The Constitution and the National Council: Between Procedural Legitimacy and Political Inclusiveness

Author: المحامي فراس كراجة

The war has not yet ceased, and despite the genocide being committed against the Palestinians in the besieged Gaza Strip and the ongoing assaults by settlers and Israeli army forces in the West Bank that involve demolishing camps, expanding settlements, and eliminating all possibilities for establishing a Palestinian state even on the remaining part of the West Bank, the Palestinian political leadership has been preoccupied solely with internal arrangements, attempting to present an image of Palestinians that aligns with what the world expects in order to accept them.

Therefore, the Palestinian scene was surprised in recent weeks by two consecutive decisions made by the Palestinian president: the first was the formation of a preparatory committee to conduct elections for the Palestinian National Council, accompanied by conditions for membership in both the National Council and the Palestine Liberation Organization (PLO) that required commitment to the PLO's program and its international obligations, in reference to the Oslo Accords and adherence to international legitimacy decisions. The second was the formation of a committee to prepare a Palestinian constitution.

Despite the significance of these two paths in the context of political and institutional reform, their parallel nature raises profound legal issues related to the arrangement of priorities, the legitimacy of the mandate, and the inclusiveness of national representation. This article aims to illustrate the contradictions between the two pathways and to emphasize that it is impermissible to begin drafting a constitution before renewing the representative legitimacy of the Palestinian National Council, while also addressing the issue of conditioning compliance with the Oslo Accords and marginalizing significant political forces, and how this conflicts with universally recognized constitutional and reform principles.

It is impossible to discuss the committee tasked with drafting the Palestinian constitution without mentioning that in 1999 a committee was commissioned for this purpose by the then President of the Palestinian National Authority, Yasser Arafat, after being tasked by the Palestinian National Council, the Legislative Council, and the Executive Committee of the PLO. This committee, chaired by Mr. Nabil Shaath, worked on the draft after holding nearly 200 meetings and workshops in coordination with Palestinian civil society institutions and with academic, political, legal, Arab, and international figures.

The Legal Framework of the Palestinian National Council and Representative Legitimacy
The Palestinian National Council is considered, under the Basic Law of the PLO (1968 and its amendments), the highest legislative authority for the Palestinian people. Article (7) states that the National Council is the "highest authority that determines the policies of the PLO and plans its programs," while Article (13) grants it the authority to elect the Executive Committee and hold it accountable.

Accordingly, any major foundational step, such as forming a committee to prepare a new constitution, should emanate from an elected National Council. Bypassing this rule undermines the legitimacy of the constitutional process and makes it reliant on individual executive will rather than on a comprehensive legislative mandate.

This principle aligns with global constitutional jurisprudence, which affirms that constitutions should be issued by bodies elected or authorized by the people, as was the case in South Africa (1996) and Tunisia (2014). Conversely, attempts to draft constitutions through unilateral executive decisions have suffered crises of legitimacy and societal acceptance.

However, the uniqueness of the Palestinian case, with its complexities and exceptionalism, raises a different question about the legitimacy of any constitution drafted amid genocide and starvation perpetrated by the Israeli occupation. What impact will this have on the sentiments of the people? And how will it reflect on their collective memory, on one hand, and on the international community's perception, on the other?

The constitution signifies that we are dealing with a contract between the state and the people, which must meet all legal and procedural conditions. However, this contract requires a nurturing social and political environment. Can a people suffering under war and genocide, especially in the Gaza Strip, participate in this contract? And how will they deal with its outcomes? This raises a significant question about the legitimacy of this constitution that will be drafted under such circumstances!

The Palestinian Basic Law and the Sequence of Legitimacy
The Palestinian Basic Law (2003 and its amendments in 2005) emphasizes the principle of democratic legitimacy and institutional progression. Article (2) states that "the people is the source of authority," while Article (47 bis) states that "the Legislative Council is the elected authority of the Palestinian people."

