Reading into the Draft Constitution (3-5)

(1) Equality and Non-Discrimination

Equality and non-discrimination represent a central and fundamental concept in the philosophy of democratic building or the description of the political system in the state and the writing of constitutions. Based on this concept, the consistency of its constitutional rules with the pillars of democracy is measured. Although the Constitution Drafting Committee has included the concept of equality in several instances in the draft constitution, it has retreated from it in key places in the general provisions chapter, which expresses the governing principles of the texts in the subsequent chapters of the constitution and the necessary directions for the Palestinian legislator regarding the organization of rights and freedoms, and it has burdened it more than its capacity in the chapter on rights and freedoms.

·        Equality between Men and Women in the Draft Constitution

Article 8 of the draft constitution establishes several fundamental principles for its development in the chapter of freedoms, which are important and primary. Although it stipulates in its second paragraph that the state guarantees equality between men and women in all rights and freedoms, it retreats from discussing women's representation by stating "to ensure fair and appropriate representation of women in elected councils" without having a constitutional text defining what fair and appropriate representation is. Out of fear of deviating from the minimum of 30% in elected councils, government, and senior positions as stated in the Palestinian National Council's decision, it ought to be enshrined in the constitution since the terms fair and appropriate do not necessarily denote equality or reaching equality between men and women. The text of the article also did not prohibit discrimination based on gender, nor the invalidation of any decision or legislation based on discriminatory foundations.

·      Discrimination in the Draft Constitution Regarding Followers of Heavenly Religions

Article 4 of the draft states that "Islam is the official religion of the state of Palestine," which is a tradition established in most Arab countries. However, the effort for a civil state necessitates that it should not be based on a religious identity but rather be a state based on rights, freedom, and citizenship. On the other hand, adopting the philosophy of a religious state means promoting the idea of a Jewish state based on religion, which the occupying state seeks to entrench as a characteristic governing the nature and foundations upon which states in the region are built.

In the third paragraph of Article 4, a further distinction is made between the followers of the prophet Jesus and the followers of the prophet Moses among Palestinians; it states that "Christianity has its place in Palestine, and all religions deserve respect." This specification implies a lack of recognition for the Samaritan/Jewish religion or the exclusion of a religious group and its followers, thus diminishing their national status and contribution to public life. A contemporary reading of the Holy Quran suggests that the term "Muslims" is directed at all humans, regardless of their beliefs, religions, and sects, and that the community follows the heavenly laws revealed to the messengers Muhammad, Moses, and Jesus, peace be upon them. There should be no differentiation or discrimination between them under the state. The text should state "the heavenly messages have their place in Palestine, and all beliefs deserve respect," and they should organize their religious affairs and choose their spiritual leaders according to their laws. This would achieve the desired equality in constitutional rules and prevent discrimination between citizens.

·      The Right to Nationality for the Children of Palestinians

Article 6 of the draft states that "Palestinian nationality is regulated by law," referring the legislator to the law without setting specific criteria, which opens the door for political changes that may deprive some of acquiring nationality based on discriminatory grounds related to gender, such as depriving the children of Palestinian women who marry non-Palestinians. The principle of equality necessitates establishing this principle in the constitution and regulating the law to exercise this right by stating that "nationality is a right for anyone born to a Palestinian father or mother, and legal recognition of it must be granted along with official documents verifying their personal data, a right guaranteed by the constitution, and the law regulates the exercise of this right."

·      Equality Before the Law and Judiciary

The Constitution Drafting Committee mentioned in Article 27 of the draft constitution that "Palestinians are equal in rights and duties, and they are equal before the law and judiciary." The drafting committee did not consider the first part of the article concerning duties, as it is impossible to equate duties; the idea of differentiation here is absent due to disability or lack of ability, for example, which are matters beyond a person's control. The second part concerning equality before the law and judiciary is sound. This necessitates converting this principle into the first chapter, along with shortening the text to "Palestinians are equal before the law and judiciary, with no discrimination between them based on race, gender, color, religion, political opinion, or disability."

(2) The Status of International Treaties and Mechanism for Their Ratification

Article 82 of the draft regulates the treatment of international treaties in terms of their status, being lower than the constitution and higher than the law, in terms of their types and methods of approval. In addition to depriving the parliament of ratifying most treaties, especially those related to peace, union, border delineation, or those related to sovereignty, while the parliament is responsible for exercising sovereignty on behalf of the people. The head of state, the president, signs and ratifies international treaties broadly. These treaties are what are published in the official gazette, while the status of agreements ratified by parliament and by popular referendum is not clear. The status of these treaties in relation to the laws complementing the constitution mentioned in the draft constitution remains unclear.

The principle concerning the status of treaties ratified by the state of Palestine, according to the conditions stipulated in the constitution, is above the laws in force and below the constitution. This should be placed in the general provisions chapter. The president’s role should be limited to signing them as this signing is a declarative decision, not the origin of the state of Palestine’s position towards the treaty after its approval by the government and ratification by parliament. As for the agreements made by the government regarding peace, union, borders, or sovereignty, they should be presented for a referendum after being ratified by parliament.

(3) Independent Constitutional State Institutions

There is no doubt about the importance of constitutionalizing some specialized public institutions that provide guarantees for citizens in anticipation of the oppression or encroachment of the executive authority and oversight over it, as well as linking it to the supervisory authority "the Parliament" to ensure its immunity and the immunity of its actions.

Chapter Nine identifies six independent institutions as independent constitutional state institutions; the texts of Articles 145-150 indicate a difference in the mechanism for appointing their heads, their reference, and accountability mechanisms. This requires standardizing the nature of these institutions in terms of the appointment mechanism and the necessity for parliament to approve the heads of these institutions, along with the reference so that they report to both the parliament and the president, the prime minister, and the oversight and accountability mechanism so that it is done by parliament.

Furthermore, it is essential to reconsider the constitutionalization of certain institutions like social security and retirement, as on a practical level, it is not expected that they will be integrated in the medium term, and the likelihood of rekindling the protests that occurred against the social security law; constitutionalization does not mean subjecting citizens. Additionally, reconsidering merging the integrity and transparency authorities, as they are two different matters; the integrity/anti-corruption authority has roles related to raising awareness and preventing corruption and pursuing the corrupt, while transparency relates to the citizens' right to access information, which are two different fields and, in some aspects, contradictory in function and role.

Constitutionalization does not entail elevating the laws organizing the work of these institutions to the same status as the constitution in terms of their issuance or amendment as specified in Article 109 of the draft constitution, but rather specifying them in the constitution through stipulating some provisions that protect their functioning from the overreach of authorities on the one hand, while leaving their regulation to ordinary law, which can be amended in line with global developments and updates in their fields of work, and potential international treaties that may be signed in the future in the fields of work of these institutions, so that the provisions of the provisional constitution do not hinder the evolution of the state and prevent its institutions from improving their performance in accordance with best international practices.