due
to inevitable inefficiencies with a new political system, but some officials
(though not ministers) consistently failed to respond to parliamentary
questions. This was often because they felt they answered to the
president alone. The problem was most acute with the security services.
Article (85) Every member of the Representative Council has the right to direct
interpellations to the prime minister, one of his deputies, one of the ministers, or
whoever falls under their authority in any matter that enters within their
competencies. Discussion of the interpellation is not permitted before one week
after it is presented unless the person under interpellation agrees to respond or
discuss in a shorter period. The period may be shortened by decision of the
Representative Council in case of urgency.
Arab parliamentary practice distinguishes between two levels of
parliamentary questioning of officials. One is the parliamentary question
or inquiry, as described in Article 84. Interpellation, covered in this and
the following article, is a more formal step that must be followed before
requesting a vote of no confidence.

[34] Nathan j. Brown]

Article (86) 1. After the interpellation, ten members of the Representative Council
may request the following:
a. Censure of the prime minister, the minister or who is under his authority, or
the government
b. Withdrawal of confidence from the prime minister, the minister or who is
under his authority, or the government, according to circumstances.
2. Voting shall not take place until at least three days have passed from the date of
submission of the request, and the decision to withdraw confidence shall be taken by
a majority of the total members of the Representative Council.
Three features of this article deserve mention. First, ministers are
individually and collectively responsible to the Council. Second—and
most unusually—officials under the minister also seem to be responsible;
the wording seems to allow the Council to withdraw confidence from
those who fall under the authority of ministers. Third, withdrawing
confidence requires an absolute majority of members, a slightly higher
hurdle than a simple majority of those voting.
Article (87) If a majority of all members of the Representative Council agree to
withdraw confidence from the prime minister or from more than one-third of the
ministers, the government is considered to have resigned. It continues performing its
work until such time as the new government is formed. If a majority of all members
of the Representative Council agrees to withdraw confidence from a minister, he is
considered to have resigned.
Article (88) If the president of the state or the prime minister, in case of necessity,
suggest the dissolution of the Representative Council to the Council of Ministers,
then its dissolution may be approved by a majority of two-thirds of its members, and
the president shall issue the decision of dissolution. The government shall call voters
to conduct an election for a new Representative Council in a period not less than
sixty days, in accordance with the procedures specified by the law of elections. If the
election is not held during the defined period, the Council returns to exercise its
duties until a new Council is elected. It is not permitted for the dissolved Council to
withdraw confidence from the government. It is not permitted to dissolve the
Representative Council during the first year after it is formed, or in the period of a
State of Emergency provide for in the Constitution.
The president’s ability to dissolve the Council is limited to cases in which
a special majority of the Council agrees.

The Draft Constitution of the Palestinian State: Translation and Commentary [35]

Article (89) The Government shall call for the election of the Representative Council
within sixty days before the end of its legal term in accordance to procedures
governed by law. If the government fails to call for elections within the said period,
the speaker of the Representative Council may request that the Constitutional Court
order the call for elections. If elections cannot be held at the established time
because of war, imminent danger of war, or siege that prevents constitutional bodies
from functioning regularly, the Representative Council will continue to perform its
duties until elections can be carried out within sixty days of the termination of the
obstruction.
The elaborate provisions in this and the preceding article are a clear
reaction to the experience of other Arab political systems (in which
parliaments have been shut down indefinitely) as well as the experience of
the PNA, especially since 2000, when the PLC’s term was said by some to
have expired.
Article (90) Charging the president of the state of high treason, breach of the
constitution, or commission of a felony is to be based upon the proposal presented
by one-third of the members of the Representative Council. The decision to charge
shall not be issued except if a majority of two-thirds of all the members of the
Representative Council. Immediately after the charge, the president shall cease
performing his duties, and his trial shall take place before the Constitutional Court.
Criminal responsibility of the president (as opposed to political
responsibility, which is to the people alone) is to be handled through a
combination of a political (parliamentary) and judicial process. This
seems to be an attempt to preserve separation of powers by involving both
other branches.
This article has the president ceasing his duties immediately after he is
charged by the Representative Council; Article 119 provides for new
presidential elections to be scheduled at that time. Thus, accusation by
the Council results in dismissal, not merely suspension from office. The
trial before the Constitutional Court seems designed only to assess
criminal guilt and penalties. This could raise an awkward situation in
which a president is removed by the Council but then acquitted by the
Court. Since his successor will likely have been elected, there would
presumably be no possibility of his returning to office.

[36] Nathan j. Brown]

Competence of the Representative Council with Financial Laws
From Article 91 to 100
Article (91) The law shall regulate the provisions related to the government’s
preparation of the general budget, its approval, the expenditure of designated funds,
the supplementary and development budgets, the budgets of public bodies and
institutions, and the projects in which the public sector contributes at least fifty
percent of the capital.
Under the PNA, the general budget has been prepared and approved in
accordance with legal procedures, though the executive has often been
dilatory in its legal obligations. The innovation in this article is to require
that other aspects of government finances—such as the development
budget and the activities of the public sector—are to be regulated by law.
Since 1999 (and especially in the past year), the PNA has a better record of
disclosure in such areas, but they remain topics of domestic and
international contention.
Article (92) The government shall present the draft law of the general budget to the
Representative Council at least four months before the beginning of the fiscal year,
and the Representative Council shall hold one or more special sessions to discuss it.
The discussion and voting shall be held on the clauses and chapters of the budget,
then on the budget as a whole, to approve it and refer it to the president of the state
for its promulgation.
The Representative Council shall approve the general budget in a period not less than
five months from the date of its submission in accordance with the previous
paragraph.
Should the Representative Council fail to approve the general budget within the
stated period, the president of the state may, based on a decision from the Council of
Ministers, promulgate the budget in the form it was presented to the Representative
Council.
This article is unusually detailed, reflecting the recognition that Arab
parliaments in general and the PLC specifically have not been able to play
an effective oversight role over the budget. It has several notable
provisions.
First, the requirement that the Council vote on individual items in the
budget requires the Council to exercise a level of oversight that departs

The Draft Constitution of the Palestinian State: Translation and Commentary [37]

from the practice in the PLC (in which the body has generally insisted on
transparency and compliance with the law but satisfied itself with general
suggestions about priorities without insisting on detailed modifications).
Second, the provision for parliamentary inaction is also unusual; under the
PNA’s budget law, the executive is authorized to operate on a month-to-
month budget if the general budget has not been approved as in Article 96
below).
Third, presidential prerogatives are either ceremonial or exercised upon
the request of the cabinet. Finally, it makes clear that the entire budget
itself has the status of a law.
Article (93) The Representative Council may not, during discussion of the draft law
of the general budget, increase the allocations established in the draft whether in the
form of an amendment made to it or by way of borrowing.
The precise implications of this article are unclear. It appears that the
purpose is to prevent the parliament from increasing the overall budget or
forcing any borrowing beyond that recommended by the cabinet. The
limitation on parliamentary actions seems to be designed to prevent fiscal
irresponsibility.
Article (94) The law may stipulate allocation of fund for more than one year in case
of necessity or for long-term plans as long as authorization for all of them is included
in subsequent budgets or a special budget for more than one fiscal year is established
for them.
Article (95) Conducting transfers among chapters of the budget shall not be
permitted except with the consent of the Representative Council.
Article (96) As an exception to the principle of annual budgeting, and in case of
delay in passing it of over one month, and in case the president of the state does not
use his right to issue the budget in accordance with Article 90, the government is
permitted with the consent of the Representative Council, to designate specified
amounts on the basis of monthly authorizations at a ratio of (1/12) one to twelve
from the previous budget until the new budget law is promulgated.
This has been the procedure under the PNA’s budget law (in which the
cabinet has never submitted the budget on time and only twice done so
before the fiscal year has actually begun). Article 92 contains provisions if
the Council fails to act five months after it has received the budget. But if
the cabinet submits the budget late (or even if it does so on time, four

[38] Nathan j. Brown]

months before the beginning of the fiscal year), it is still quite possible for
the year to begin without an approved budget.
The reference to Article 90 appears to be an error; presumably it is Article
92 that should be referenced.
Article (97) The government must present the final accounting of the budget to the
Representative Council within a period not more than six months from the date of
the end of the fiscal year.
A similar provision exists in the PNA budget law; it has never been
honored on time and the final accounts presented have been criticized by
the PLC’s budget committee reports as inadequate.
Article (98) Designation of public funds or their expenditure shall only be by law.
Law shall determine the basis for granting salaries, compensations, assistance, and
rewards that are approved from the public treasury as well as the agencies responsible
for applying them. Disbursement of any exceptional amount shall not be permitted
except within the limitations provided for by law.
Article (99) Imposition, amendment or cancellation of taxes shall be by law. Taxes
and fees shall be accredited to the public treasury and accounted for in accordance
with the provisions of the law. Their payment shall not be forgiven except in cases
provide for by law. In imposing and Taxation can only be waived in cases
determined by law. Attention shall be given in imposing and accounting for them to
equality and social justice.
Article (100) The law shall define the bases for contracting loans and the procedures
related to granting concessions and encouraging external investments or obligations
connected with the exploitation of natural resources and public facilities.
These three provisions all seem aimed to counteract practices that have
prevailed in the PNA: some portion of public funds have remained off the
official books; salaries have been fixed on an ad hoc basis and paid in
ways that make accounting difficult; senior officials (most particularly the
president himself) have authorized expenditures without a clear legal
basis; enforcement of taxes has been haphazard (sometimes excessively
lenient, at other times quite roughly; and sometimes involving agencies
such as the security services that bear no obvious relationship to revenue
collections); rates have been pegged in bilateral agreements to Israeli
taxes and not based on Palestinian law; ministries have contracted loans
outside of any legal framework or clear oversight; investments have been
made similarly outside of any structure of accountability; and concessions

The Draft Constitution of the Palestinian State: Translation and Commentary [39]

and monopolistic licenses granted not merely without a legal basis but
also completely outside of public view.
Some of these practices can be attributed to the rudimentary nature of
PNA structures at their founding and indeed (under heavy domestic and
international pressure); they have begun to ease since 1999 and especially
since 2002.
However, it should be pointed out that many of the provisions of these
articles, while they clearly react to undesirable PNA practices, have
already found their way into Palestinian law (especially the budget law).
It has taken some time to have these provisions implemented, however.
Perhaps the extraordinary level of detail in this section of the draft
constitution should be seen as an effort to strengthen the legal basis for
more accountable and transparent fiscal practices. There is little other
explanation for the decision to include ten articles on the budget and
fiscal matters.

