A Review of the Draft Constitution (1-5)

It is undeniable that the preparation of constitutions is not merely a technical issue but rather a distinctly political one; it translates the social contract with its various components into a constitutional document that organizes political institutions and their relationships, lays down the fundamental rules for citizens' rights and freedoms, which govern their way of living for themselves and future generations. It embodies the cultural heritage of the Palestinian people and their social development, realizes their political aspirations and hopes, and outlines the future for upcoming generations.

 (1) Foundations for Reviewing the Draft Constitution

The period for public discussion of the draft constitution, as per Presidential Decision No. (10) of 2026, has ended. Many civil society organizations, individuals, and experts submitted their observations and proposals to the Constitutional Drafting Committee responsible for receiving these proposals, classifying them, and preparing a detailed report outlining the results of studying the observations and recommendations concerning amendments to be submitted to the President of the State for discussion and approval before preparing the final version.

A careful reading of the texts of the draft constitution is not limited to substantive observations and detailed notes but also involves the philosophy or foundations of the reading; any review of the temporary draft constitution of the State of Palestine, both form and content, is based on several foundations and principles, which are; (1) the evolution of political thought and its rules linked to the course of human development throughout human history. (2) The evolution of Palestinian constitutional law and comparative constitutional law. (3) The constitutional engineering in the draft constitution, such as presenting or delaying chapters and articles, which carry connotations and meanings; for instance, the text in Article Two of the draft constitution being considered regarding the system of governance takes precedence over the people mentioned in Article Nine, indicating that the committee prioritized governance and its nature over the social contract's origin and source. (4) Regulating the legislative phrasing of the provisions of the draft constitution to prevent conflicts and to tighten definitions, stopping redundancy and multiple interpretations of the text, which could lead to future constitutional issues that may harm the political system intended for the Palestinian people. (5) Adopting best practices of good governance and integrity of authority in the details of the roles and responsibilities of constitutional authorities and institutions. (6) Discussing religious issues through a contemporary reading that respects the historical development of political thought in Islam.
 
(2) Description of the System of Governance

Article Two states that "The system of governance in the State of Palestine is a republican democratic parliamentary...." This indicates that the Constitutional Drafting Committee chose to regard the term democracy (democratic) as a form of governance by nature or to compare it with other forms of political systems or the opposition between them (democracy vs. tyranny) (democracy vs. aristocracy) (democracy vs. totalitarianism like fascism and Stalinism). However, the human experience has surpassed this model, as democracy is the result of long-term transformation processes that have crossed all political forms through a human experience that has been and continues to be shaped "in a manner directed forward" and is continuously subject to criticism, examination, review, and correction. The shift in this experience from viewing democracy as a form of governance in comparison to other forms to describing and valuing the nature of governance in the state is a term more political than constitutional.

As for the choice of one form of democracy in the text, namely "parliamentary," it limits the use of other forms of democratic patterns or manifestations; history has known multiple forms of practicing democracy, which are:

· Direct democracy: where the people themselves assume the authority of governance in all its aspects, from legislation, implementation, to judiciary, through meetings of the citizens in a popular assembly where they decide laws themselves and assume their execution, as well as resolving disputes.

· Parliamentary democracy: this form of democracy is based on the people's election of representatives who are considered their deputies, meaning that people elect individuals to exercise their authority, which naturally necessitates the presence of parliamentary councils or representative bodies.

· Semi-direct democracy: a system that attempts to reconcile direct democracy and parliamentary democracy, due to the impossibility of voters exercising governance themselves. Therefore, it establishes means that allow voters to exercise some of these authorities alongside their deputies. Among the manifestations of direct governance are popular referenda, popular initiatives, public objections, and the dismissal of deputies.

The democratic pattern of any system of governance is based on three main pillars: (1) elections, as a method for the transfer of power through competition, which is one of the fundamental rules in elections, where citizens choose between several candidates, "If all humans are equal and free, no one can command them except for those whom they have chosen for this purpose, thus, all authority should be based on election." (2) The rule of law, meaning the obligation to implement the law on everyone, and the hierarchy of legal rules that ensures the oversight of independent judges over public authorities. (3) The activation of the principle of separation of powers ensuring the oversight of each governmental body by another; "power checks power" as Montesquieu said, the principle of legitimacy and the hierarchy of legal rules ensure this restriction on rulers at various levels, providing citizens with means of objection against illegal acts.

