|Israel Resource Review
||24th April, 2003
Recipe for Terror:
Analysis of the Palestinian State Constitution
A. Why a Palestinian State Constitution
More than anything else, the Palestinian State Constitution represents the attempt to present to the world the face of a modern Palestinian state. The constitution is meant to present a hope that a dictatorship can turn into a democracy, that a regime built on terrorism can become peaceful, that a traditional society can embrace the tenets of modernity.
As a result, the European Union and the United States have focused on
the drafting of a Palestinian constitution that would reflect a Western view
of how a Palestinian state should look. Since 1997, Brussels and Washington
have been financing and advising the effort and urged for the introduction
of democracy, separation of powers and judicial independence as part of any
In 2002, Palestinian Authority Chairman Yasser Arafat signed the Basic
Law, regarded as interim constitution until the establishment of a
Palestinian state. The Basic Law contained 112 articles that calls for
regular presidential elections, and a separation of powers.
The Palestinian constitution is regarded as a key test of any
Palestinian commitment to democracy. President George Bush has stressed that
the United States wants to ensure Palestinian democracy before ensuring
statehood. For a long time, Bush's condition also included the dismissal of
Arafat, but Washington no longer stresses this element.
B. The History of a Palestinian Constitution
The attempts to draft a Palestinian constitution precede the 1993 Oslo
agreement with Israel and negotiations for a Palestinian state. In October
1948, months after the declaration of the Jewish state of Israel, the
Palestinians sought to assert their right to statehood. The
newly-established Palestinian National Council presented what it termed a
provisional constitution. The constitution was meant to establish an interim
parliamentary regime in the first step toward statehood.
Within three years, the Palestinian constitution was thrown into the
dustbin. By 1952, Egypt was in complete control over the Gaza Strip and
suppressed all signs of genuine Palestinian nationalism. Instead, Egypt
issued constitutional documents for the Gaza Strip in 1955 and 1962. Jordan,
which controlled the West Bank, issued a constitution in 1952. Both
constitutions limited any effective expression of Palestinian political
In 1988, the PNC declared Palestinian independence. The statement
pledged to establish a democratic government and draft a constitution.
Again, the PNC did little than focus on rhetoric. In 1993, however, Israel
and the PLO signed an agreement that recognized each other and began a
process that was seen as a march toward Palestinian statehood. Arafat
appointed Dr. Anis Al-Qassem to coordinate the efforts of a constitution and
the PLO's legal committee then ordered the drafting of the Basic Law, an
interim document meant to to govern the Palestinian Authority until a
permanent constitution was written.
PA Chairman Arafat did little if anything to promote the constitution
and refused to sign the Basic Law. The result was a vacuum in the
Palestinian legal framework. Palestinian courts were based on a patchwork of
Israeli, Egyptian and Jordanian law. In the end, the Basic Law was dismissed
as failing to meet international demands for reform.
In 1999, the PLO Executive Committee established several committees to
draft a constitution. The Arab League formed an advisory committee to both
help and supervise the effort. A year later, several drafts were circulated
but none of them was endorsed. In February 2001, Palestinians established
another constitutional committee.
C. Major Issues of a Constitution
All drafts of a constitution have sought to address four key issues.
They include system of government, rights and freedoms, the role of Islam
and the link with the Palestinian diaspora. PA International Cooperation
Minister Nabil Shaath, chairman of the constitution committee, said the
latest effort to complete a constitution has included more than 40 drafts. A
Western team, who included experts from Britain, Spain and the United
States, helped in the wording of the text. Officials expect the constitution
to be presented for final approval by July 2003.
II. The Constitution
A. Those Deserving of Thanks
The start of the document -- a third draft and presented on March 25,
2003 -- contains a list of people thanked by Shaath and the committee that
drafted the constitution. One would expect the appreciation and thanks to
first go to those who financed the effort and advised the committee. This
would have included the European Union, the United States, the State
Department and the foundations that provided funding. This does not appear.