Although the Basic Law regulates the authority of self-governance, its legal philosophy confirms that elected representative institutions hold the authority to make decisive decisions. By extension, the Palestinian National Council, as the unifying body of the Palestinian people, should be the framework that grants legitimacy to any committee tasked with preparing a national constitution, rather than being formed by a direct presidential decision.
This aligns with the globally recognized principle of institutional progression, where comparative experiences (such as Nepal) have shown that the order of steps—elections, constituent assembly, constitution—is a fundamental condition to avoid constitutional crises and divisions. The recent Egyptian experience provides a lesson, as some constitutional amendments were made through popular referendum after the ousting of President Mubarak, and after these amendments were approved, elections were held for the People's Assembly and the Shura Council, followed by the formation of a committee to draft a new constitution. After completing this legislative process in a gradual and orderly manner, presidential elections were conducted.

The Issue of Conditioning Compliance with the Oslo Accords and Marginalizing Factions
Some official statements indicate conditioning the participation of political forces in the election of the National Council on compliance with the Oslo Accords. The composition of the committee shows the exclusion of influential Palestinian parties and factions.
From a legal and political perspective, this raises several fundamental issues:
1. It contradicts the principle of national inclusiveness established by national dialogue documents and previous national council decisions.
2. Excluding major political forces undermines the legitimacy of any subsequent constitutional text, turning it into a document of a single party rather than a comprehensive social contract.
3. It contradicts comparative constitutional jurisprudence, which emphasizes that the foundational process must be inclusive and consensual to ensure stability and societal acceptance. The experiences of South Africa (1996) and Tunisia (2014) succeeded due to inclusiveness and consensus, while exclusionary experiences, such as in Libya after 2011, failed.
4. It constitutes an overstep of the representative function of the National Council, which Article (13) of the PLO's Basic Law states that it "represents all Palestinians inside and outside Palestine."
Additionally, conditioning compliance with specific political agreements contradicts the principle of popular sovereignty, which makes the constitution the highest social contract, not merely an extension of transitional agreements. Comparative experiences did not require political forces to pre-commit to specific agreements; rather, they viewed the constitutional process itself as an opportunity to reconsider or affirm those agreements.
Also, imposing conditions or restrictions on the parties allowed to participate in the electoral process or in drafting the constitution raises questions about the source of the right to impose such conditions and leads to confusion in understanding the hierarchy and sources of authority. It is preferable to adhere to international standards in drafting constitutional documents to ensure inclusiveness and political diversity.
The Palestinian political environment, which includes more than fifteen political parties and factions, is the product of a long struggle for liberation and state-building. Therefore, doors must be opened for all these forces to participate equally in drafting the constitution, not only to enhance legitimacy but to present an honest picture of the Palestinian people and their awareness of the importance of political and party work in decision-making.

Procedural Legitimacy and Societal Acceptance
International experiences confirm that procedural legitimacy is no less important than the substance of constitutional texts. If elected institutions are bypassed or essential parties are excluded, then any constitution resulting from that will lack societal acceptance. Experiences such as Iraq (2005) have shown that exclusion during the foundational process resulted in a constitution with weak legitimacy and lacking national consensus, while inclusivity and consensus in South Africa ensured the stability of the constitutional system for subsequent years.

Conclusion and Recommendations
Through analyzing the relevant legal texts and connecting them to global constitutional principles, the following can be concluded:
• It is not legally permissible to commence drafting a constitution before an election of a new National Council, since the National Council is the original authority with the power to grant the mandate and draft the constitutional charter, as confirmed by the principles of representative legitimacy globally.
• Conditioning compliance with specific political agreements (such as Oslo) as a prerequisite for participation undermines the principle of political pluralism and contradicts the principle of popular sovereignty, which makes the constitution a reflection of the collective will rather than a temporary political agreement.
• Marginalizing essential Palestinian factions empties the constitutional process of its national substance, making it a unilateral step that does not rise to the level of reform or national reconciliation, in clear contradiction to the principles of inclusiveness and consensus, which are considered a steadfast norm in comparative constitutional jurisprudence.
• Procedural legitimacy is a fundamental condition for accepting any constitutional text. Bypassing it makes the constitution fragile and non-comprehensive, even if it is an advanced text.

The correct path requires first conducting elections for a new National Council to renew representative legitimacy, and second empowering this council to form an inclusive constitutional committee that involves all Palestinian forces and factions without exclusion or preconditions. Only then can the Palestinian constitution transform into a comprehensive social contract that consolidates political reform and national reconciliation, grounded in procedural legitimacy and inclusiveness, which are among the pillars of successful global constitutional experiences.