Rights, Immunities and Duties of Representatives
From Article 101 to Article 108
Article (101) The financial prerogatives of a member of the Representative Council
in terms of remuneration and privileges shall be defined by law. Amendments that
the Legislative Council makes to them shall only be effective for the members of the
Representative Council that is elected after the Representative Council that approved
them.
Article (102) It is not permitted to infringe upon the immunity of the members of
the Legislative Council during their term in office, question them civilly or criminally
because of the opinions they express, the facts they mention, or their specific votes in
the sessions of the Representative Council or its committees. It is not permitted to
question them for what they express outside of the Representative Council in
implementation of their representative duties.
Article (103) It is not permitted to ask a member of the Representative Council to
give testimony on a matter connected with their actions or statements or on
information he obtained in his capacity during his membership except with the
consent and prior approval of the Representative Council.
Article (104) It is not permitted for a member of the Representative Council to be
subject to any criminal procedures or brought before the judiciary unless the

[40] Nathan j. Brown]

Representative Council agrees, by a majority of its members, to lift his immunity or
after he clearly waives his immunity before the Representative Council and the
Council accepts the waiver. In the case of apprehension in flagrante delicto of a
member committing a felony as defined in the criminal code, it is possible to
immediately start criminal proceedings against him or arrest him, provided that the
Council Presidium is immediately notified. The Representative Council is then to
ensure to the soundness of the proceedings taken against the member. If the
Representative Council is not in session, approval must be obtained from the speaker
of the Representative Council, and all the Co8uncil must be notified, in the first
session it holds, of the procedures that have been instituted against the member.
Article (105) A member of the Representative Council is responsible to the Council,
which may, based on a request from fifty of its members, discuss removing his
membership in the Council if he perpetrated a deed that offends the honor of his
representative duty. If the Representative Council agrees to the request by a majority
of all of its members, the matter is referred to the Constitutional Court, which
decides on the request expel the member. The Standing Orders of the
Representative Council shall determine the conditions and terms according to which
a member is presented with expulsion and the necessary procedures to refer the
request of termination to the Constitutional Court. None of this detracts from the
personal responsibility stipulated by law for what a member of the Representative
Council perpetrates in terms of violations of the law.

The Arabic word “mukhalifat” is used in the last sentence; it means both
“violations” and “misdemeanors.” It is therefore likely that the article
deals only with felonies and that parliamentary immunity does not extend
to misdemeanors, although the Arabic remains ambiguous on this score.
Article (106) Immunity shall not cease with the termination of membership in the
Representative Council for the statements and actions that it covered during the time
that the member of the Council enjoyed the status of membership.

Article (107) It is forbidden for a member of the Representative Council, during his
term of membership, to be appointed to any public or private employment or to
purchase anything from the state property or to rent or sell anything from its
property, or to barter for them, or to execute a contract with the state as a
concessionaire, importer, or contractor. The law shall preserve the employment and
positions of state employees who win membership in the Representative Council.
The Representative Council shall decide upon the requests of its members to resign.
The Standing Orders of the Representative Council shall regulate the conditions
under which the Council shall accept the resignation of one of its members.

The Draft Constitution of the Palestinian State: Translation and Commentary [41]

This covers several areas that have emerged as problematic for the PNA.
First, some members have conducted business with state bodies. Second,
`Arafat has appointed some PLC members who lost ministries to other
public positions. Third, one PLC member resigned (Haydar `Abd al-
Shafi) and there were no clear procedures on how to deal with the
resignation.
The article does not—nor could it—completely resolve all these issues.
For instance, the bar to conducting business does not extend to family
members, but that has been one of the ways in which the PNA has
tolerated corrupt practices. Further, the bar to public employment has
existed in the Basic Law (in effect since 2002) but has not yet been
implemented.
While this article therefore addresses some problematic areas, it is no
substitute for a more extensive legal framework (and perhaps a code of
conduct) governing such matters.
Article (108) A member of the Representative Council is to submit, during the first
month of the beginning of his term in office, a personal financial statement for
himself, his spouse, and his minor children, detailing what he owns of movable and
non-movable property, debt liabilities inside and outside Palestine, and civil liabilities.
The statements shall be filed with the Constitutional Court.
The financial disclosure requirements are an innovation, but the article
does not make clear how these statements are to be used. As with the
previous article, this may be an important step but will depend on (as yet
unwritten) legislation in order to serve as the basis of real disclosure and
transparency.

The Advisory Council
From Article 109 to Article 111
Article (109) An Advisory Council shall be created by virtue of this constitution
composed of one hundred and fifty members; it shall have an independent
personality. Care shall be taken in its formation to portion of the distribution of
population of Palestinians inside Palestine and outside of it. The law shall regulate
the terms and methods of election of its members or their appointment according to
the countries where they live. The president of the state shall be permitted to
appoint members in the Advisory Council who do not bear Palestinian citizenship if

[42] Nathan j. Brown]

they have been distinguished for providing outstanding services to the Palestinian
cause, provided that they do not exceed ten members.
Article (110) The Advisory Council shall be concerned:
• with the study of general strategic issues and providing suggestions regarding
them.
• with providing suggestions in all matters connected with national rights and
the integrity of Palestinian soil and the rights of Palestinians abroad.
• With discussion of constitutional amendments and expressing an opinion in
those that have been proposed.
• With topics the president of the state refers to the Council connected to
public policy in Arab and international affairs for the state of Palestine.
• With draft laws which the president of the state refers to it connected to
Palestinians abroad.
• With what members of the Advisory Council decide to put forward for
discussion on its agenda.
Article (111) The Advisory Council shall send its recommendations to the president
of the state, the prime minister, and the speaker of the Representative Council. The
recommendations of the Advisory Council shall be published in the Official Gazette
upon the request of the president of the state.
The body termed the “Advisory Council” has evolved in various drafts of
the constitution, though its basic purpose—to provide a voice for all
Palestinians, even outside of Palestine—has remained constant.
In earlier drafts, the body was referred to as the “National Council,” and
implicitly seemed to be identical to (or eventually the successor to) the
“Palestinian National Council,” the constituting body of the PLO. It
served as the upper house of the Palestinian parliament, though its role
was not well defined.
It still shows some traces of that origin in the current draft, but much has
changed:
• First, the Council exists only “by virtue of the constitution” and
therefore is not linked to the PLO.
• Second, it is strictly advisory in nature and its mandate is clearly
focused on those matters that clearly concern the Palestinian
people as a whole.

The Draft Constitution of the Palestinian State: Translation and Commentary [43]

• Third, there is some recognition of the difficulty of its formation.
It seems that its members from the state of Palestine will be
elected; the members from outside Palestine will likely be
appointed (though they may be elected in places permitting such
election). The provision allowing for non-citizens is probably
designed to include those who are ethnically Palestinian but who
cannot accept Palestinian citizenship without jeopardizing their
position in their home country.
There has been some international concern expressed that the existence
of such a body will encourage a less conciliatory policy on the part of the
Palestinian state, especially because it is likely to have a large number of
those considered refugees. This may be the case, though the body’s
advisory nature will limit its influence. It also should be noted that the
Council could have the opposite effect: it may provide the Palestinian
diaspora with an authoritative voice endorsing a permanent settlement.
One cost of detaching the body from the PLO will be to leave the
relationship between the PLO and the new state of Palestine more
ambiguous. The overlap and hazy distinction between the PNA and the
PLO has been a frequent complaint of Palestinian reformers; the
constitution offers no clear provisions for the role or fate of the PLO.

Chapter Three/Section Two:
The Executive Branch
From Article 112 to Article 158
First: The President of the State
From Article 112 to Article 130
Article (112) The president of the state is the president of the republic. He shall
defend the constitution and the unity of the people, guarantee the continuity of the
endurance of the state, national independence, and the orderly functioning of public
authorities. His shall exercise his competencies and his responsibilities shall be
defined in accordance with the provisions of the constitution. Except for the
competencies constitutionally attributed to the president of the state, the executive
and administrative competencies of the government shall be within the competence
of the Council of Ministers.