Instead, the list of those thanked are the heads of Arab regimes friendly to
The list reads like a Who's Who of Arab despotism. Egyptian President
Hosni Mubarak leads the list. He is followed by Lebanese Prime Minister
Rafik Hariri, Saudi Foreign Minister Saud Al Faisal, Arab League
secretary-general Amr Mussa and his predecessor, Ismat Abdul Majid. Saudi
Arabia has been termed by the State Department as a country that does not
tolerate any freedom of religion apart from Islam. Egypt's human rights
record is one of the worst for a U.S. ally and has been consistently
criticized by Washington. Lebanon has been consumed by the Syrian occupation
and has destroyed any freedom of expression or human rights.
The reason for the thanks to the Arab regime leaders is that Arafat has
ensured that the constitution meets their approval. The Saudi-owned A-Sharq
Al Awsat daily said the constitution was sent to several Arab countries and
the responses were disappointing. The Arab regimes complained of the powers
of Arafat. But in response, Shaath and his committee said the Palestinian
draft is similar to that of Egypt, France and Syria. This explains the need
to seek approval from such an Arab regime as Syria, now regarded as the most
despotic in the Middle East.
B. The Preamble
The latest draft of the constitution does not contain a preamble that
praised jihad, or holy war. Israeli and Western officials said, however,
they have been presented with a draft that began "the Palestinians conducted
their legendary jihad against the colonialist forces of the old and new
world." The preamble also blames the Jews and the West for the Palestinian
problem, saying "the depth of the wound caused by the superpowers in their
handling of the Jewish problem and division of the Middle East, where the
Palestinians bore the burden of the arrangements made to reflect the balance
of power and the results of the first World War, to this very day." This
preamble does not appear neither in the latest Arabic or English versions.
C. The Nature of the State
The opening articles of the constitution focus on the nature of the
proposed Palestinian state. There is plenty of text but the details are
vague and the meaning is multiple. The main question is whether the
Palestinians seek to establish a state that will not threaten Israel. The
constitution leaves this question open.
"The State of Palestine is a sovereign, independent republic. Its
territory is an indivisible unit based upon its borders on the eve of June
4, 1967, without prejudice to the rights guaranteed by the international
resolutions relative to Palestine. All residents of this territory shall be
subject to Palestinian law exclusively."
In the Arabic version, the word "based" does not appear. This implies
that this is the final border. The discrepancy does not appear to be
coincidental. Palestinian officials and the PA-owned media have talked of a
range of versions for this clause. The Al Ayyam daily, owned by the PA, said
on January 22, 2003 that an alternative clause being considered did not mention
the 1967 borders. The London-based Al Hayat daily said on February 3, 2003 that
another proposal does not mention borders at all.
"Palestine is part of the Arab nation. The state of Palestine abides by
the charter of the League of Arab States. The Palestinian people are part of
the Arab and Islamic nations. Arab unity is a goal, the Palestinian people
hopes to achieve.
This clause is as ambivalent as it is threatening. Arab unity has been
cited as a goal for every act of Arab hostility, including the Iraqi
occupation of Kuwait in 1990. Does this mean that a Palestinian state will
seek to merge with Egypt and Jordan or Syria?
The link of a Palestinian constitution with the Arab League charter also
begs the question of what does this mean for the Palestinian commitment to
democracy and peace with Israel. The Arab League has never recognized Israel
or its right to sovereignty. How does the charter of the Arab League mesh
with any hope for Palestinian recognition of Israel?
"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."
This statement might be seen as benign if we were talking about most
emerging states. But given the PA record of terrorism, the mendacity
embedded in this "fact" is astounding. The PA has never fought Palestinian
terror. It does not abide by the UN charter and has shown no inkling to
become "peace-loving" or seek to resolve problems by peaceful means. Perhaps
the key is "resolution of international and regional problems by peaceful
means." The Israeli-Palestinian conflict is not seen in this context.
"Jerusalem is the capital of the state of Palestine and seat of its
The Palestinian draft does not define what it means by Jerusalem.
Neither the Arabic nor the English delineates the borders of the city, which
was Israel's capital before the 1967 war.
