Palestinian Constitutional Structure

This concept describes the the institutions, founding documents and division of powers between the different branches of the PLO, the PA, and the future Palestinian state.

Definition

The Concept of Palestinian Constitutional Structure refers to the institutions, founding documents and division of powers between the executive and legislative branches1of the PLO, the Palestinian Authority (PA), and the future Palestinian State. In the context of Israeli-Palestinian relations, this concept is limited to the following: 2

  • Founding Documents – The scope and status of the founding documents of the PLO (Palestinian National Charter), the PA (Basic Law and the Interim Agreement (9/95)) and the future Palestinian State (the Palestinian Draft Constitution).
  • Status of the Ra'ees – The status and authority of the Chairman of the PLO, the Chairman of the PA and the Ra'ees of the Palestinian State (See Palestinian Prime Minister and President of the Palestinian State).
  • Executive Branch – The status and authority of the executive branches of the PLO (the Executive Committee), the PA (Palestinian Cabinet) and the future Palestinian State (Council of Ministers).
  • Legislative Branch – The status and authority of the legislative branches of the PLO (Palestinian National Council; hereinafter PNC), the PA (Palestinian Legislative Council; hereinafter PLC) and of the future Palestinian State (Representative Council).
  • Palestinian Electoral System – The definition of who is a "Palestinian" and the subsequent right to vote for and be elected to the office of the Ra'ees and the legislative and executive branches of the PLO, PA and the Palestinian State.

Relevance

The concept of the Palestinian constitutional structure serves as an important backdrop for future Israeli-Palestinian relations primarily because of:

Issue of Palestinian Representation – This concept grapples with questions such as:

  • Who do the Palestinian governing bodies such as the PLO or the PA represent?
  • Who represents the Palestinian Authority?
  • Who will represent the Palestinian state during and following the establishment of a Palestinian State with Provisional Borders (hereinafter PSPB) in the 2nd Phase of the Roadmap?

Issue of Palestinian Right of Self-Determination – This concept raises the issue of whether the Right of Self-Determination of the Palestinian people will be fully realized with the establishment of a Palestinian State.

Issue of Political-Legal Status of Israeli-Arabs – Israeli-Arabs are residents and citizens of the State of Israel. Many of them view themselves as Palestinians and may be viewed as such on the Palestinian side as well. This concept deals with issues that emanate from this reality such as dual-citizenship, passport ownership or possible claims by the Palestinian state to represent Israeli-Arabs.

The imminence of the issue of the Palestinian constitutional structure stems from its inclusion in the Roadmap (4/03), which calls for a quick confirmation of a Palestinian Constitution before the establishment of a PSPB and subsequently a Permanent Status Agreement.3

Background

The evolution of the Palestinian constitutional structure can be divided into four stages:

4 Stages PL Constitutional Structure

Stage 1 – 1974-94/95 - PLO

The status of the PLO as The Sole legitimate Representative of the Palestinian People was affirmed at the Rabbat Summit (10/74), and by UN General Assembly Resolution 3237, which bestowed upon the PLO the status of observer (11/74). It was further reinforced by the decision of Jordan to withdraw its claim for the West Bank (8/88) (see the Jordanian Option) and recognized by Israel and the USA following the Exchange of Letters Between PM Rabin and PLO Chairman Arafat, which was attached to the Declaration of Principles (9/93). 4

During this period, the Palestinian constitutional structure was synonymous with that of the PLO. The PLO's Palestinian National Charter was the constitutional document of the Palestinian people; the PLO's Executive Committee and PNC were the Palestinian executive and legislative branches (respectively) and the Chairman of the PLO was the Palestinian leader and so forth.

Stage 2 – 1994/95 – 2nd Phase of the Roadmap - PLO and PA

The Gaza-Jericho Agreement (5/94) and Interim Agreement (9/95) established the PA. The PA was designed to serve as an interim self-governing body representing the residents of the West Bank, the Gaza Strip, and, to a lesser extent East Jerusalem, during an Interim Period (5/94-5/99) not to exceed five years.