[44] Nathan j. Brown]

The penultimate sentence of this article seems designed to ensure that the
president operate fully within the constitution; under the PNA the
presidency was created before the Basic Law and was not effectively
constrained by it until 2003.
The final sentence suggests a major departure not only from the pattern of
the PNA but also of Arab governance more broadly, in that it places most
executive authority in the cabinet rather than the head of state.
Article (113) It shall be stipulated that a nominee for the position of president of the
state must bear Palestinian citizenship exclusively, not be less than forty years of age
on the date of his nomination, and enjoy civil and political rights.
Article (114) The president shall be elected directly by the people for a period of
office of five years. It is not permitted to re-elect anyone who has occupied or
occupies the position of president of state except for once.
The direct election of the president is one of the few remaining provisions
that allow him some authority. Generally, directly elected presidents, able
to cite a stronger measure of democratic legitimacy than those elected by
parliaments, exercise their constitutional prerogatives with greater
independence.
The constitution does not specify whether previous service as president
(prior to the adoption of the constitution) counts toward the term
limitation, but presumably it does not. (Yasir `Arafat has been president
of the state of Palestine as proclaimed in 1988, but he has rarely used the
title since the creation of the PNA.)
Article (115) The president-elect shall assume his duties immediately upon
conclusion of his predecessor’s term. If it is the case that the position of president of
state is vacant as a result of the commencement of procedures to dismiss the
president or as a result of death, resignation, loss of legal qualifications or abilities in
accordance with Articles 90 and 118 of this constitution, the new president will begin
his duties immediately upon the completion of election procedures. Before
exercising the duties of his office, the president shall take the following constitutional
oath in front of the Representative Council with the presence of the president of the
Supreme Council for the Judiciary: “I swear by Almighty God to be faithful to the
homeland and its holy places and to the people and their national heritage; to honor
the constitution and the law; and to safeguard fully the interests of the Palestinian
people; as God is my witness.

The Draft Constitution of the Palestinian State: Translation and Commentary [45]

This oath is different from that taken by other legislative and executive
officials (see Articles 68 and 136; though in Article 163, the judicial oath is
to be determined by law). The differences are likely only of symbolic
importance.
Article (116) The president shall submit during the first month of his assuming the
responsibilities of office a financial statement for himself, his spouse, and his minor
children, detailing what they own of movable and non-movable property, debt
liabilities inside and outside Palestine, and civil liabilities. The statements shall be
filed with the Constitutional Court.
See the comment on Article 108.
Article (117) The remuneration of the president of the state shall be determined by
law.
Article (118) The office of the president shall be considered vacant:
• Upon death;
• Or upon resignation;
• Or by loss of legal qualification or inability to perform the constitutional
duties by decision issued by the Constitutional Court pursuant to a request by
two-thirds of all members of the Representative Council.
The intention seems to allow for removal of the president in exceptional
circumstances but not to make him politically responsible to other state
structures.
Article (119) If the office of the president becomes vacant or the Representative
Council decides to charge him in accordance with Article 90 of the Constitution, the
Speaker of the Representative Council shall assume presidency of the state
temporarily for a period not exceeding sixty days, during which presidential elections
are carried out in accordance with the Law of Elections. Should the Speaker of the
Council wish to submit his candidacy for presidency, or should a legal hindrance
prevent him from assuming presidency, the president of the Constitutional Court
shall assume presidency temporarily until the completion of procedures to elect the
president. The president of the Court, in this case, may not present himself for the
presidency.
These provisions are very similar to those in Egypt. But they go farther:
the Egyptian constitution does provide for a vice president, though not for
his automatic succession to the presidency (and thus the
designation of a

[46] Nathan j. Brown]

successor in Egypt is strictly informal). The Palestinian constitution
leaves the matter entirely up to the electoral process.
Reading article 90, 113, and 119 together suggests that the president must
leave office once accused by the Representative Council, regardless of the
eventual ruling of the Constitutional Court and cannot run for subsequent
election unless the Constitutional Court acquits him.
Article (120) The president of the state is to direct the Council of Ministers in setting
public policy.
This vague article seems to introduce the president into the policy process
while other more specific articles suggest a far more limited role.
Article (121) The president of the state shall charge a prime minister upon the
recommendation from the party obtaining the largest number of seats in the
Representative Council, after conducting consultations with the leaders of the other
parties represented in the Representative Council. If he is unable to compose a
government during a period of forty-five days, the president shall name a new prime
minister from and so on until the government is formed.
This is a critical article for determining the nature and authority of the
president and the prime minister. It is unclear how it would work in
practice, because the political and party context will be just as important
as the article’s provisions in determining the result.
One of the main issues will be how much influence the president will have
over the choice of prime minister. There are some important ways in
which his choice is not restricted: the prime minister need not come from
the parliament and indeed must only come from the largest party able to
form a government.
However, the phrasing of the article implies that the political party has a
strong, even defining, role in determining whom the president designates
(the Arabic term “bi-tansib” implies that the party itself refers its nominee
to the president).
If the current political party system prevails (in which Fatah is the largest
party but is itself a loose coalition) It is quite possible—even likely–that
the critical choice of who will serve as prime minister may effectively be
transferred, at least in part, from the realm of parliamentary politics to the
realm of party politics. And, at least under the PNA, the president is also
the head of Fatah. Thus, his influence over the choice of prime minister
will be greater than this clause might initially imply. A stronger party

The Draft Constitution of the Palestinian State: Translation and Commentary [47]

system would diminish this presidential role, but that is unlikely to
emerge very soon.
Once he selects the prime minister, however, the president has little say
over the composition of the cabinet and does not seem to be in a position
to bring it down if he is displeased with its composition or performance.
Again, given the current party system (in which Fatah has a majority but a
rather undisciplined one in the PLC), the result is likely to increase the
role of the parliament over the composition of the cabinet.
The most likely result, then, is that internal party politics would influence
the choice of prime minister, but Council politics would influence the
choice of the rest of the cabinet. Of course, much of this could change
over time as the party system and parliamentary tradition evolve; there is
probably no area where it is more difficult to predict the actual operation
of constitutional text.
Earlier drafts required the president to turn to the second largest party if
the first designee for prime minister failed in forming a government. The
removal of this provision brings Palestine into accordance with more
standard practice, though it also increases the latitude given to the
president in selecting a prime minister.
Article (122) The president of the state shall ratify laws after their approval by the
Representative Council, within thirty days of their referral to him, and he shall order
their publication. The president of the state may, before the end of this period,
object once to a draft law that was approved by the Representative Council or
request its reconsideration, accompanied by the reasons for his objection within thirty
days of having received it. If the aforesaid period ends without ratification of the law
or objection to it, the law shall be considered effective and must be published in the
Official Gazette, and the Constitutional Court shall request that the president of the
state to issue an order to that effect immediately. If the president of the state returns
the law approved by the Representative Council within the legal time and the
Representative Council approves it again by a majority of two-thirds of all of its
members, the law shall be considered effective and it must be published. The
Constitutional Court, depending on circumstances and based on the request of the
Representative Council, shall take responsibility for issuing the order to publish the
law.
Some of these provisions mirror those in Article 81. The most notable
change from PNA practice is that the president is simply to explain his
objection; in the PNA he also submitted suggested amendments (this is
not explicitly barred but neither it is encouraged in this article). In the
proposed constitution, he may either approve a law or reject it (or request

[48] Nathan j. Brown]

reconsideration). Thus, his veto power, though strong, might become a
clumsier weapon.
And in keeping with other articles, the Representative Council need not
rely on the president for promulgation of the law.
Article (123) The prime minister, or the minister he delegates, is responsible for
negotiations for concluding international treaties and informs the president of the
state on the course of the negotiations, provided that the conclusion of international
treaties is bound by the agreement of the Council of Ministers and approved by the
president in accordance with the provisions of Article 79 of this Constitution.
The level of detail in Articles 79 and 123 are probably best understood as a
reaction to the ambiguities surrounding negotiations and agreements
prevailing at present. Under the Oslo Accords, most negotiations are to
be carried out by the PLO rather than the PNA. The PLO, is, of course,
headed by Yasir `Arafat, who also serves as president of the PNA. Most
PLO negotiators have had senior PNA positions as well. In 2003, the
PNA transformed its Ministry of Planning and International Cooperation
into a Ministry of Foreign Affairs, joining but not replacing a host of PLO
structures to conduct diplomacy and foreign affairs. The appointment of
Abu Mazin as prime minister hardly clarified matters, because he held an
important PLO negotiations portfolio.
This has led not only to confusion but lack of accountability and the
marginalization of the PLC from any oversight role.
The clauses also remove the president from much of the process, though
this article requires that he be informed and has him approve treaties.
Since this approval function is carried out “in accordance with the
provisions of Article 79”—provisions which do not mention the
president—it is likely that this approval simply consists of formal (and
largely symbolic) ratification of treaties that have been concluded
according the constitutional provisions.
Article (124) The president of the state performs, in addition to the authorities
stipulated in the constitution, the following authorities:
ƒ He heads the Council of Ministers when a state of emergency is in effect and
in similar exceptional circumstances.
ƒ He issues decrees and requests their publication. He has the right to request
that the Council of Ministers reexamine any decrees it has issued also within
fifteen days from the date of its delivery to the presidency of the republic. If
the Council of Ministers decides by a majority of two-thirds of its members