D. Islam and the State
The dichotomy of Islam and democracy is repeated throughout the
constitution. Will Palestine be an Islamic state or a democracy that
respects all? Some might argue that both can be achieved. But this argument
holds no weight given the state sponsorship of Saudi Arabia of Al Qaida,
Hamas and other Islamic groups -- all in the name of peaceful Islam. Today,
the adoption of state-sponsored Islam means the intention of an undemocratic
Arab regime to trample civil and human rights in the name of religion.
"Arabic and Islam are the official Palestinian language and religion.
Christianity and all other monotheistic religions shall be equally revered
and respected. The Constitution guarantees equality in rights and duties to
all citizens irrespective of their religious belief."
There is no mention of Judaism here. Instead, Christianity is referred
to although there are far more Jews than Christians in the West Bank and the
Gaza Strip. Does this mean Jews have no right to exist in these areas?
The status of Islam as the official religion does not conform with the
assertion that all religions are equal in the Palestinian state. Indeed,
some members of Shaath's committee have made the same assertion. Islam as
practiced in the Arab states that sponsored the constitution simply does not
recognize other religions. The PA has crushed non-Islamic religions while it
has supported Hamas's agenda. The PA has converted its radio and television
into instruments of Islamic holy war. PA television indoctrinates children
to hate Israelis as those who seek to destroy Islam and urges Muslim
children to destroy Jewish symbols.
"The principles of Islamic Sharia are a major source for legislation.
Civil and religious matters of the followers of monotheistic religions shall
be organized in accordance with their religious teachings and denominations
within the framework of law, while preserving the unity and independence of
the Palestinian people."
This completes contradicts Article 5. Sharia, especially as interpreted
by Arab regimes, dismisses and represses other religions. It also violates
human rights and demands supremacy of Muslims over non-Muslims. One can say
that Israel has a similar law. But the difference is that the Israeli
secular courts show no preference regarding religion while Sharia courts
clearly have. Article 7 is clearly a sop to Saudi Arabia and Hamas.
D. The Palestinian Political System
A major part of the constitution discusses the future Palestinian
political system. In truth, no political system can guarantee a
dictatorship. But a clear document can at least serve to rally democratic
forces. The Palestinian constitution
does little more than rehash platitudes in a way that can only remind one of
George Orwell's "1984," where truth was a lie and freedom meant slavery.
"The Palestinian political system shall be a parliamentarian
representative democracy based on political pluralism. The rights and
liberties of all citizens shall be respected, including the right to form
political parties and engage in political activity without discrimination on
the basis of political opinions, sex, or religion. The parties shall abide
principles of national sovereignty, democracy and peaceful transfer of
authority in accordance with the Constitution."
This is disingenous. Today, there is no political pluralism in
Palestinian society. All of the factions in the Palestinian Legislative
Council are wings of the PLO, each with its own militia. There is no place
in the PLC for peace activists and the article does not provide any immunity
from the executive branch and its security forces.
"Government shall be based on the principles of the rule of law and
justice. All authorities, agencies, departments, institutions and
individuals shall abide by the law."
This article appears redundant unless the background of Palestinian
government is understood. Simply put, the PA has flouted every law passed.
The next two articles also fail to address the problem of Arafat's
authoritarian rule. Instead, it simply ignores Arafat's one-man rule.
"All activities of the Palestinian public authorities shall, in normal
and exceptional circumstances, be subject to administrative, political,
legal and judicial review and control. There shall be no provision of law
which grants immunity to any administrative action or decision from judicial
supervision. The state shall be bound to compensate for damages resulting
from errors, and risks resulting from actions and procedures carried out by
state officials in the pursuit of
"The independence and immunity of the judiciary are necessary for the
protection of rights and liberties. No public or private individual shall be
immune from executing judicial rulings. Any act of contempt of the judiciary
shall be punishable by law."
The constitution does not acknowledge or even seek to resolve the
problem that Arafat, as any other Arab regime leader, is seen as above the
law. This has allowed the flouting of the law by those who speak or act for
Arafat. Had Arafat been ousted, then this would have been unnecessary. But
the constitution, as we will see later, continues to make Arafat the center
of Palestinian authority.