The Signed Agreements throughout the Oslo Process reinforced the status of the PLO as the sole legitimate representative of the Palestinian people, including residents of the PA. Hence, the PA had no formal powers of international representation, including vis-à-vis Israel.5

At the same time, the PA and the PLO have parallel and occasionally dependant constitutional bodies, though the PA is perceived as subordinate to the PLO. 6These bodies will constitute the constitutional infrastructure of the future Palestinian state, whose contemporary expression is embodied by the Palestinian Draft Constitution.

However, the center of power of Palestinian politics shifted from the PLO to the PA. De-facto, Israel's interface with the Palestinian side during the Oslo Process and, to a much greater extent, within the framework of the Roadmap, has been with the PA.

The implicit assumption during the Oslo Process was that upon the establishment of a Palestinian state following a Permanent Status Agreement, the PLO would dissolve and the Palestinian state would become the sole representative of its citizens and residents. (See Permanent Status of the Issue of Palestinian Representation). This mindset was reflected in the first Draft of the Palestinian Constitution (2001), which provides for the Palestinian state to succeed both the PLO and the PA.7

However, the failure to reach a Permanent Status Agreement, the Palestinian uprising, the Roadmap, the Disengagement Plan and the recent democratic election of Abu-Mazen as the Chairman of the PA have further eroded the status of the PLO vis-à-vis the PA, although this shift has not been felt on the constitutional level.

At the same time, during Stage 2 there has been an on-going Palestinian effort to prepare a draft Constitution for the future Palestinian State. 8 Hence, at this stage, the Palestinian constitutional structure consisted of the constitutional structure of the PLO, the PA and the future Palestinian state.

Stage 3 – 2nd Phase of the Roadmap – PLO and Palestinian State with Provisional Borders.

The Roadmap provides for the establishment of a PSPB in its 2nd Phase, prior to the conclusion of a Permanent Status Agreement, in its 3rd Phase (see "2nd Phase of the Roadmap" and 3rd Phase of the Roadmap respectively).

As issues such as the Issue of Palestinian Refugeeism will not be resolved during the 2nd Phase of the Roadmap, it is likely that the PLO will continue to exist after the establishment of a Palestinian State parallel to the PSPB, as follows:

  • PSPB – in parts of Gaza and the West Bank, which unlike the PA, will be acknowledged as a Sovereign State, and therefore will have full responsibility and authority for domestic, as well as a valid claim for authority and responsibility in foreign affairs; and
  • PLOa non-governmental organization, which may claim to represent the entire Palestinian people in the Diaspora (mainly refugees), in the Palestinian State and, possibly, even Israeli-Arabs.

The current draft of the Palestinian constitution (5/03), which assumes the establishment of a PSPB, leaves the distinction between the PLO and the PSPB vague.9 Hence, during Stage 3, the Palestinian constitutional structure will be comprised of the constitutional structures of the PSPB and of the PLO.

Stage 4 – Permanent Status - Palestinian State with Permanent Borders

In Permanent Status, the Palestinian constitutional structure should be synonymous with that of the Palestinian State.

In this context, one may assume that Israel's mindset with regard to the Oslo Process10 was that in Permanent Status:

  • The issue of the Right of self-determination of the entire Palestinian people would have been realized by the establishment of the Palestinian state.
  • The Issue of Representation – The government of the Palestinian state will be the sole legitimate representative of its citizens and residents. It will not have any extra-territorial powers of representation, particularly as the issue of Palestinian Refugeeism will have been addressed and the PLO will have been dissolved.

Based on the Palestinian Draft Constitution, the Palestinian mindset seems to be different, and the Palestinian state may claim to have extra-territorial powers of representation regarding "Palestinians" who reside outside of its territory, such as in Jordan or Israel.11

Founding Documents

PLO

The Palestinian National Charter – The constitutional document of the PLO, which defines the ideological platform for an armed national struggle to achieve Palestinian national goals. 12

The Basic Regulation – Bureaucratic-institutional regulations, which establish the rules, authority, duties and roles of the various bodies that comprise the PLO such as the PNC and the Executive Committee.