The Draft Constitution of the Palestinian State: Translation and Commentary [49]

on the issued decree if the period passes without the decree being issued or
returned, the decree is considered effective and it must be published.
ƒ He alone issues the decree naming the prime minister and the decree
accepting the resignation of the government or considering it resigned.
As for other decisions and decrees, it is necessary that the prime minister and
the miniser or ministers concerned co-sign them. The prime minister alone
co-signs with the president on decrees issuing laws, decrees reexamining laws,
and decrees summoning the Representative Council to meet in special
sessions.
ƒ He delivers when necessary the speech to the Representative Council without
discussion.
ƒ He forwards draft laws approved by the Council of Ministers to the
Representative Council.
ƒ He grants special pardons for criminal punishments or lessens them. General
amnesties shall only be by law.
ƒ He grants medals of state by decree.
This article is remarkable for how it restricts many functions of the
president. The precise formulation seems oddly detailed, but the pattern
might be best described as converting many of the important functions
the PNA president into far more symbolic ones for the president of
Palestine. For instance, under the PNA, the president heads the cabinet
and therefore often acts for it in communicating with the PLC. He is not
a member of the cabinet under this draft constitution (and he heads it
only during states of emergency), but he still retains the formal function of
relaying draft laws from the cabinet to the Representative Council.
Similarly, most administrative regulations are issued by presidential
decree under the PNA. That continues in a formal sense but the
president loses much ability to act independently (he does retain a
vestigial but real veto power over such regulations, however). The
requirement that the prime minister and a relevant minister co-sign his
action accentuate this conversion of presidential functions to ceremonial
duties, since such ministers are politically responsible to the
Representative Council (and thus the president can only act in these
instances with the agreement of officials who fall under parliamentary
oversight).

[50] Nathan j. Brown]

Article (125) The president of the state shall appoint the ambassadors of the state
and representatives of the state of Palestine to states and international and regional
organizations and relieve them of their duties, on the recommendation of the relevant
minister. He shall accept the credentials of representatives of foreign states and
international and regional organizations.
Significantly, the president’s role here seems to be to formalize the
decisions of a minister, a further step in the direction of a parliamentary
system.
Article (126) The president of the state is the supreme head of the Palestinian
national security forces which is headed by a cognizant minister.
I have tried to preserve the ambiguity of the Arabic, in which the
president is the ra’is (which means president, chairman, or head) of these
forces, while a minister “yar’as” (which means heads or presides) over
them. The intention seems to make the president the ceremonial head
without removing ministerial (and indirectly parliamentary) oversight.
It is not clear precisely what the “national security forces” are, but the
broad phrasing may be used to cover various internal and external forces,
especially if the state of Palestine is limited by international agreement in
fielding a regular army.
The language in this article is repeated in Article 153 where I have made
some additional comments.
Article (127) The president of the state may establish specialized advisory councils
from qualified, specialized and expert persons to participate in expressing opinions
and to benefit from national capabilities.
While under the PNA, the president has asserted an authority to create
administrative bodies, this article provides only for advisory ones.

State of Emergency

Article (128) The president of the state may, by agreement with the prime minister
and with the consultation of the speaker of the Representative Council, in case the
security of the country is exposed to threat of war or natural disaster or siege in a way
that threatens the safety of the society and continuing operation of its constitutional
institutions, announce a state of emergency. A state of emergency shall not be
declared except when its measures are necessary to restore public order or the

The Draft Constitution of the Palestinian State: Translation and Commentary [51]

organized functioning of the authorities of the state or confront disasters or the state
of siege. The effective period of a state of emergency may not extend for over thirty
days; it may be renewed only once by the agreement of two-thirds of all members of
the Representative Council, except in case of war. In all cases, the declaration of the
state of emergency must define the goal, region, and time period it covers.
Article (129) The Council of Ministers may, after the declaration of a state of
emergency and if events necessitate speed in taking steps to confront suddenly-arising
matters that do not admit of delay until the Representative Council meets, issue
decisions to be approved by the president within a period that may not exceed fifteen
days. They shall have the force of law. These decisions shall be presented to the
Representative Council in its first meeting after the declaration of the state of
emergency or in the session to extend the state of emergency, whichever comes first,
to pass them or their legal force ceases retroactively. If the Representative Council
does not approve them their legal effectiveness ceases and the Council shall decide
the method to settle their effects without harm to the material rights of others.
Article (130) It is not permitted during a state of emergency to impose limitations on
basic rights and freedoms except to the extent necessary to preserve public order in
the country. All decisions and actions the Council of Ministers takes during the state
of emergency are subject to judicial review. The competent court shall begin
examination of submitted grievances within a period not exceeding three days.
These three tousled articles present a tumble of clauses designed to
confront one of the most difficult issues in Arab constitutional practice:
states of emergency. On the one hand, the state of Palestine is likely to
confront a very difficult security environment that may require exceptional
measures in order to protect the society’s interests. On the other hand, all
of Palestine’s rulers in this century have used security justifications to
eviscerate any legal safeguards and constitutional guarantees. Other Arab
states have experienced similar problems.
The result in this draft may seem at first glance to be almost
schizophrenic: it seems to be to attempt to anticipate unanticipated
situations; and simultaneously to enable exceptional actions while
insuring that they follow certain rules. The animating spirit of the articles
may perhaps best be understood in historical context.
States of emergency have certainly been greatly abused in Arab
governance. Some have been declared in order to shut off debates over
policy; others have been used to bring into force legislation favored by the
rulers but unlikely to be passed by the parliament. Some states of
emergency have been limited not only in scope but also in time: Egypt,

[52] Nathan j. Brown]

for instance, has lived in a nearly-continuous state of emergency (with
only short interregnums) for over six decades.
Thus, these articles attempt to forestall attempts to abuse states of
emergencies in such ways. Whether the constitutional draft will be
successful in this regard can be ascertained only in practice, but it should
be noted that the draft contains the most extensive provisions in the Arab
world for governing the operation of states of emergency.
Several features merit specific mention:
• Article 128 places the responsibility for the declaration in the
hands of the president—which is not unusual—but requires that it
be done with the agreement of the prime minister and that the
speaker of parliament be consulted. If Palestinian politics does
indeed follow the inclination of the draft toward a parliamentary
system, it is likely that the real imitative would rest with the prime
minister.
• There is no direct parliamentary oversight over the original
declaration of the state of emergency. The speaker must be
consulted (a weak provision) but requiring the agreement of the
prime minister—himself accountable to parliament marks a less
direct but probably far more effective instrument of parliamentary
oversight.
• The parliament must agree—with a supermajority—to renew the
state of emergency. This is not unusual. What is unprecedented
is the restriction on a state of emergency to two periods of thirty
days. (This does not apply to wartime states of emergency.) Such
a limitation seems extremely confining.
• There are several other limitations placed on a state of emergency:
measures taken must be relevant to the emergency, a clear reason
must be adduced for the declaration, and the declaration may
limit the geographical scope of the emergency.
• While parliamentary oversight over the declaration is incomplete,
decree-laws issued under the state of emergency operate under
fuller parliamentary oversight. The wording is complicated, but
seems to demand that such decree-laws be submitted and that
they lose their effectiveness retroactively if they are not. When
they are submitted, they may either be approved or rejected by
parliament. If they are rejected, it is up to the parliament to
decide how actions taken under the decree-laws are to be treated.

The Draft Constitution of the Palestinian State: Translation and Commentary [53]

• Article 129 appears to suffer from two ambiguities in drafting.
First, the reference to the president (who must approve the laws)
does not specify the “president of state” as other articles in the
constitution do. It could refer to the prime minister (whose formal
title might be translated as “president of the council of ministers”)
or even the speaker of parliament (the Arabic word ra’is refers to
president, chairman, and speaker). The nature of the duty
suggests that the president of the state is the official who must act.
Second, there is an apparent redundancy in requirement that
decree-laws be submitted to the Representative Council: they
must “be presented to the Representative Council in its first
meeting after the declaration of the state of emergency or in the
session to extend the state of emergency, whichever comes first.”
The final phrase would seem to be redundant, though there may
be a distinction between “meeting” and “session,” the first being
regularly scheduled.
• Article 130 mentions “basic rights and freedoms,” raising the same
issues as Article 57.
• The insistence that actions taken under a state of emergency are
subject to judicial review is not unprecedented, but it runs counter
to the practice introduced into Arab constitutional practice by the
British of keeping emergency measures out of the courts. What
is
unprecedented is the provision for the courts to take up claims
against emergency measures immediately.

