A Review of the Draft Constitution (2-5)

(1) Priority for the People or the Government

The delay by the Constitutional Drafting Committee in recognizing the people as the source of authority in the draft constitution until Article 9, while prioritizing the text on the system of governance in its second article, indicates that, according to the concept of constitutional engineering, the committee places precedence on the governance system and the organization of relations among its components at the expense of the status of the people, who are holders of the social contract that established the governance system itself.

The formulation of the text in Article 9, "The people are the source of authority, exercising their sovereignty freely through their constitutional institutions, and no authority shall be exercised except in accordance with the provisions of this constitution, and in a manner that achieves the supreme national interest," carries many issues; it shifts the exercise of sovereignty from the government "i.e., the government in the broad sense that encompasses the entire political system" that imposes control over the territory of the state to the exercise of sovereignty by the constitutional institutions referenced in Chapter Nine (Articles 145-150) "independent constitutional state institutions such as the Independent Human Rights Commission, the Financial and Administrative Control Bureau, the Central Bank, etc.," without clarifying the status of the political institutions mentioned in "Chapters Three, Four, and Five" as the authorities of governance; the executive, legislative, and judicial branches.

The wording in this article also leads to confusion between the three authorities "executive, legislative, and judicial," which are sourced from the people, and the term authority, which refers to the tasks and powers granted to state institutions, which originate from the constitution or law.

Moreover, linking the exercise of the people's sovereignty "in a manner that achieves the supreme national interest" introduces ambiguity into the text, as the concepts of the public good or general interest are often disputed and are a source of perennial conflict, raising questions about who determines the public interest. This necessitates repositioning it by presenting it in Article Two of the constitution and amending it as follows; "The people are the source of authority and exercise it through the authorities of the State of Palestine and its institutions as specified in this constitution."

(2) Institutionalizing the Issue of the Relationship Between the Organization and the State

The texts of the draft constitution institutionalize the continued existence of the dual Palestinian political system based on two legal references and different political and administrative institutions. Article 11 states, "The establishment of the State of Palestine does not undermine the status of the Palestine Liberation Organization as the legitimate and sole representative of the Palestinian people." This reinstates the experience of the overlap between the organization and the authority, highlighting a complicated relationship between them over the past years in several aspects, the most significant of which concerns legal references and the extent of the organization's institutions' compliance with the legislation issued by the Palestinian Authority "State of Palestine," where decisions by law have recently been issued by the president, mentioning the PLO in their preamble, and are signed by the president in his capacity as head of the Palestine Liberation Organization.

This text keeps the Palestinian situation from transitioning towards embodying the state and unifying the institutions of the political system to end the duality of the established institutions; the current political system includes two institutions performing legislative tasks (the House of Representatives and the National Council) and two executive institutions (the Cabinet and the Executive Committee).

Even though one person continues to hold the positions of head of the executive committee and head of state until now, the reference of legitimacy remains different (elections for the state versus the consensus of factions for the PLO or what used to be called revolutionary legitimacy, and the constitutional reference (the constitution and the basic law of the PLO), in addition to the existence of a foreign ministry compared to the continued representation of the organization of Palestinians, considering the Executive Committee of the PLO as the temporary government of the State of Palestine until the formation of the Government of Palestine.

Moreover, the organization will become a financial center in the budget of the State of Palestine and grant state institutions oversight rights over the PLO institutions, such as the Financial and Administrative Control Bureau, and the courts regarding lawsuits against the government, as well as the weak representation of the PLO for a wide sector of the Palestinian public, including significant factions like Hamas and Islamic Jihad, contrasted with the declining status of the "Popular" nature of most factions aligned within the PLO.

The text also does not present the possibility of someone other than the head of the PLO becoming the president of the state, which will create a constitutional crisis "a struggle over status and powers" leading to a civil war and internal chaos more destructive than what occurred in 2007 regarding the political system and social structures of Palestinian society. The proposal here does not necessarily mean eliminating the PLO's status from Palestinian history but rather rethinking its role in institutionalizing the Palestinian people's struggle. This necessitates amending Article 11 of the draft constitution as follows; "The establishment of the State of Palestine does not diminish the message of the Palestine Liberation Organization in linking the Palestinian people in all areas of their presence with the State of Palestine to preserve national identity and civilizational ties and to develop the bonds with its land."