In the Constitution and the Interim Constitution (3-3)

Author: جهاد حرب

(1) Factors for Success and Failure of the Interim Constitution

It is redundant to say that drafting constitutions is not merely a technical matter but rather a political one par excellence. It translates the social contract with its various components into a constitutional document that organizes political institutions and their relationships, establishes the fundamental rules for citizens' rights and freedoms, and dictates a way of living for them and future generations. It embodies the cultural heritage of the Palestinian people and their social development, as well as their political ambitions and hopes.

Reaching such a document requires implementing the rules for success for the constitutional declaration "the interim constitution" based on international experiences, particularly in the Arab world, which are represented by: (1) establishing a specific time frame for the transitional period linked to a schedule for completing the permanent constitution. (2) Ensuring national consensus based on involving various political and social forces in its drafting to guarantee its legitimacy. (3) Including supra-constitutional principles (rights and freedoms, separation of powers) that bind the incoming legislator. (4) Establishing flexibility rules that provide space for governance while placing strict controls and restrictions to prevent despotism. (5) Having a clear mechanism for drafting the permanent constitution, such as a constitutional assembly or an elected committee. (6) Providing guarantees for implementation, such as having oversight institutions or international/local support to prevent a coup against the transitional phase.
Conversely, reaching this constitutional document requires avoiding the causes of failure for temporary constitutions demonstrated by existing experiences in Arab countries, which include: (1) the absence of national consensus in its drafting through a unilateral decision or under an unelected transitional authority. (2) Unlimited extension that transforms "temporary" into permanent without a clear foundational path. (3) Multiple constitutional declarations that continuously change the rules, thus losing legitimacy. (4) The collapse of partnerships and weak trust among parties and political forces. (5) Neglecting popular legitimacy, such as not presenting the texts for public discussion or referendum.
 
(2) Legitimate Questions Available

The presidential decree regarding the preparation of the interim constitution raises essential issues that need to be addressed; of course, in addition to the main rules above, starting from the committee drafting the interim constitution, they are: (1) the required effort and necessary cost for preparing and drafting the constitutional declaration described as the interim constitution, and (2) the nature and extent of the interim constitution, whether it will be detailed or include main principles for governance during the transitional phase. (3) What political system of governance will the interim constitution establish? Will it be a parliamentary democratic system as stated in the Declaration of Independence document, considering it a supra-constitutional document, or a parliamentary representative democratic system as mentioned in the Palestinian Basic Law, or a presidential system as indicated in the drafts of the constitution favorably to enhance presidential authority? (4) The "magic formula" mechanism for combining the contradictions present in Article Two of the decree establishing the drafting committee for the interim constitution, represented by the political and legal documents as a reference for the committee in drafting the interim constitution, which are the "Declaration of Independence, principles of international law, international legitimacy resolutions, and international human rights charters" against the "agreements signed by the Palestine Liberation Organization (such as the Oslo Agreement) or the State." (5) The extent of openness and partnership with the spectrum of Palestinian political and social forces and civil society organizations, and the nature and form of community dialogue at the popular level across the governorates, cities, towns, villages, and neighborhoods, considering it a basis for popular acceptance and national consensus on the social contract that the drafting committee for the interim constitution will outline. (6) How will the drafting committee for the interim constitution address its adoption as a national or governmental exit through the organizations of the Palestine Liberation Organization or through a popular referendum organized in the occupied State of Palestine territory.     

(3) Conclusion

In my opinion, any political recommendations regarding the future of the constitutional document or "renewing the social contract" governing the future of Palestinians require setting time horizons and a political perspective to end the transitional phase, linking it to a foundational process to ratify the constitution of the Palestinian state upon achieving practical steps towards independence or national unity. This requires: (1) launching a comprehensive national dialogue involving factions and social forces regarding the future constitution. (2) Adopting binding supra-constitutional principles that include: fundamental rights, peaceful transfer of power, separation of powers, and independence of the judiciary. (3) Making interim amendments to the Basic Law that restore balance among the powers and constrain the executive authority until the permanent constitution is drafted. (4) Strengthening popular legitimacy through a public referendum on any new constitution.