Second: The Prime Minister
Article 131 to Article 140
Article (131) Whoever is appointed prime minister or minister must bear Palestinian
citizenship exclusively and have reached at least thirty-five years of age.
Article (132) The prime minister shall be responsible for formation of the
government and he shall mention in the formation which he presents to the president
the portfolio which is assigned to each minister. The prime minister shall present the
members of his government and his program to the Representative Council to obtain
confidence.
The requirement that the prime minister indicate the portfolio for each
minister would seem to require that any change in ministerial

[54] Nathan j. Brown]

responsibilities among existing ministers be presented to the president
and approved by the Representative Council as well. This is further
elaborated in Article 135 below. The principle was established with some
difficulty in a 2002 PNA cabinet reshuffle.
Article (133) If the prime minister fails to obtain the confidence of the
Representative Council within three weeks of his being charged the president will
charge a new prime minister in accordance with Article 121 of the constitution. Until
the new government succeeds in obtaining the confidence of the Representative
Council, the outgoing prime minister leaving office shall be considered head of a
caretaker government in the narrow sense.
This clause reflects a fear that ministers may take action before they are
granted parliamentary confidence; a controversy arose on this issue in the
2002 cabinet reshuffle in the PNA. The precise meaning of “narrow
sense” is not clear, though the intention is probably to discourage the
outgoing prime minister from undertaking any significant or irreversible
initiative. The status of other outgoing ministers is not specified, but
Article 87 and Article 135 would seem to indicate that they continue until
their successors have been approved by the Representative Council.
Article (134) The prime minister supervises the work of the ministers. Each minister
shall be responsible to the Council of Ministers according to the procedures
established by the provisions of this constitution. The prime minister and the
ministers are responsible individually and collective to the Representative Council for
the actions of the government.
Article (135) When making a ministerial change, adding a minister, or filling a
vacancy for any reason whatsoever, it is necessary that the new minister(s) be
presented to the Representative Council in the first session the Council holds after
the ministerial change in order to vote confidence in him/them. If the number of
those included in the change exceeds one-third of the members of the government, it
is necessary to put forward the confidence in the ministry as a whole. In all cases, it
is not permitted for the prime minister or any minister to exercise the duties of his
position except after he has obtained confidence from the Representative Council.
Article (136) After obtaining the confidence, the prime minister and the ministers
shall take the following oath before the president of the state and the Representative
Council in a joint session: “I swear by Almighty God to be faithful to the homeland,
to preserve the rights of the people and the nation and its interests, to honor the
constitution and the law, and to undertake my duties rightfully, as God is my
witness.”

The Draft Constitution of the Palestinian State: Translation and Commentary [55]

The reference to a “joint session” is unclear; it may be a vestige of
provisions in earlier drafts for the “National Council” (now evolved into
the “Advisory Council” in this draft) to meet with the Representative
Council for some purposes.
Article (137) The prime minister exercises the following competencies:
ƒ He represents the government and speaks in its name. He is considered
responsible for the implementation of public policy as set by the Council of
Ministers.
ƒ He presents the general policy of the government to the Representative
Council.
ƒ He summons the Council of Ministers to meeting, establishes the agenda,
informs the president of it, and presides over its sessions.
ƒ He oversees the work of public agencies and institutions, coordinates among
ministers, and gives general instructions to ensure proper functioning of
work.
ƒ He signs executive and regulatory decrees.
ƒ He oversees the executive of laws and regulations and coordinates
government policies and programs.
ƒ He approves appointments for senior positions, based on the
recommendation from the cognizant minister in accordance with legally-
determined principles for appointments in ministries and state agencies.
ƒ He submits suggestions for draft laws.
ƒ He orders the publication of laws passed by the Representative Council after
the president of state has approved them they are considered to have become
legally effective.
ƒ Any other competencies designated to him by law.
This article has far-reaching implications in converting Palestinian
governance from a presidential to a parliamentary basis. First, and
perhaps most significantly, the draft departs from standard practice in
many Arab political system by having the prime minister alone chairs
cabinet meetings. It is far more common for the head of state to preside if

[56] Nathan j. Brown]

he decides to attend. Indeed, previous drafts contained such a provision;
its exclusion from the current draft creates a real prime minister.
Second, the prime minister, and not the president, issues decrees and
regulations and makes senior appointments.
Third, he is responsible for publication of laws, a sensitive issue under the
PNA.
Also of interest is the focus on ensuring that laws regulate many of these
matters (such as appointments), diminishing the discretionary nature of
executive authority.
The third to last bulleted point—allowing the prime minister to propose
draft laws—does not make clear whether he must propose them to the
cabinet for endorsement or whether he can submit them directly to the
Representative Council.
Article (138) Neither the prime minister nor any minister may combine the ministry
with any other work, pursue a free profession, buy or rent any state property, rent or
sell to it any of his property, or barter with it. It is forbidden for the prime minister
or any minister to use information which he obtained directly or indirectly by virtue
of his work to realize material game for him or fore any other person in violation of
the law.

This article contains fairly strong conflict-of-interest provisions that take
on special resonance because of practices prevailing in the PNA. The
final phrase also suggests that implementing legislation will be required.
Article (139) The prime minister and ministers shall receive monthly compensation
and pension established by law.

Article (140) The prime minister and the ministers shall each individually submit,
within thirty days of receiving confidence, a financial statement for him, his spouse,
and his minor children, detailing what they owns of movable and non-movable
property, debt liabilities inside and outside Palestine, and civil liabilities. The
statements shall be filed with the Constitutional Court.

See the comment on Article 108.

Third: The Council of Ministers (The Government)
From Article 141 to Article 146

The Draft Constitution of the Palestinian State: Translation and Commentary [57]

Article (141) The Council of Ministers shall be composed of the prime minister and a
number of ministers, at most half of them members of the Representative Council.
Article (142) Executive authority shall be entrusted with the Council of Ministers.
This article marks a highly unusual—if purely doctrinal—departure from
prevailing Arab constitutional structures in which the head of state is
considered both a part of the executive branch and an authority above all
branches of government.
Article (143) The Council of Ministers shall meet regularly on the call of the prime
minister who shall preside at its meetings. The legal quorum for its convening is two
thirds of all of its members. It takes its votes by a majority of those present as long
as there is no contradictory text in the constitution or in the ordinance of the
Council. The Council of Ministers exercises its competences in accordance with the
constitution, the law, and the ordinances regulating the work of the government.
Such detailed provisions—extending even to quorum–seem unusual in a
constitution; they are generally left to less general legal enactments.
Article (144) The Council of Ministers shall have the following competencies:
ƒ Setting public policy, in the light of the ministerial program approved by the
Representative Council.
ƒ Implementing public policy as established, laws and regulations, ensuring
compliance therewith, and proposing new draft laws.
ƒ Preparing the draft general budget to be presented to the Representative
Council for approval.
ƒ Organizing, supervising, and overseeing the work of the agencies,
institutions, and offices of the state at their various levels.
ƒ Monitoring the performance of the ministries, public agencies and
institutions, and offices and overseeing their work.
ƒ Discussing the proposals, plans, and policies of each ministry in the field in
which it exercises its competencies.
ƒ Approving the system of administrative formations.

[58] Nathan j. Brown]

ƒ Issuance of organizational regulations, regulations necessary for measures to
implement laws, regulations of controlling and organizing public interests and
facilities.
ƒ Appointing civilian and military personnel, pursuant to the recommendation
of the cognizant minister, and in accordance with the stipulations of law.
ƒ Any other competencies granted pursuant to the provisions of the
constitution and the law.
Article (145) The law regulating the work of the executive authority shall establish
standing committees in the Council of Ministers. From among their chairs one or
more deputy shall be selected for the prime minister.
Article (146) The Council of Ministers shall issue the regulations necessary for the
exercise of its powers.
This seems to indicate that most of the internal operations of the cabinet
are not to be governed by law passed by the Representative Council but
instead determined by the cabinet itself.

The Ministers
From Articles 147 to Article 152
Article (147) The minister is the supreme administrative head of his ministry. Each
minister shall have the following competences within the sphere of the ministry with
which he is entrusted, under the supervision of the prime minister:
ƒ Proposing public policy for his ministry and overseeing its implementation
after its adoption.
ƒ Overseeing the course of work at the ministry and issuance of the necessary
directives for the performance of his duties.
ƒ Submitting to the council of ministers proposed draft laws related to his
ministry.
ƒ Implementing the general budget within the scope of his ministry and
according to the allocations approved for it.

The Draft Constitution of the Palestinian State: Translation and Commentary [59]

ƒ Choosing senior employees and recommending them for appointment by the
Council of Ministers. The appointment of employees of lower ranks will be
among the competencies of the minister within the framework of the law and
within the limits of the budget.
ƒ Delegating some of his administrative competences to the deputy minister or
other senior administrative officials in his ministry in accordance with the
law.
ƒ Supervising the implementation of laws and regulations related to his
ministry.
ƒ Any competence legally assigned to him.
Article (148) Each minister shall work within the boundaries of his competence to
execute the laws, regulations, and governmental plans and programs in the manner
indicated in this constitution and the laws regulating the work of the executive
branch.
Article (149) Indicting the prime minister or a minister for high treason, violating the
constitution, or committing a crime shall be based on a request submitted by one-
third of the members of the Representative Council. The decision to indict shall not
be issued unless two-third of all the members of the Representative Council agree.
The accused shall be referred for investigation immediately after the issuing of the
decision to indict.
This provision seems designed to ensure that ministers are criminally
responsible for their actions, but the procedure is more cumbersome than
for holding ministers politically responsible.
Nineteenth-century constitutions in monarchical systems often worked to
ensure that ministers could not claim immunity from prosecution on the
grounds that they were acting as agents of the sovereign and therefore
responsible only to him. Even in cases in which ministers were not clearly
political responsible to parliaments, constitution-writers often wanted to
ensure that they would act within the law. Thus, they often established
special courts to try ministers (or provided for their trial by parliament).
The American practice of impeaching and trying high officials by the
legislative branch is an example of such a provision for ensuring that
criminal responsibility of some kind operated. The Kuwaiti constitution,
which provides for a special court to try ministers, is another example.