E. The Palestinian Right of Return
If there was any point the Palestinian could make in demonstrating its
peaceful intention, it would be the determination of the future of
Palestinian refugees and their ancestors. The PA claims that the number of
refugees and their descendants now exceed 7 million. Pressing for the return
of these people to what is now Israel guarantees the destruction of the
Jewish state. The constitution, however, supports the right of return for
Palestinians without any thought to the consequence for its Israeli neighbor
or of a peaceful Middle East.
"Palestinian nationality shall be regulated by law, without prejudice to
the rights of those who legally acquired it prior to May 10, 1948 or the
rights of the Palestinians residing in Palestine prior to this date, and who
were forced into exile or departed there from and denied return thereto.
This right passes on from fathers or mothers to their progenitor.
It neither disappears nor elapses unless voluntarily relinquished. A
Palestinian cannot be deprived of his nationality. The acquisition and
relinquishment of Palestinian nationality shall be regulated by law. The
rights and duties of
citizens with multiple nationalities shall be governed by law."
This is a change from the PLO covenant that says that a Palestinian is
someone who arrived in the British mandate until 1947. It also grants rights
to tens of thousands of Arab fighters who infiltrated the mandate on the eve
of the Israeli war of independence. It is not clear what the constitution
means by Palestinians who "legally acquire" Palestinian nationality. The
transfer of Palestinian nationality from mother and father is beyond the
nationality laws of any Arab state, which regards rights as stemming from
Indeed, the next clause reaffirms the Palestinian right of return. It
fits well with the preamble and other clauses that do not envision a
termination of the Israeli-Palestinian conflict and the emergence of a
peaceful Palestinian state.
"Palestinians who left 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. It is a permanent, inalienable, and
The state of Palestine shall strive to apply the legitimate right of return
of the Palestinian refugees to their homes, and to obtain compensation,
through negotiations, political, and legal channels in accordance with the
1948 United Nations General Assembly Resolution 194 and the principles of
Article 14 continues in this vein.
"Natural resources in Palestine are the property of the Palestinian
people who will exercise sovereignty over them. The state shall be obligated
to preserve natural resources and legally regulate their optimal
exploitation while safeguarding Palestinian religious and cultural heritage
and environmental needs. The protection and maintenance of antiquities and
historical sites is an official and social responsibility. It is prohibited
to tamper with or destroy them, and whoever violates, destroys, or illegally
sells them shall be punishable by law."
This is the basis for Palestinian claims over all water that stems from
the West Bank or that flows into the Gaza Strip. The article contains no
reference to cooperation with its neighbors regarding natural resources. In
other words, this article ensures the basis of future conflict.
F. Palestinian Equality
"Palestinians are equal before the law. They enjoy civil and political
rights and bear public duties without discrimination. The term Palestinian
or Citizen wherever it appears in the constitution refers to both, male
There is no reference to residents of Palestine. In other words, those
who are not citizens or regarded as Palestinians have no civil or political
rights. Article 20 also reaffirms the absence of basic rights for those who
are not deemed as Palestinian citizens.
"Human rights and liberties are binding and must be respected. The state
shall guarantee religious, civil, political, economic, social and cultural
rights and liberties to all citizens on the basis of equality and equal
Persons are not deprived of their legal competence, rights and basic
liberties for political reasons."
One can say that the first sentence provides a fig leaf to all in a
Palestinian state. But the first sentence affirms a general right while the
second sentence clearly limits this to citizens. The difference is
significant in countries such as Saudi Arabia, which has a huge expatriate
"A foreign political refugee who legally enjoys the right of asylum may
not be extradited. The extradition of ordinary foreign defendants shall be
governed by bilateral agreements or international conventions."
This clause sounds liberal at best and benign at worst except when you
realize that thousands of Al Qaida, Hizbullah and other terrorists are
seeking refuge in PA areas. Are they regarded as political refugees? After
all, Syria has been harboring hundreds of members of the Iraqi regime of
President Saddam Hussein on the pretext that they are political refugees.
