Navigating Uncertainty: Reforming Palestinian Institutions Through Constitutional Reform Amid War

Amid ongoing war, where the borders of the 1967 Palestinian state continue to shrink due to Israeli policies, discussing Palestinian institutions might seem at first an out-of-place topic. However, restructuring the Palestinian Authority (PA) institutions and internal arrangements is crucial despite the demands of international actors. Working on an interim constitutional document might be an internal discussion that Palestinians could consider to address governance complexities and unite political factions. The prospects for PA reform seem mixed at best, but a constitutional discussion should not be confined to short-term reactions to PA reform. This strategy aims to mobilize grassroots movements and involve the younger generation in shaping Palestine's future, shifting the focus from individual leaders to developing robust institutions with solid constitutional foundations - writes Sanaa Alsarghali

As the war persists, Palestinians in Gaza and the West Bank face unprecedented challenges in defending their existence and identity. Amidst these dire circumstances, it may seem peculiar to discuss strengthening Palestinian institutions through constitutional reform. However, as international discourse increasingly recognizes the notion of a Palestinian state, the two-state solution, once seen as the path to peace and sustainability, now appears more illusory than ever. Thus, this discussion becomes essential, especially in light of the current crisis facing the Palestinian Authority (PA), which seems on the brink of collapse – a situation long foreseen but now intensified by Israeli revenue cuts and the war's devastating impact on the economy.

This piece aims to analyze how Palestinian institutions should be restructured and strengthened, assuming the PA survives this tumultuous period with renewed financial support from the United States (US), United Kingdom and other international donors. The reflection considers the importance of developing state institutions rather than the PA merely functioning as an interim government in the West Bank only. Any constitutional reform discussed as a tool for institutional enhancement must be contextualized within the realities of Israeli occupation, war, and the lack of sovereignty.

Institutions for a Non-State: The Two-State Solution?

Governance and sovereignty within the Palestinian context are exceedingly complex. Initially, the Palestine Liberation Organization (PLO) was established to represent all Palestinians. The creation of the PA through the Oslo Accords added another layer to this governance framework, exemplifying a model of “nested sovereignty”: localized sovereignties operating within larger ones, each exerting control in their respective areas. This is evident in the PA's administration in the West Bank and Hamas’s governance in Gaza, both constrained by external border controls, particularly by Israel and Egypt in Gaza's case. This form of governance has hindered genuine state-building. In retrospect, the Accords served more as a survival mechanism for the PLO, which was trapped at the time after the collapse of the Soviet Union, and as a security framework for Israel, rather than a pathway to statehood.

Since the Oslo Accords of the mid-1990s, the functioning of PA institutions was not the major focus of the international community; however, since October 7th, US officials have requested that PA reform mainly its institutions and have advocated for the two-state solution as a step towards preparing Palestinians for the “Day After”. But this has not gone as far as recognizing Palestinian statehood, since in April 2024, the US, long positioned as the guardian of the two-state solution, vetoed a United Nations Security Council resolution aimed at recognizing a Palestinian state.

Throughout past peace negotiations, Israel has worked to establish a one-state reality, fundamentally altering the landscape and complicating the creation of a Palestinian state within the 1967 borders. The extensive building of settlements, frequent military actions, and the pervasive network of checkpoints in the West Bank exert significant control over Palestinians’ lives. In this reality, Palestinians have been segmented and categorized by their identification cards, creating a hierarchy among different groups with different color-coded IDs: restrictive green IDs for Palestinians in Gaza and the West Bank and relatively freer blue IDs (now residence permits) for East Jerusalem Palestinians. Despite these differences, all Palestinians share a common plight of limitations and deprivation. Joint leadership post-war implies a unified identification system and leadership, but questions remain about the capability of such leadership to govern a truly unified Palestinian state and the constitutional basis needed to achieve this unity.

The Basic Dilemma

Many of the institutions built since the Oslo Accords have been personalized, with PLO officials holding positions in the PA, blurring distinctions between the two. Within this complex reality, PA institutions were never intended to represent a state, a fact evident in the constitutional framework of the PA itself. The PA’s constitutional document, known as the Basic Law, was drafted by the first Palestinian legislature, the Palestinian Legislative Council, in 1997. It was intended as a temporary document for a transitional period supposed to end in 1999. President Arafat initially opposed a constitutional document limited to the PA's jurisdiction, fearing it did not represent all Palestinians, but the document was finally approved by President Arafat in 2002 following the second uprising (Intifada). At the time, the Basic Law was considered one of the most liberal and well-crafted documents in the Arab region. However, its minor quirks, coupled with the political environment surrounding its drafting, have caused continuous issues.

The Basic Law originally designed a parliamentary system of governance according to Article (5). However, it was presidential in practice, and international pressure intervened to change the system into a semi-presidential one. This change was not driven by domestic demands but by a confluence of domestic and international forces targeting a specific leader rather than a well-formed plan for political reform. Indeed, in 2003, the Road Map Peace Agreement imposed a prime ministerial role, leading to the appointment of Mr. Mahmoud Abbas, which required a Basic Law amendment from the Palestinian Legislative Council in 2003.