[60] Nathan j. Brown]

This constitution gives the parliament a role in indicting but then turns
the matter over to the Constitutional Court in accordance with the
following article.
Article (150) Whoever is referred for investigation ceases performing his duties,
simply by virtue of the decision of referral, until a final judicial judgment is issued
acquitting him from the Constitutional Court. The Attorney General or his
representative assumes responsibility for the procedures of investigation and
indictment. Termination of service or resignation shall not prevent undertaking legal
action or its continuation.
Article (151) The government shall be considered to have resigned and shall be re-
formed:
ƒ At the beginning of a new term of the Representative Council following
every general election.
ƒ Or after confidence is withdrawn from the prime minister or from the
government, or from more than one-third of the ministers in accordance
with Article 87 of this constitution.
ƒ Or in case of the death of the prime minister.
ƒ Or upon the resignation of the prime minister or the resignation of at least
one-third of the members of the Council of Ministers.
ƒ Or upon the prime ministers loss of his qualifications or capacity to perform
the duties of his office, in accordance with a request from a majority of all of
the members of the Representative Council and the issuance of a decision to
that effect from the Constitutional Court.
It would seem that this last provision may be unnecessary, since it would
be easier to withdraw confidence in accordance with Article 87 than to
declare the prime minister no longer qualified or capable in accordance
with this Article (in the latter case, the matter must be referred to the
Constitutional Court). Perhaps it is included because Article 87 clearly
anticipates a loss of confidence on political grounds (and follows
interpellation and parliamentary debate).
Article (152) The resigned government shall continue in directing government affairs
until a new government is formed in accordance with the provisions of the
constitution.

The Draft Constitution of the Palestinian State: Translation and Commentary [61]

This article merely repeats the language of Article 87 with the addition of
the reference of following the provisions of the constitution.

Security forces
From Article 153 to Article 154
Article (153) The national security forces belong to the Palestinian people. They shall
assume the task of protection and security of the Palestinians and defense of the
homeland. The cognizant minister shall head them and the president of the state
shall be the supreme head. It shall be forbidden to form armed groups outside of the
network of national security forces. The law shall regulate the terms and condition
for the announcement of general conscription.
The language on command mirrors that in Article 126. The language may
be seen to imply a purely ceremonial role for the president, but other
interpretations—giving him a stronger role–are possible. It would seem
that even if his authority is more than ceremonial, it must be exercised
through the cognizant minister.
Another matter of interest is that the security forces defend “Palestinians”
and not merely the homeland; they belong to “the Palestinian people” and
not merely the state. An expansive reading of this article might be taken
to imply that the security forces could play a legitimate role in defending
Palestinians in other countries. It seems unlikely that such a role could be
exercised in practice, however.
Article (154) The police is a civilian organization. It is part of the Ministry of
Interior, and the law shall regulate its role in the service of the people, defense of the
society, and vigilance in preserving security, public order, and public morals. It shall
perform its duty within the limits that are established by law and with complete
respect for the rights and freedoms stipulated in this constitution.

This article designates a ministry by name; most constitutions avoid such
a level of specificity. This insistence that the police fall under the Ministry
of Interior, along with the requirements that it be a civilian organization,
operate within the law and respect rights and freedoms must be seen as a
reaction to the experience of the PNA, in which police conduct, status,
and organization were all loosely controlled.

[62] Nathan j. Brown]

Public Administration
From Article 155 to Article 156
Article (155) Appointment of public employees and all persons working for the state
and the conditions of their employment shall be according to law.
Article (156) The law shall regulate everything connected with the affairs of the civil
service, including appointment, transfer, seconding, promotion, and retirement. The
General Personnel Bureau, in coordination with cognizant government departments,
shall work to improve and develop public administration. Its opinion shall be
solicited on draft laws and regulations related to public administration and those
employed in it.
These two articles seem designed to ensure that public employment
follow clear legal procedures. The level of specificity—including
reference to a specific government agency, the General Personnel
Bureau—is high, though implementation rests on the text of the law.
While the general intent seems to be to avoid the abuses of the PNA, it
should be noted that the PNA has passed (if only unevenly implemented)
a civil service law; an English translation can be viewed at
https://www.usaid.gov/wbg/misc/Civil_Service_Law.pdf.

The General Audit Organization
Article 157
Article (157) An independent organization with legal personality shall be established
by law to be named the “General Audit Organization.” The law shall regulate its
competencies, the manner of its formation, and the principles of its work. The
president of the “General Audit Organization” shall be appointed by a decision from
the president of the state pursuant to nomination from the Council of Ministers and
approval by the Representative Council.
The requirement that such a body be formed is not unusual—some Arab
countries have an “audit court,” a body that is designed to perform a
similar function.
The innovation, however, is to give the body some greater status and
independence by having its head approved by the Representative Council.

The Draft Constitution of the Palestinian State: Translation and Commentary [63]

While the PNA does have an audit bureau (generally referred to in
English as the General Control Institute), it has generally reported directly
to the president rather than to the PLC. (In 1997, its annual report did go
to the PLC, shocking the body and leading to a parliamentary inquiry into
official corruption. The president reacted by refusing to submit
subsequent reports, despite the provisions of the budget law requiring
him to do so).
The Basic Law does provide for similar parliamentary approval of the
head of an official auditing body, though that provision has yet to be
exercised.

Local administration
Article 158
Article (158) The law shall regulated the relationship between the government and
the local unites on the basis of administrative decentralization. The units of local
governance shall enjoy legal personality. Their councils shall be elected. The law
shall provide for the method of their establishment, formation, the election of their
councils, competencies, and jurisdictions.
The promise of decentralization will likely be met only if there is strong
legislation and some measure of fiscal autonomy. Much of the relevant
legislation regarding local government and elections has been written
under the PNA (indeed, the first law passed by the PLC involved local
government). An English translation of the law on local government can
be viewed at https://www.pnic.gov.ps/english/law/law22.html
In general, the PNA legislation contains some ambiguities, but does have
some elements that suggest decentralization. Many provisions—
especially those for elections and for fiscal autonomy—have not yet been
implemented.

Section Three:
The Judicial Branch
from Article 159 to Article 184

[64] Nathan j. Brown]

Article (159) The judicial branch shall be independent. It shall have original
jurisdiction to perform the judicial function and to decide in all disputes and crimes.
The law shall define the institutions of the judicial branch and regulate their structure.
It shall define the types of courts, their levels, jurisdictions and procedures.
Exceptional courts may not be formed.
The blanket ban on exceptional courts is unusual (though it is not
unprecedented) in Arab constitutional texts. In general, in the Arab
world, courts established for special reasons or on a temporary basis are
regarded as exceptional. Standing military courts and state security
courts are not regarded as exceptional, though special sections are
established for specific crimes might be. Under the PNA, the legal basis
for state security courts has shifted over time, but the most infamous
body—eventually termed the Supreme State Security Court—would
probably be viewed as exceptional and thus unconstitutional because of
its ad hoc nature. There was some effort under the PNA to establish a
separate standing State Security Court that would resemble the rest of the
judiciary more closely; its status at present is unclear.
Article (160) A Supreme Council for the Judiciary shall be entrusted with the affairs
of the judicial institutions. The law shall define its formation and competencies,
ensuring its independence and guaranteeing its equality in the framework of
cooperation with the other public authorities. Its opinion shall be solicited in draft
laws regulating the affairs of the judiciary. It shall establish its internal regulation.
Article (161) The president of the Supreme Council for the Judiciary shall be
appointed by a decision made by the president of the state in accordance with the
law, and he shall be approved by the Representative Council. The law shall regulate
the methods of the appointment of the members of the Supreme Council for the
Judiciary and the necessary requisites that each of them shall have.
Article (162) The Supreme Council for the Judiciary shall establish, in accordance
with the law, the regulations governing appointments, assignments, transfers,
promotions and disciplinary measures related to judges.
Articles 160, 161, and 162 attempt to provide for a judicial council that is
strong and autonomous. Most Arab states do have such judicial councils,
though the degree of their independence varies. Egypt is often seen as
having the strongest judicial council, though even there issues of judicial
independence are often raised; most other Arab states do not meet
Egyptian standards.
In general, two sorts of institutional mechanisms are used to deprive
judicial councils of autonomy. First, their composition includes strong

The Draft Constitution of the Palestinian State: Translation and Commentary [65]

representation from the executive. Second, their jurisdiction is limited
(especially over budgetary affairs).
These articles make a serious attempt to address the shortcomings in
other Arab judicial councils in three ways. First, some of the jurisdiction
of the judicial council is specified. Second, it is given the authority to
regulate its own internal affairs within the framework of the law. Third,
the president of the Council is to be approved by the Legislative Council.
This last provision is highly unusual: in most Arab states the judicial
council is headed by the head of state or by a senior judge.
While these provisions reflect a serious effort to guarantee judicial
independence, ultimately their implementation will rest on the relevant
legislation. In this regard, the PNA has an impressive record of
promulgating strong laws but to date its record of implementation is
sketchy at best. English translations of the two most important pieces of
legislation can be viewed at https://www.pnic.gov.ps/english/law/law14.html
and
https://www.usaid.gov/wbg/misc/Formation_of__Regular_Courts_doc.pdf.
Article (163) A judge shall swear the legal oath before the Supreme Council for the
Judiciary in the manner prescribed by the law of the judicial branch.
Article (164) A judge shall submit upon his appointment a personal financial
statement for himself, his spouse and his minor children, detailing what they own of
movable and non-movable property, debt liabilities inside and outside Palestine, and
civil liabilities. The statements shall be filed with the Constitutional Court.
Article (165) Court sessions shall be public, unless the court decides they shall be
secret for reasons
ƒ related to public order or morals
ƒ or by agreement of the court upon the request of the litigants.
In all circumstances, sentences shall be pronounced in a public hearing.
Article (166) Judicial judgments shall be issued, pronounced and executed in the
name of the people in accordance with the law.
Article (167) Litigation procedures shall be regulated by law so as to guarantee justice
and expeditious decisions in cases.
Article (168) Judges are independent. There shall be no authority over them in their
judicial duties except the law and their conscience, and they shall not be removed.