PA

The Interim Agreement (9/95) - was signed between the PLO and Israel in order to normalize bilateral relations during the Interim Period (5/94-99). Its articles provide the constitutional framework for the Palestinian Self-Governing Authority (the PA).13 The Interim Agreement is based on the Declaration of Principles (9/93) and on the Gaza-Jericho Agreement (5/94).

The Basic Law – This law serves as the provisional constitution of the PA. The law was affirmed by the PLC (10/97) but not ratified by Chairman Arafat until 5/02. Due to international pressure, the Basic Law was reintroduced with several amendments (2-3/03) that provided for the position of Prime Minister and for the transfer of some executive powers from Chairman Arafat.

Palestinian State

The Palestinian Draft Constitution – The 3rd draft of the Palestinian constitution (5/03) was promulgated by a special committee nominated by the PLO, and is set to become valid with the establishment of a Palestinian State. It was consolidated within the framework of the PLO not on the Basic Law. 14

1988 Declaration of Independence – The PNC declared the establishment of a Palestinian State at its meeting in Algiers (11/88). At the time, the declaration was purely symbolic due to the lack of territory under its control. Nevertheless, in the future the Declaration could be a pillar of the Palestinian constitutional structure in a Palestinian state.

Status of the Ra'ees

PLO - Chairman of the PLO.

Elected by the PNC and heads the Executive Committee of the PLO.

Whereas the PLO was recognized as the sole legitimate representative of the Palestinian people, the Chairman of the PLO is therefore recognized as the leader of the Palestinian People.

PA - Chairman of the Palestinian Authority

Elected by Palestinians in Gaza and the West Bank, including East Jerusalem.

The Chairman appoints the cabinet, 80% of which are members of the PLC.

Following the creation of the position of Prime Minister (2-3/03), certain powers were transferred from the Chairman's office to the PM.15

Nonetheless, the Chairman heads the biggest party and holds power. He is subject to elections, appoints the PM and has the authority to impeach him. 16

Following the Gaza-Jericho Agreement (9/94), which established the PA, the PLO Chairman, Yasser Arafat returned to the Gaza Strip (1/7/94) and four days later was sworn in as the Chairman of the PA. 17Since the Interim Period was concluded (5/99) without a Permanent Status Agreement, Arafat remained Chairman of the PA and Chairman of the PLO until his death (11/11/04).

The Palestinian State – President and Prime Minister

The Draft constitution (5/03) limits the role and influence of the President, in comparison to the PM, including restrictions on involvement in the Political process as follows:

  • The President of Palestine – A primarily symbolic position, elected for five years.18
  • The Prime Minister of Palestine – The head of the executive branch, responsible for assembling the government.19

Executive Branch

PLO

Executive Committee - Comprised of 18 members who are supposed to be elected by the PNC, but were appointed by leaders of various organizations comprising the PLO.

The Palestine Central Council is an androgynous body which can function as an enlarged Executive Committee in addition to having the capacity to serve as a limited legislative branch when the Central Council is unable to convene.

PA

Palestinian Cabinet - According to the Declaration of Principles, the Palestinian Cabinet is the executive branch of the PA but cannot conduct foreign affairs. The PLO is authorized to sign agreements with international entities on behalf of the PA.

Members are appointed by the Chairman of the PA, at least 80% of whom are members of the PLC and ministers must have a valid address in the PA.

The Palestinian State

Council of Ministers is the executive branch of the future Palestinian state. According to the Palestinian Draft Constitution, ministers are appointed by the PM. No more than 50% of them can be members of the "Representative Council".

Legislative Branch

PLO Palestinian National Council (PNC) – The Parliament-in-exile of the Palestinian People.20 Most members are appointed by the Executive Committee. According to the Basic Regulations of the PLO, members of PNC are to be directly elected by the Palestinian people. In practice, leaders of various organizations appoint their trustees as delegates.

The PNC has 669 delegates from militant organizations, labor unions, Palestine Liberation Army (PLA) and prominent individuals from communities throughout the Diaspora. There has never been an Israeli-Arab member of the PNC.21

PA

Palestinian Legislative Council (PLC) – The PLC was designed to represent the Palestinians in the West Bank, Gaza and East Jerusalem for an Interim Period not to exceed five years (5/94-5/99). Absent a Permanent Status Agreement, presidential decrees have extended its tenure. 22

Only Palestinians with an address in the West Bank, Gaza or East Jerusalem were permitted to vote or run for office from 16 districts.