"Freedom of religion and religious practice is guaranteed by the
Constitution. The state shall guarantee access to holy shrines that are
subject to its sovereignty. The state shall guarantee to followers of all
monotheistic religions the sanctity of their shrines in accordance with the
historic commitment of the Palestinian people and the international
commitments of Palestine."
The constitution constantly refers to rights limited to "followers of
all monotheistic religions." What does this mean and who decides whether a
religion is monotheistic. Is Judaism monotheistic or is it devil's worship
as Hamas claims? Then comes the kicker: the guarantee for freedom of access
is in "accordance with the historic commitment of the Palestinian people and
the international commitments of Palestine." Does this mean that if
Palestinians claim that Jewish presence in the Cave of the Patriarchs in
Hebron threatens sovereignty then that right of access must be denied.
"Freedom of thought shall be guaranteed. Individuals shall have the
right to express their opinions and publicize them in writing, speech, art,
or other means of expression within the provisions of the law. The law may
only apply minimal restrictions on the practice thereof so as to safeguard
the rights and liberties of others."
This article contains the restriction that completely nullifies freedom
of thought. It does not say that freedom of thought that attacks the rights
and liberties of others will not be tolerated. It talks of "minimal
restrictions." Indeed, the Arabic version does not have the last sentence.
Instead, it says that freedom of thought is guaranteed and includes respect
of the rights of others.
"The right to publish newspapers or other means of the media is
universal and guaranteed by the constitution. Financial sources for such
purposes shall be subject to legal control."
This article reflects both an expectation and a current reality.
Newspapers in the PA are and will financed from abroad. The PA has gotten
around this by ensuring that all of its daily newspapers are either owned
controlled by Arafat.
"Freedom of the press, including print, audio, and visual media, and
those working in the media, is guaranteed.
The media shall freely exercise its mission and express different opinions
within the framework of societys basic values, while preserving rights,
liberties and public duties in a manner consistent with the rule of law. The
media may not be subject to administrative censorship, hindrance, or
confiscation, except by court order in accordance with the law."
Again, the right of freedom for the press is undermined by an
unspecified proviso that the courts could stop freedom of the press. This is
an important point when Arafat has controlled the court system and simply
overruled any judge he felt like.
"The law shall regulate social security, disability and old age
pensions, support to families of martyrs, detainees, orphans, those injured
in the national struggle, and those requiring special care. The state shall
guarantee them- within its capabilities- education, health and social
security services and shall give them priority in employment opportunities
in accordance with the law."
This clause again guarantees that the Palestinian state will finance
terror. The clause could have said that the state will provide for those
injured in war or attack. Instead it talks of "martyrs" and "national
struggle." The only time this term is used is in reference to terrorist
attacks on Israel. Martyrs have been used to denote Palestinian suicide
attacks against Israel.
"The right to protest and strike shall be exercised within the limits of
Every Arab country has this clause and none of them allows for strikes.
What are the limits of strikes?
"Citizens shall have the right to assume public office, on the basis of
competence, merit and equal opportunity in accordance with the requirements
of the law."
Who will decide whether a candidate for public office is competent or
meritorous? In democracies, candidates are elected. In Iran, a regime
council screens candidates for competence?
"Basic rights and liberties may not be suspended. The law shall regulate
those rights and liberties that may be temporarily restricted in exceptional
circumstances in matters related to public security and national safety
purposes. The law shall penalize the arbitrary use of power and authority."
Exceptional circumstances is a term fraught with danger. The Palestinian
leadership have explained all sorts of injustice by invoking this term.
Egypt has maintained a state of emergency for more than 20 years. The
article merely sets up the option of dictatorship.
"The House of Representatives shall be composed of (150) individuals,
representing the Palestinian people. They shall be elected according to the
Constitution and election law. When running for candidacy to the House of
Representatives, the provisions stated in this Constitution and the election
law shall be observed. Candidates for the House of Representatives must be
This clause guarantees that minorities living in Palestinian state will
not be represented. It does not define a Palestinian.
As it turns out, a huge part of the constitution delves into details of the
House of Representatives and the president. This is usually not what the
constitution does. The English translation also calls the parliament "House
of Representatives," an apparent sop to the U.S.