The controversial adoption of the semi-presidential system in Palestine raised the question of how constitutional amendments can be used to control certain institutions within the PA framework. This system, originating from the Weimar Republic and later the French Fifth Republic, features a popularly elected head of state and an appointed head of government accountable to the legislature, in contrast to purely parliamentary or presidential models. The distinguishing feature is that the executive authority must be split between these two heads, each with its own power and legitimacy. The implementation of this system of government has led to significant political challenges, some due to the particular design and others due to the basic nature of semi-presidentialism.

The aim of empowering a Prime Minister at the time was to mitigate the influence of then-President Yasser Arafat. This hastily adopted change, without adequate study of the amendments in the Basic Law, resulted in ambiguities and tensions between the President and the appointed Prime Minister (Mahmoud Abbas) at the time, undermining the government's functioning. Designed for Arafat as President and Abbas as Prime Minister, the system quickly outlived their tenure, with Abbas becoming President after President Arafat’s death in 2005. The instability intensified following the 2006 elections, which saw Hamas’s victory and the appointment of a Prime Minister from a party different from the President's Fatah party. The subsequent rejection of Hamas by the Israeli government and the international community led to an internal political schism. President Abbas declared a state of emergency and dismissed the Palestinian government led by Hamas leader Ismael Haniyeh after six days of faction fighting and Hamas’s military coup that took over Gaza in 2007. This left Palestine in a prolonged state of political suspension, without an active legislative council and a President resorting to presidential decrees for governance in the West Bank.

In 2016, President Abbas established the first Palestinian Supreme Constitutional Court, granting it powers to review legislation. This decision has been controversial due to the tendency of constitutional courts in the region to become extensions of the executive, and its creation at such a time raised concerns about its independence. A significant ruling came on 22 December 2018, when the Court dissolved the Palestinian Legislative Council and called for legislative elections. This decision followed an application by the Minister of Justice, seeking clarification on whether the Palestinian Legislative Council was still active and if its members were entitled to salaries. The Court ruled that the Palestinian Legislative Council's prolonged absence meant it had lost its legislative authority, and the relevant Basic Law articles were no longer applicable, thus negating the need for remuneration to its members.

This decision is significant as the Basic Law does not grant the President or the Court the right to dissolve the Palestinian Legislative Council under any circumstances. The Court was compelled into this ruling due to the exceptional political situation and the unique feature of the Basic Law that restricts the President from dissolving the Palestinian Legislative Council – a power typically found in most semi-presidential systems. This limitation on presidential power was part of the Basic Law's initial design, intended as a temporary document for a transitional period but lasting until today. The drafting process of the Basic Law resulted from a political compromise, granting the Palestinian Legislative Council the ability to review the President’s loss of legal capacity but preventing the President from dissolving the Palestinian Legislative Council.

Despite the Court's decision to dissolve the Palestinian Legislative Council and initiate an election process, Palestine's constitutional crisis remains unresolved, and democratization efforts have stalled . . .

Despite the Court's decision to dissolve the Palestinian Legislative Council and initiate an election process, Palestine's constitutional crisis remains unresolved, and democratization efforts have stalled. Elections, scheduled for six months after the Palestinian Legislative Council's dissolution, have not been held. Political analysts suggest this is due to a lack of political will, as the popularity of the dominant parties, Fatah and Hamas, has declined, and their re-election is uncertain. President Abbas announced that the elections would be indefinitely delayed, explaining the delay by citing Israel's restrictions on the participation of East Jerusalem Palestinians in the elections, as excluding East Jerusalem participation in the elections would have significant political implications which is considered unacceptable.

Thus, the PA structure remained in the West Bank, managed by a cabinet headed by a Prime Minister and a President, where the President would issue decrees without an active legislative council. During this period, the US seemed unconcerned about pushing for reform. Even US-backed efforts for PA reform during the war focused on a solution used twenty years ago to limit Arafat's power: empowering a Prime Minister. This requested reform took place in March 2024. Such reform might not seem enough to the Palestinians themselves, as certain requests, such as presidential and legislative elections, will have to wait due to the war. This delay might provide an opportunity to address other issues, such as how internally joint leadership for the West Bank and Gaza can be achieved, and whether new elections will be based on the Basic Law or if a new constitutional framework is necessary.