According to the Interim Agreement, the PA is prohibited from legislating on issues that are to be settled during a Permanent Status Agreement.

Palestinian State

Representative Council – The legislative branch of the future Palestinian state to comprise of 150 members. 23A Council member must be "Palestinian" and is not permitted to hold another passport.

Advisory Council – The upper house of the PLC. The authorities and mandate of the Advisory Council are vague, although, in theory, its members will represent the Diaspora (See Map of the Palestinian People). Representatives are to be elected according to the legislation of their countries of residence.

In previous drafts, this body was referred to as The National Council suggesting that the Palestinian state will inherit the constitutional structure of the PNC (the legislative body of the PLO).24 The disconnect between the Council and the PLO renders the relationship between the PLO and the Palestinian State undefined. 25

The Palestinian Electoral System

PLO

Electoral System of the PLO – Based on the PLO's Basic Regulations, the entire Palestinian People will directly elect its delegates. The Chairman of the PLO is elected by the PNC and not through general elections.

PA

Electoral System of the PA – The official sources of the electoral system are:

The Interim Agreement (9/95) between Israel and the PLO – The electoral system is regulated in the Protocol Concerning Elections (Annex II).26 Only Palestinians with a valid address in the PA are allowed to vote; 27the Palestinian Independent Electoral Commission, commissioned by the PA, will be responsible for conducting the elections; 28·

The Electoral Law of the PA (7/12/95) – Was based on the Interim Agreement29 and regulates the elections within 16 districts.

The Basic Law – Affirmed by Arafat in 5/02, this law pertains to technical aspects of the elections.

The Palestinian State

Electoral System of the Palestinian State – The Palestinian Draft Constitution is ambiguous regarding its constituencies:

Right to vote is granted to "every Palestinian", as well as to "every citizen";

Right to be elected is granted to "Anyone who bears Palestinian nationality", or to "every citizen";

A candidate to the Representative Council must be of "Palestinian Nationality". 30