[66] Nathan j. Brown]

The law shall regulate the terms of the end of their duties and disciplinary questioning
of judges before the Supreme Council for the Judiciary in cases defined by law
without infringement on their independence in performing their duties. It is not
permitted for anyone to intervene in the course of justce or to delay the
implementation of judicial judgments. Intervention in the course of justice or
delaying implementation of judicial judgments shall be considered a crime punishable
by law, and such cases arising shall have no statute of limitation.
Under the PNA, officials (including, on one occasion, the entire cabinet)
have refused to implement court decisions, especially related to the
release of those extralegally detained. The language of this article would
seem not simply to ban such behavior but to criminalize it.
Article (169) The terms of appointment, transfer, seconding, promotion, and
regulation of affairs of the judges shall be defined by a law. It shall not be permitted
to combine the judicial profession with any other profession, membership in the
Representative Council, or membership in political parties. A judge shall not be
permitted, while being entrusted with the judicial profession, to bear any citizenship
other than Palestinian citizenship.
This article may ban a practice that some have claimed is a subtle
infringement on judicial independence. In some Arab countries (such as
Egypt, which enjoys a reputation for a greater degree of judicial
independence than is the norm in the Arab world), judges are seconded to
non-judicial work by the Ministry of Justice. Because such employment is
sometimes preferred to judicial work, ministries are often charged with
doling out such opportunities to favorites. This article bars judges from
engaging in nonjudicial work.
Article (170) A court of cassation shall be constructed with jurisdiction over appeals
in criminal and civil matters. The method of its formation, jurisdiction and
operational procedures shall be defined by law.
West Bank and Gaza courts have had only a single level of appeal. In the
West Bank prior to 1967, it was possible to appeal to the Court of
Cassation in Amman, but this route was cut off as a result of the Israeli
occupation.
Judicial reformers have sought to create a court of cassation since the
PNA was constructed for two reasons. First, it would constitute an
important marker of the completeness of the Palestinian judicial system.
Second, it would be a tool in unifying the application of Palestinian law in
the West Bank and Gaza (legal communities in the two areas have
sometimes acted as rivals since 1994).

The Draft Constitution of the Palestinian State: Translation and Commentary [67]

The PNA has moved recently to construct a court of cassation in
accordance with the judicial laws it has passed, but the conditions of the
second intifada have not allowed the courts to function fully.
Article (171) A high court of justice shall be established with jurisdiction to decide
administrative disputes and disciplinary cases as they are defined by its establishing
law, which shall regulate the bases of its operating, the terms of the appointment of
its judges and employees, and the procedures which are to be followed before it. The
construction of lower administrative courts is to be permitted by law.
The phrasing of the first sentence is complicated; I have tried to render it
both comprehensively and accurately without straying from the phrasing
of the Arabic. The term “high court” might be better translated as
“supreme court,” but the former usage in English has become more
common.
The provision for a high court draws on mandatory-era structures, in
which such a body hears cases against government action. A “High
Court” has functioned under the PNA, and counterparts exist in Israel
and Jordan. Generally, the High Court is the court of original jurisdiction
for administrative cases. It also often doubles as the supreme court of
appeals for non-administrative cases. Thus, if this article is implemented
in a way consistent with the history of such bodies, the High Court and
the Court of Cassation (referred to in the previous article) might be
virtually co-terminous bodies.
This is not the pattern followed in most Arab states: instead, the more
common method is to construct a separate hierarchy of administrative
courts on the French Conseil d’Etat system.
By allowing the establishment of lower administrative courts, however,
this article would leave open the possibility of a system that resembles
other Arab states more than Jordan and Israel. In such a system, the High
Court would not be the court of original jurisdiction but instead the
supreme court of appeals for administrative cases.
It is probably not of tremendous importance which structure is used, so
long as there is a judicial body that is independent, has clear jurisdiction
over such cases, and is authorized to take appropriate action. This article
should therefore be read in conjunction with Article 10 which addresses
the jurisdictional issues.
Article (172) A military court shall be established by law with jurisdiction to decide in
military cases. It may not try civilians or decide in any case outside the military
sphere.

[68] Nathan j. Brown]

Forbidding the military court to try civilians is a very strong step.
Banning exceptional courts (Article 159) does not bar the trial of civilians
in military courts, since the latter are standing bodies, generally
established by law.

Office of the Attorney General
From Article 173 to Article 177
Article (173) The Office of the Attorney General is one of the organs of the judicial
branch. It is part of the Ministry of Justice and governed by the law of the judicial
branch.
This article indicates that Palestine will follow the prevailing practice in
the majority of Arab states in establishing a “niyaba” system. The
“niyaba `amma,” translated here as the “Office of the Attorney General,”
is responsible for the investigation and prosecution of crimes. It is neither
a wholly judicial nor a wholly executive function. While its personnel are
generally drawn from the judiciary—and they consider themselves an
integral part of the judiciary—it generally is far more closely attached to
the Ministry of Justice than other judicial organs.
Article (174) An attorney general shall be appointed at the head of the Office of the
Attorney General, by nomination by the miniser of justice and decision of the
Council of Ministers. The law shall determine the competencies of the attorney
general, his assistants, and their duties.
The appointment of the attorney general has already been the subject of
much contention under the PNA.
The PNA has had four individuals fill the post. The first, Khalid al-Qidra,
was generally regarded as placing loyalty to the president on a higher level
than legal niceties. The second was sufficiently independent that he was
promoted to the position of “presidential advisor.” The third, who also
was respected in legal circles, was promoted to minister of justice,
allowing Khalid al-Qidra to return to the post through an irregular
appointment; he was replaced by an attorney general appointed through
regular legal mechanisms.
Mindful of the sensitivity of the position—and of the possibility for
executive domination—the PLC took strong measures to ensure that it
had a voice in the designation of the attorney general. It attempted to
write a PLC vote both into the Basic Law and the Law on the

The Draft Constitution of the Palestinian State: Translation and Commentary [69]

Independence of the Judiciary. It removed it from the second law under
the threat of presidential veto. The provision was removed from the Basic
Law without PLC action (through a highly dubious legal procedure that
went uncontested). In the version of the Basic Law finally published, the
president was to appoint the attorney general upon the nomination of the
Judicial Council.
This article places the appointment of the attorney general solely in the
hands of the executive branch. It is thus one of the few places where the
draft constitution retreats from the Basic Law on matters of executive
authority. The officials responsible for appointment—the minister of
justice and the cabinet—are politically responsible to parliament for their
actions in general, but do not need to seek parliamentary approval for this
appointment. In addition, the Judicial Council has no role in the
selection.
Article (175) The Office of the Attorney General shall undertake public cases in the
name of the people in accordance with the provisions of the law.
Article (176) The judicial police shall fall under the judicial authority and be subject
to its direct supervision.
Article (177) The Ministry of Justice shall be entrusted with the organization of
offices related to the administration of judicial facilities, without infringing on the
professional supervision of the Supreme Council for the Judiciary over the judiciary,
including the Office of the Attorney General.
This article suggests a division of labor: physical facilities are the
responsibility of the Ministry (and thus the executive); personnel fall
under the Supreme Council for the Judiciary (and thus the judiciary).
Responsibility for the regular budget for the courts is not specified in the
constitution but apparently left to legislation.

The Constitutional Court
From Article 178 to 184
Article (178) A Constitutional Court shall be established by virtue of the constitution
to exercise its jurisdiction independently in order to defend the legality of the work of
state institutions. It shall be composed of nine judges appointed by the head of state
by nomination from the Council of Ministers and approved by the Representative
Council. The Court shall set its internal regulation which will organize the procedures

[70] Nathan j. Brown]

of its work. The judges shall be appointed for one term of nine years that shall not be
renewed or extended.
The name of this court in earlier drafts was the “Supreme Constitutional
Court,” it may have lost the title of “supreme” in order to reduce
confusion with the two other supreme courts—the Court of Cassation and
the High Court.
Judicial review is surprisingly widespread in the Arab world, but only in a
few cases has it emerged as significant in practice. Many constitutional
courts and constitutional councils have had trouble establishing their
independence from other branches of government (especially the
executive). The Egyptian Supreme Constitutional Court has emerged as a
notable exception, largely due to a significant degree of autonomy that the
body has been given by law.
This draft would seem to allow for an autonomous court on a different
basis: rather than making it autonomous of other branches, the court is
formed with involvement of the executive and the legislative branches. In
Egypt, judges serve until retirement; in the Palestinian case they are given
extended terms that cannot be renewed (with renewable terms often seen
as a device to encourage judges to curry favors with their appointers).
The Court is allowed autonomy in its internal operations and procedures.
The resulting model resembles some European constitutional courts.
However, the draft Palestinian constitution does not advocate two
measures common in Europe to ensure that the constitutional court
reflects a broad, multiparty consensus rather than a parliamentary
majority: staggered terms and the requirement that parliament approve
nominees by a supermajority. The first could be accomplished by law but
the second may not be constitutional. The result may be an independent
Constitutional Court but also one that largely reflects the views of the
majority party.
Article (179) The judges of the Constitutional Court shall elect a president from
among their number for a term of three years. The president and of the Court and
the judges in the Constitutional Court shall swear the legal oath before discharging
their duties before a meeting of the president of the state, the speaker of the
Representative Council and the president of the Supreme Council for the Judiciary.
Article (180) A judge on the Constitutional Court shall not be permitted to assume
any other public employment or conduct any commercial, political or partisan
activities. If he belonged to a political party, he must resign before swearing the legal
oath.