The evolution of political thought regarding democracy, linked to human development, necessitates the elimination of decorative descriptions in the texts for the purpose of tightening them, and the removal of the word "parliamentary" so that there will be no contradiction with the use of one of the democratic manifestations represented by the "referendum" stipulated in Articles 82, 155, and 162 within the context of regulating the legislative phrasing of constitutional rules.
 
 (3) On the Nature of the Political System

 The draft constitution stipulates the nature of the political system; Article Two indicates that "the system of governance in the State of Palestine is a republican democratic parliamentary based on the separation of powers, balance, and cooperation among them, and the peaceful transfer of power through free, fair, and periodic elections." This form of democracy does not specify the nature of the relationship between the three branches of the state "executive, legislative, and judiciary" and that the principle of separation of powers by distributing powers and containing its controls creates balance among its authorities in all political systems "presidential, parliamentary, and council".

In contrast, Article 25 of the draft states, "The Declaration of Independence and the Constitution, with all their components, constitute an indivisible unit, and their components are interpreted and construed as a cohesive organic unity." This creates a contradiction in the texts of the draft constitution regarding the nature of the political system according to what is stated in the Declaration of Independence and the draft constitution, on one hand, and contradicts the Constitutional Court's decision that placed the Declaration of Independence in a position of higher importance on the other hand. Creating harmony between the articles of the draft constitution and what was stated in the Declaration of Independence, adopted by the Palestinian National Council on November 15, 1988, necessitates embracing the principle of separation of powers to establish the parliamentary system since the Declaration of Independence is the social contract adopted by the Palestinian community, accepted, and struggled to realize it.

The calling for a parliamentary political system is based on historical, political, and constitutional factors of significance in the lives of Palestinians and their political system. Regarding constitutional rules, (1) The Declaration of Independence stipulates that "The State of Palestine is for the Palestinians wherever they may be; therein they develop their national and cultural identity, enjoy full equality in rights, and their religious and political beliefs and human dignity are preserved, under a democratic parliamentary system." (2) The Constitutional Court's decision in the ruling issued on 12/3/2018 regarding the interpretive request No. 5/2017 affirmed the elevated status of the Declaration of Independence, stating, "The Declaration of Independence is an integral part of the constitutional system in Palestine, and its highest supremacy comes above the Basic Law...". This forces any individual, committee, or institution to be unable to bypass this constitutional ruling, given that "the decisions of the Constitutional Court are above the constitutionality", and that "the rulings of the court in constitutional cases and its interpretation decisions are binding on all state authorities and everyone according to the provisions of Article 41 of the Constitutional Court Law. (3) The commitment to the provisions of Article Two of the presidential decree establishing the Constitutional Drafting Committee and its references, which stipulates the mandatory consistency of the draft temporary constitution with the Declaration of Independence and the principles of international law.

As for the historical context over the past thirty years, the presidential system that was in place before 2003 did not succeed, nor did the semi-presidential semi-parliamentary system that was adopted after amending the Basic Law at that time, rather there was a clash within the political system that fractured political institutions and exacerbated division; in both cases, the executive authority overran the legislative and judicial branches.

These constitutional legal rules governing the work of the Constitutional Drafting Committee and the historical factors influencing the context of building the optimal model of governance and its political system, as well as the demands of civil society, especially the message from some civil society organizations addressed to the Constitutional Drafting Committee, all require the adoption of a parliamentary system, which necessitates reconsideration of all sections related to the nature of the relationship between the state authorities and mandates a modification of the text of Article Two of the draft constitution to read as follows: "The system of governance in the State of Palestine is parliamentary based on the separation of powers as indicated in this constitution, and on the peaceful transfer of power through free, fair, and periodic elections, and on the rule of law."