See diagram: The Palestinian Constitutional Structure



1 This term does not include the Judicial Branch.
2 See Diagram "The Palestinian Constitutional Structure", p. 16.
3 In the Bush Vision to the Middle East (6/02), President Bush called for the Palestinians to create a "new constitution" toward the resumption of the political process between Israel and the Palestinians that would lead to the establishment of a Palestinian State.
4 Ross Dennis, The Missing Peace, Farrar, Straus and Giroux; New York, pp. 114-121
5 Barry Rubin, The Transformation of Palestinian Politics, Harvard University Press, 1999, pp. 1-26.
6 The PLO’s superiority was expressed by:a. The PLO was the official Palestinian interlocutor with Israel throughout the Oslo Process, and was authorized (with several restrictions) to conduct foreign affairs on behalf of the PA, as determined by the Interim Agreement (article V);b. The PA was perceived as responsible for its residents, whereas the PLO was perceived as representative of the entire Palestinian People including the PA;c. The PA’s Basic Law, which serves as its interim constitution, explicitly states that the PLO is the sole legitimate representative of the Palestinians and the establishment of the Palestinian state will be realized under its leadership.
7 Nathan J. Brown, Palestinian Politics after the Oslo Accords, University of California Press, 2003, pp. 90-91.
8 For the third and most current version of the draft constitution, translated and annotated, see: Nathan Brown, The Third Draft Constitution for a Palestinian State: Translation and Commentary, Palestinian Center for Policy and Survey Research, October 2003.
9 Brown, Ibid
10 The Reut Institute "elicitated" this mindset from a draft of a potential Permanent Status Agreement in Sher Gilad, Just Beyond Reach: The Negotiations for Peace – 1999-2001, Tel-Aviv, Miskal, 2001, (appendix) pp. 421-423, articles 2.9, 2.10, 2.18, 2.20 (in Hebrew).
11 The draft Palestinian Constitution uses expressions such as "national", "people" or "citizens", which obscure its position regarding the Issue of Palestinian Representation. For example, on the definition of who is a Palestinian (Article 12) and regarding the right to vote and to be elected, Israeli-Arabs and Jordanians of Palestinian origin may fit the criteria for political rights in the future Palestinian State. In addition, Article 109 of the constitution establishes the Advisory Council, which would represent "the distribution of the Palestinian people in and outside Palestine.” (see Draft of the Palestinian Constitution (14/5/03) http://www.mopic.gov.ps/constitution/english%20constitution.asp).
12 Key points of the charter: Palestine is one indivisible territorial unit; Palestinian identity is inherited and never expires; Palestinians are Arabs who inhabited Palestine until 1948 or have subsequently been born to a Palestinian father; Liberation of Palestine will be achieved through armed struggle only; Jews don't have the Right of Self-Determination and therefore, Israel has no right to exist as a Jewish state; The PLO possesses the duty to liberate Palestine and to fulfill the Palestinian Right of Self-Determination.Another important constitutional document is the "Declaration of the Establishment of the Organization", See: Bechor Guy, Lexicon of the PLO, Tel-Aviv: Ministry of Defense, 1991, pp. 37-40 (Hebrew).
13 The Interim Agreement deals with security arrangements, elections for the PLC and the position of Chairman, transfer of authority, law, economics, and other mutual issues.
14 Brown, Ibid, pp.1-6.
15 ICG, Middle East Briefing, After Arafat? Challenges and Prospects, 23 December, 2004. pp. 4-8.
16 Brown, Ibid, pp.1-6.
17 Rubin, p.12.
18 Brown, Ibid, articles 123-124, pp.48-49.
19 Brown, Ibid, article 137, p.55.
20 The PNC has 3 official duties: (1) set the general policy of the PLO (2) encourage support for the Palestinian Struggle (3) elect the Executive Committee and supervise it.
21 Bechor, pp. 200-205.
22 Brown, Ibid, p.28.
23 Brown, Ibid. article 66, p.27.
24 Brown, Palestinian Politics, pp. 90-91.
25 Brown, Ibid, p.47.
26 See the Interim Agreement, article II "Elections"; Annex II "Protocol Concerning Elections";
27 See the Interim Agreement; Annex II "Protocol Concerning Elections"; article II "Right to Vote and the Electoral Register".
28 See the Interim Agreement; Annex II "Protocol Concerning Elections"; article III "Qualification and Nomination of Candidates";
29 The Palestinian Independent Electoral Commission presented Arafat with a symbolic vote from the Diaspora community, but he rejected it. See: Robinson E. Glenn, Building a Palestinian State – The Incomplete Revolution, Indiana University Press, 1997, p.196.
30 The Draft Constitution stipulates:a. Every Palestinian is entitled to the right of Palestinian citizenship.b. Every Palestinian refugee as a result of the 1948 war shall have the right to return the State of Palestine and bear its nationality.c. The Palestinian nationality shall be regulated by law to any one who acquired it prior to May 10, 1948 and their offspring. d. An "Advisory Council" shall be established with a goal of representing Palestinians in the Diaspora. e. The PLO possesses the authority to ratify the constitution before the establishment of a State. After the establishment of such a state, the Palestinian Parliament (Representative Council) is to give last ratification to the proposed draft. There is no reference in this draft constitution to the political status of the PLO after the establishment of a Palestinian State; See: Brown, Ibid, pp.1-6.

More Sources

Bechor Guy, Lexicon of the PLO, Tel-Aviv: Ministry of Defence, 1991 (Hebrew).

Brown Nathan J., Palestinian Politics after the Oslo Accords, University of California Press, 2003.

Brown Nathan, The Third Draft Constitution for a Palestinian State: Translation and Commentary, Palestinian Center for Policy and Survey Research, October 2003.

ICG, Middle East Briefing, After Arafat? Challenges and Prospects, 23 December, 2004.

Robinson E. Glenn, Building a Palestinian State – The Incomplete Revolution, Indiana University Press, 1997.

Ross Dennis, The Missing Peace, New York: Farrar, Straus and Giroux, 2004.

Rubin Barry, The Transformation of Palestinian Politics, Harvard University Press, 1999.