G. The Role of Arafat
The presence of Arafat in the making of the constitution pervades
throughout. The United States might be pushing for the dismissal or
marginalization of Arafat. But the Palestinian constitution is meant to win
Arafat's approval. That means guaranteeing that Arafat will not lose an iota
of his power in a Palestinian state.
"The president shall submit a financial statement relative to him,
his/her spouse and minor children, detailing his movable or non-movable
property and cash asset debts or dues in Palestine and abroad. They will be
kept by the Constitutional Court."
Does this mean that Arafat's financial statement will not be released?
"The Speaker of the Council of Ministers, or the minister he appoints,
shall negotiate international treaties, and inform the President of the
State of the course of negotiations, which in turn have to be approved by
the Council of Ministers and endorsed by the President."
The Arabic version merely says "prime minister." Why the discrepancy?
What does "endorse by the president" mean? In the Arabic version it says
"certified or confirmed." The answer might be contained in the next clause.
"In addition to the Presidential prerogatives, the President enjoys the
- He heads, in exceptional cases, and during the State of Emergency, the
Council of Ministers
- He issues alone the decree for the nomination of the prime minister and
the decree accepting the resignation of the government or considering it
resigned. Other decisions and protocols have to be jointly signed by the
minister, and the minister or ministers concerned. The prime minister
co-signs with the president of the state decrees of law, decrees of
reevaluation of laws and decrees calling for exceptional meetings of the
House of Representatives.
- He addresses, when necessary, a non-debatable speech to the House of
- He forwards drafts of laws approved by the council of ministers to the
House of Representatives.
- He grants special pardons or reduction of sentences. Amnesty is by decree
- He heads official receptions and grants state decorations by decree.
This is the key to how the Palestinian constitution sees Arafat's
future. Arafat will continue to wield tremendous power and the constitution
ensures that he will continue to be a dictator. All he has to do is declare
a state of emergency.
"The president of the state is the supreme commander of the Palestinian
national security forces which is headed by a concerned minister."
This robs the prime minister of authority over the security forces.
"The president of the state, with the approval with the prime minister
and consultation with the Speaker of the House of Representative, may
declare a state of emergency if the security of the country is exposed to
danger of war or natural disaster or siege threatening the safety of the
society and continuity of operation of its constitutional institutions. The
emergency measures must be necessary to restore public order, or the orderly
functioning of the states authorities, or
confront disaster or siege, for a period not exceeding thirty days,
renewable by approval of two thirds of all the members of the House of
Representatives, with the exception of state of war. In all cases, any
declaration of a state of emergency must specify the purpose thereof, and
the region and time period covered thereby."
If the president can appoint a prime minister, then the latter's input
in the state of emergency is meaningless. Indeed, the constitution envisions
the prime minister as being an extension of the president.
Notice how much space is given to state of emergency. This reflects the
basis for what Arafat expects will take place immediately after state is
The Palestinian constitution cannot be divorced from two basic facts.
One is the historic use of terrorism and brutality by the Palestinian
leadership -- primarily against its own people. The other is that the
Palestinian leadership has not changed and Arafat is expected continue his
authoritarian rule. The constitution does not acknowlege or deal with this.
Instead, it deals with platitudes and remains disingenous throughout.
Indeed, the future of this and other drafts of the constitution can be
gleaned from Arafat's experience with the Basic Law. For five years, Arafat
rejected any guarantees of civil or human rights to his people and checks on
his authority. In 1998, Arafat sat with the PLC's Political Committee and
was asked point blank whether he would sign the Basic Law. PLC member Hussam
Khadr quoted Arafat as saying the following: 'You ask me to sign the Basic
Law? Then you must wait until my death, attend my funeral, and after they
lay me in my grave you can take my thumb, place it in ink, and sign the
Arafat signed the law in 2002 only to ensure his political survival amid
heavy pressure from the European Union and the United States. Nothing,
however, has changed in his regime and Arafat's interior minister, Hani Al
Hassan, said the constitution would not be signed.
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Palestinian State Constitution
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State Constitution in Arabic in PDF format.
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