A Constitution for a Nonstate: The False Hopes of Palestinian Constitutionalism, 1988–2007

This article sheds new light on the political history of legal-constitutional developments in Palestine in the fourteen years following the Oslo Accord. It examines the relationship between the unfolding social, political, and economic context in which they arose, on the one hand, and PA law-making and legal praxis, on the other. Focusing on the evolution of the Palestinian Basic Law and constitutional regime, the author argues that the “Palestinian constitutional process” was a major “battlefield” for the actors of the Palestinian-Israeli conflict. Thus, changes in the actors’ political strategies at various junctures were mirrored in legal-constitutional forms, specifically in the political structure of the PA. In that sense, the constitutional order can be understood as a sort of “metaphoric representation” of Palestinian politics, reflecting, among other things, the colonial nature of the Palestinian context that the Oslo process only rearticulated. This perspective is also essential for understanding the evolution of the Palestinian-Israeli conflict after Oslo.

THE ACADEMIC LITERATURE on Palestine has discussed the content and evolution of the Oslo accords at length, advancing our understanding of their social, political, and economic aspects. Nevertheless, the legal structures created by these accords have not yet been sufficiently considered. By focusing on constitutional-institutional developments in Palestine during the Oslo process, this article aims to shed new light on the socio-political conditions surrounding the establishment of the Palestinian Interim Self-Government Authority (PA) and the substantive impact it had on the Palestinian national movement, Palestinian social space, and ultimately, the Palestinian-Israeli conflict.

Because legal and institutional processes are historical products of the social and political context in which they arise, major social and political transformations can be understood through the evolution of the law. In other words, legal structures are social creations reflecting the roles played by the actors, the relative positions they occupied in various periods, and the strategies they deployed. Without meaning to overstate the importance of the legal domain, I argue that the Palestinian constitutional process¹ was a major battlefield for the actors of the Palestinian-Israeli conflict. By this, I simply mean that the fight for political domination—in Palestine, as elsewhere— is never confined to the streets, elite structures, or elections alone, but rather, enacted over multiple fields. The legal field is one of them. The changes in the actors?’ political strategies at various junctures have thus been translated into legal-constitutional form. In the course of this process, significant political dimensions—thenatureof the actors’ power relationships, their conception of the Oslo process, and the role that they attribute to the PA—were spelled out in legal-institutional terms and mirrored in the PA’s political structure. It is in this sense that the constitutional order can be understood as a sort of metaphorical representation of Palestinian politics.

In much of the existing literature on the Palestinian Basic Law, the constitution-drafting process has been made to appear incongruous or without identifiable rationale. In fact, from the beginning of the process in the early 1990s to the suspension of the constitutional regime in 2007, the constitutional structure envisioned went through four distinct stages, each representing a different political system. Thus, it evolved from a strong presidential regime, albeit maintaining the Palestine Liberation Organization (PLO) as the overall political authority (November 1993–December 1995), to a presidential system with some parliamentary aspects and an increasingly sidelined PLO role (January 1996–July 2000) to a semi-parliamentary regime in which important executive powers were transferred from the president to the prime minister and the cabinet (August 2000–November 2004), and finally to a gradual reconcentration of power in the president’s hands (December 2004–June 2007).

Each of the four stages of the constitutional process involved a historical turning point in the evolution of the Israeli-Palestinian conflict, implying changes in the actors’ relative positions within Palestinian political space and, consequently, changes in their political strategy. These changes were systematically echoed in shifts in the PA’s legal-institutional design, reflecting a gradual “constitutionalization” of Palestinian politics inside the occupied Palestinian territories (oPt). With the PA as the major Palestinian political forum, the legal and political forms of the new institutions became central to Palestinian political battles. Specifically, Palestinian national expectations, the evolution and outcome of the “indirect rule” regime that Israel sought to establish, and the international community’s interest in settling the conflict according to the “two-state solution” framework, all depended greatly on the legal form that the new authority would take. Thus, the constitutional structure of the PA, at the center of the process, quickly became an arena of negotiation and battle. For instance, when during Oslo, Palestinian and Israeli negotiators diverged on the name of the new authority (Palestinian Authority or Palestinian National Authority), on the title of its head (president or chairman), on the designation of its legislative body (parliament or council), or on the jurisdictional power of the PA, they knew that they were not just struggling for symbolic markers, but over the very articulation of a new set of power relations.