The Catch of Constitutional Drafting

The idea of establishing constitutional principles as the basis for future elections was discussed even before the war. However, efforts to draft a constitution or enact reforms in Palestine often seem more performative than genuine, with leadership invoking these processes without any real intent to implement them. Various drafts have been created, but the main question remains how such documents can effectively address the relationship between the PLO, the PA, and a future state that currently exists only on paper and with borders shrinking daily due to Israeli actions. This is difficult to address, as the PLO, despite its waning institutions in favor of the PA over the past thirty years, enjoys international status and can represent Palestinians wherever they are. This is unlike the state-to-be, and unlike the PA which is limited to the West Bank and, even there, cannot practice full sovereignty. Therefore, the PLO remains a vital umbrella for Palestinians wherever they are, especially as long as the state is not fully established. In this context, reforming PA institutions at the moment seems the most practical step for the West Bank and Gaza taking into consideration the limitations mentioned.

The latest significant effort was a draft constitution completed in 2016. This draft gained attention in 2019 when it was reintroduced into academic discussions and a civic constitutional awareness campaign led by academics and civil society organizations. The campaign aimed to encourage public participation, especially among women and young Palestinians, with hopes of a referendum to pave the way for elections on a new democratic basis and achieve reconciliation through this process. Despite these efforts, the draft lacked participation from Hamas, rendering its use as a reconciliation tool impossible. Consequently, the effort to discuss the draft was more educational than political, highlighting the tendency for constitutional discussions in Palestine to remain more theoretical than practical.

What Can Be Done?

For any future governmental structure for the "Day After", it is important not to revert to the “nested sovereignty” on which the current PA structure is based. Maintaining the current structure would likely hinder genuine reform, making the PA merely a temporary arrangement rather than a pathway to statehood. Another critical aspect is the future of PA leadership during and after the war and how succession will unfold.

For Israel, maintaining the pre-war status quo and not endorsing elections meant using division as a strategy to further its annexation objectives. Now, with the war in Gaza, it is evident that the intention has been to relocate the Palestinians from Gaza to Sinai, with the West Bankers potentially next. Another strategy has been to ensure the divide between the West Bank and Gaza, favoring local governance in each city, resembling a governor's role rather than a unified PA post-Abbas presidency. It is crucial for Palestinians themselves to contest these plans and determine their future leadership not based on October 2023 but on the past thirty years. Thus, it might be time to consider alternatives beyond the confines of political groups or factional interests.

Even if elections are forthcoming, the Basic Law should not be the basis for the next stage, as the balance of power between its institutions needs restructuring.

Caution is recommended in calling for immediate elections and retaining the dual executive system for the forthcoming phase. However, Palestinians must make such decisions autonomously, opposing external impositions while striving to address domestic disparities. Even if elections are forthcoming, the Basic Law should not be the basis for the next stage, as the balance of power between its institutions needs restructuring. A suggestion would be to create an interim constitutional document that can serve as a tool for paving the way until a better structure is in place. The fear, of course, is that an interim constitution might become permanent, but it might be a necessary step since it will not have to address the major dilemma of the “three-body problem” of the PLO, PA, and the state just yet. Ideally, the process of creating this document could serve as a reconciliation tool between Palestinian factions. It should involve all political parties, including Hamas, which cannot be excluded as it is part of the political fabric. While Hamas might not desire to govern again, excluding it would likely ensure the failure of the entire process. Such an interim constitution might involve international support or oversight, depending on the level of backing for establishing a future Palestinian state. The question remains whether Palestinians themselves would be willing to proceed with this idea, which the current leadership might not yet endorse.

For the internal structure within the interim document, if a dual executive system is retained, it must be better structured to avoid political deadlock. This issue was evident in various governments, particularly during Haniyeh’s tenure as previously mentioned. Each Prime Minister, despite sharing mostly the same political ideology, either clashed with the President or had to resign due to unclear jurisdiction in the constitutional document.

For the interim constitution to pave the way for a better future, more actors should be involved. This would include educational campaigns for constitutional awareness, involving grassroots movements, and engaging the younger generation in the debate about the future of Palestine. Listening to their vision and facilitating public debate is crucial. This approach would promote post-war leadership that extends beyond elite circles to the wider Palestinian community. If the above were achieved, the new stage might challenge the status quo in a democratizing way, shifting the focus from individual leaders to the development of robust Palestinian institutions backed by proper constitutional arrangements.

Sanaa Alsarghali is Associate Professor of Constitutional Law, An-Najah National University, Palestine.

The idea of an interim constitution was discussed previously by Nathan J. Brown and Sanaa Alsarghali in "Why an Interim Constitution Could Help Palestine: The Domestic and International Payoffs", Carnegie Endowment for International Peace, available at https://carnegieendowment.org/2024/04/08/why-interim-constitution-could-help-palestine-domestic-and-international-payoffs-pub-92134

♦ ♦ ♦ 

Suggested citation: Sanaa Alsarghali, ‘Navigating Uncertainty: Reforming Palestinian Institutions Through Constitutional Reform Amid War’, ConstitutionNet, International IDEA, 12 July 2024, https://constitutionnet.org/news/voices/navigating-uncertainty-reforming-palestinian-institutions

Click here for updates on constitutional developments in Palestine.