The Draft Constitution of the Palestinian State: Translation and Commentary [71]

This article attempts to strengthen the independence of the court but it
does so in a way that might draw some of Palestine’s best legal minds to
under-employed positions. It is quite likely that the Constitutional Court
will receive very sensitive cases from the beginning, but it is not likely that
a large number of cases will be generated. Thus, holding a seat on the
Court will be prestigious but not overly taxing.
Article (181) Membership of a judge in the Constitutional Court shall terminate in
one of the following cases:
ƒ At the end of the judge’s term stipulated in the Constitution.
ƒ By voluntary resignation.
ƒ By loss of one of the conditions of assuming duties.
ƒ By judicial conviction of a felony
A successor shall be appointed within one month of the position becoming vacant.
Article (182) The Constitutional Court shall rule, pursuant to a request from the
president of the state, the prime minister, the speaker of the Representative Council,
ten members of the Representative Council, the Courts of Appeal, Cassation, or High
Justice, or the Attorney General in the following questions:

ƒ The constitutionality of laws before they are promulgated, if the request was
brought before it within 30 days from the referral of the law to the president of
the state to approve and promulgate it;
ƒ Disputes related to the constitutionality of laws, regulations, ordinances,
measures and decisions issued by the president or the council of ministers which
have the force of law.
ƒ Interpretation of constitutional texts in case of a dispute concerning the rights,
duties, and competences of the three authorities, and in case of a dispute over
jurisdiction between the president of the state and the prime minister;
ƒ Problems connected with the constitutionality of the platforms and activities of
political parties and associations, procedures to dissolve them or freeze their
activities, and the extent of conformity of these measures with the constitution.
ƒ The constitutionality of concluding international treaties, joining them, the
procedures of implementing them, and deciding the nullification of the law or

[72] Nathan j. Brown]

some of its articles should they conflict with the constitution or an international
treaty.
ƒ Any other jurisdictions assigned to it by this Constitution.
There are three features of this article that merit special attention. First, a
provision in an earlier draft to allow individuals to resort directly to the
Court if their rights have been violated has been removed. The
effectiveness of the Court to protect individuals thus depends on another
court agreeing to refer a case to the Constitutional Court. While this is not
unusual (direct access by individuals to constitutional courts is sometimes
allowed but is more often limited), in some Arab countries constitutional
courts have sometimes found other courts reluctant to refer cases.
Second, the Court is also assigned the task of resolving disputes between
the president and the prime minister. Some confusion over their
relationship is virtually certain given, though it is not inevitable that either
would resort to the Court to resolve a dispute. However, placing the
Court as the ultimate arbiter would probably diminish the possibility of
disputes being solved by unilateral actions.
Third, the article anticipates problems with political parties and
associations and assigns to the Court, rather than any organ of the
executive, the authority to decide cases involving measures taken against
them. Given the realities of Palestinian politics, this article may become
relevant sooner rather than later.
Article (183) The Constitutional Court shall render void an unconstitutional law,
regulation, ordinance or procedure, or end its effectiveness, in accordance with the
conditions and terms that the law organizing its construction defines.

Article (184) The decisions of the Constitutional Court shall be final and may not be
appealed in any manner. They are binding on all public authorities and natural and
legal persons.
Chapter Four: Concluding Provisions

From Article 185 to Article 190
Article (185) This constitution shall be called the “Constitution of the State of
Palestine.” It is based on the will of the Palestinian people. The Palestine National
Council of the Palestine Liberation Organization shall adopt this constitution before

The Draft Constitution of the Palestinian State: Translation and Commentary [73]

the establishment of the independent Palestinian state with sovereignty. In the case
that the Palestine National Council cannot meet, the Palestine Central Council shall
adopt this constitution. After the establishment of the state, and immediately after
the first general election, the elected Representative Council shall assume the
authority of establishing this constitution in its current form as it is adopted by the
Palestine National Council of the Palestine Liberation Organization or the Palestinian
Central Council, according to circumstances, and that by agreement of two-thirds of
all members of he Representative Council. And the Council shall decide, by a
majority of all of its members, to present the constitution to a general popular
referendum to approve it. If the majority of the participants in that referendum agree
to the constitution, it is considered effective from eh date of the announcement of
the result of the referendum.
One of the most difficult issues to resolve has been how to adopt the
constitution. This article posits three stages. The first is the adoption of
the current text (by the relevant PLO body). Implicit (but not explicit) is
that such adoption places the constitution in provisional effect upon
declaration of statehood in order to allow for elections. The second stage
is its approval by the newly-established Representative Council. The third
stage is popular referendum, after which the constitution is in effect.
There are three glaring omissions from this article. First, it is not clear if
any amendments can be made in the draft, and if so, how and by whom.
This question is especially relevant for the Representative Council. The
second omission is a provision for possible rejection at any of these
stages. The third (and related) omission is of any body (such as a
constituent assembly) to review the draft.
This procedure is likely to prove controversial among Palestinians, some
of whom may see it as an attempt to rush through the current draft.
In one sense, such criticisms would be fair: while the present committee
has produced a very carefully designed draft constitution that corrects
many of the flaws that emerged in the PNA, its work has largely been
confined to the circles of specialists. The procedures in this article
present various bodies with the opportunity to accept or reject the work
but not amend it.
In another sense, such criticism, even though valid, should not lead to
exclusive concentration on the procedures for adoption at the expense of
debating the draft itself. The Basic Law gained some legitimacy not
simply because of its content but because of the very public nature of the
drafting process. In other words, it may make sense to read, comment on,
and suggest changes in the current draft now. While there are no explicit

[74] Nathan j. Brown]

provisions for modifying the draft, standing aloof from the process will
likely lead to the entrenchment of current language.
Further, in drafting constitutions, the best can be the enemy of the good.
It has not been possible under prevailing conditions to draft the
constitution in a more systematic fashion. But abandoning the project for
that reason risks rendering permanent current (rather confused)
constitutional arrangements.
The reference in the third sentence to “the independent Palestinian state
with sovereignty” is presumably to distinguish the anticipated statehood
from the Palestinian states declared in 1948 in Gaza and 1988 in Algiers.
Article (186) The president of the state, the prime minister, or one-third of the
members of the Representative Council may request the procedure for amending the
constitution, by addition, deletion, or amendment of one or more articles. In all cases,
the principle of conducting the amendment must be passed by the agreement of a
majority of two-thirds of all members of the Representative Council. If the request is
rejected, it is not permitted to request the amendment of the constitution before one
year has passed since this rejection. The Representative Council shall discuss within
sixty days after agreeing on the request of the amendment, the clause or clauses that it
is desired be changed. If two-thirds of all members agree then the amendment is
considered accepted. The Representative Council may also, by a majority of all its
members, decide to present the amendment to general popular referendum to
approve it. If a majority of the participants in the referendum agree with the
amendment, it is considered effective from the date of the announcement of the
result of the referendum.
Article (187) Insofar as they do not conflict with the provisions of this constitution,
the laws, regulations, decisions, agreements, and treaties effective before the
beginning of this constitution remain in effect until they are changed or amended in
accordance with the law.
Implicitly, this marks a link between the PNA and the State of Palestine.
However, the article does not provide any guidance for deciding what is
actually in effect. In addition to the law produced by the PNA, there is
also a body of PLO law and a large number of Israeli military orders that
have sometimes remained in effect under the PNA.
Article (188) The legislative authority shall undertake the preparation and approval
of the necessary draft laws to establish the legal and administrative structure to
implement the provisions of this constitution and its requirements and to establish
institutions which are stipulated, within a period at most six months from the date of
the issuing of the constitution.

The Draft Constitution of the Palestinian State: Translation and Commentary [75]

This six-month deadline is very ambitious, even though much of the
necessary legislative work has been accomplished under the PNA. It is
probably inspired with the extreme tardiness of other Arab states (and
arguable under the Basic Law) to develop the laws necessary to give
constitutional provisions meaning.
The reference to the legislative authority rather than specifying the
Representative Council is probably vestigial language from previous drafts
in which the current Advisory Council was a full house of parliament.
Article (189) Official institutions shall continue to exercise their competencies
according to constitutional and legal rules that regulate them until the time that the
legislation required by the Constitution is promulgated.
Article (190) The Basic Law, promulgated on May 29, 2002, and anything contrary to
the provisions of this constitution are abolished.

Issued in the city of _____________ on ___ / ___ / 2003 A.D.
Corresponding to ___ / ___ / 1424 A.H.