Deconstructing the Palestinian Constitutional Process

The seeming incongruity of the Palestinian constitution-drafting process, as depicted in much of the academic literature, stems not from the process itself, but rather from the readings imposed upon it. These tend to approach constitution-making in the Palestinian context in one of two ways: either it is examined in light of a set of normative principles (i.e., separation of power, rule of law, sovereignty) to which the text should respond; or, it is regarded as part of a political consensus intended to lead Palestinians from occupation to democracy. From the perspective of the former approach, the drafting process appears unsuitable insofar as it contradicts the normative assumptions of good governance theory and is very often even regressive by such standards. The latter approach, on the other hand, exposes the gap between law and fact—in other words, between formal democratization and authoritarian reality, such that the normative system is held responsible for the failure to express or promote the alleged consensus for Palestinian democracy.

This last approach was the case, for example, in 2003, when the first amendments to the Basic Law were adopted for the purpose of “de-concentrating power and improving governmental performance,” a prevalent mantra in Palestine at the time. According to this paradigm, the gap between norm and fact was to be solved by a constitutional change, completely overlooking the social and political context in which the change was proposed. Not surprisingly, the reforms did not bridge the gap. Indeed, the specter of authoritarianism continued to hover over Palestinian politics until the collapse of the constitutional structures in 2007, and it dramatically increased with the division of the Palestinian government between the West Bank and the Gaza Strip thereafter.

Instead of using a normative perspective that is analytically misleading, this study will be undertaken empirically, through a historical deconstructive approach aimed at making explicit an alternative way in which the process can be understood. Rather than imposing a repertoire of rules as an interpretative grid, I focus on the issues that have decisively determined the actors’ strategies but have generally been ignored by previous works: namely, the colonial context in which the constitutional process took place, the nonstate character of the PA, the changes in the structures of power distribution in the Palestinian social space, and the different relative positions that the actors occupied in the four major periods of the constitutional process. From this perspective, what some analysts regard as the incongruousness of the process is no longer understood as institutional inadequacy requiring reform. Rather, systemic incongruousness is considered at the center of the law-making process—and it is seen, as the outcome of choices articulating the actors’ positions, strategies, and actions within the framework of a colonial conflict and its structured power relations.

Drafting a Constitution without a State

According to Eugene Cotran, a Palestinian-born British jurist and one of the framers of the early constitutional drafts, “the main issue to keep in mind to understand the constitutional drafting [process] is the fact that it was done in a situation of occupation.”² Indeed, the PA’s constitutional and institutional frame is the product of an ongoing colonial conflict rather than a system intended to mark its end. Consequently, the PA’s structures rearticulated the colonial power relationship, resulting in a regime of indirect rule that freed Israel from many of the costs of occupation and inhibited the coalescence of a Palestinian resistance capable of challenging the reconfigured colonial order. This is not to suggest that Palestinian institutional and legal processes can be causally attributed exclusively to colonial forces, but rather that they provide the context within which such processes become intelligible. Within this context, it is clear that the PA regime has tended to reproduce certain colonial patterns: Palestinian nonsovereign status, authoritarian forms of domination, and the division of the colonized/occupied population into social groups with different legal statuses and often antagonistic interests.

The first of these features, the nonsovereign status of the PLO, was reproduced in the nonstate character of the PA,³ and was the primary factor shaping the political field within which the constitution-drafting process took place. The Basic Law was drafted by and for a nonstate, the PA, and was to be applied during an interim period of five years (1994–99). Its task was to regulate the functioning of a provisional authority that lacked the features normally belonging to modern states. Without the attributes of sovereignty, and in a position of extreme political and economic dependency vis-à-vis external actors, the PA was prey to different influences regarding its institutional design and especially its constitutional evolution. On the one hand, the traits of the PLO as the leadership for a national armed liberation movement strongly contributed to the molding of the constitutional process. On the other hand, the nonstate nature of the PA allowed significant interference by external actors, namely, the occupying power and the donor countries.

To understand the seemingly incongruous Palestinian constitutional process as an intelligible sequence, it is thus necessary to conceive of it as part of a changeable framework of interaction between these domestic and international actors. These actors exerted varying influences on political and constitutional processes orienting them in multiple, and often contradictory, directions. A more detailed examination of the context and phases of the constitutional process, as laid out below, illuminates these dynamics.