A Reading of the Draft Constitution (4-5)

(1) Complementary Laws to the Constitution

The Committee for Drafting the Constitution established a new category of laws under the title "Complementary Law to the Constitution", which was not part of the Palestinian constitutional norms, and its status in the legal hierarchy of the Palestinian "Kelsenian Pyramid of Laws" was not defined, especially in relation to international treaties that are signed. Article 109 of the draft constitution stipulates that "Complementary laws to the Constitution are issued and amended with the approval of two-thirds of the members of the Council, which include laws regulating general elections, political parties, the judiciary, the Constitutional Court, the public budget law, and laws regulating independent constitutional institutions".

Regardless of the legislative drafting and its precision, issues "such as elections, parties and budget regulation" and institutions "such as the judiciary, the Constitutional Court, the Monetary Authority, the Audit Bureau, the independent authority, social security, retirement and the Electoral Commission" mentioned in this article come to control the components of the political system and prevent any future changes, hindering potential amendments that may be necessary with the political and social evolution of society, or limiting any reform to the structure and functions of institutions that might be essential to keep pace with global transformations regarding the functions of these institutions and the international agreements that the State of Palestine signs.

It is also surprising that the judiciary and the Constitutional Court are organized by a complementary law to the constitution, while the work of the Legislative Council is organized by an internal system that may raise debate on its commitment to other political and authoritative institutions, and forgetting the executive authority from the obligation to organize its work by law.

The scattered texts in the draft constitution indicate a disparity between them, as some explicitly mentioned the complementary law to the constitution in articles 49 concerning parties, articles 54 and 101 regarding elections, and articles 138 and 141 related to the Constitutional Court, while the term "law" was used for the remaining topics and institutions mentioned in Article 109, considering them as complementary laws to the constitution, which is synonymous with the word law mentioned in many other articles; such as citizenship determined by law, the right to movement within the law... etc., opening the door for interpretation in it.

It seems that this aspect was overlooked by the Drafting Committee of the Constitution, or it lacks precision in its formulation, or it aimed at the three issues "elections, parties and the Constitutional Court" as focal points guaranteeing control over access to the ruling class and maintaining it.

(2) Referendum and Lack of Texts

The subject of the referendum was mentioned in three places in the draft constitution; concerning treaties related to peace, union, border demarcation or related to sovereignty (Article 82) without stipulating the prior approval of the House of Representatives, amending the constitution (Article 155) unless approved by three-quarters of the House of Representatives, and the referendum on the temporary constitution (Article 162). However, the percentage of participants in the stipulated referendum and the necessary majority for accepting the referendum results were not specified.

The three issues related to the referendum are fundamental issues that have significant and long-term repercussions that require careful handling, which necessitates; First: presenting each of them to the House of Representatives for approval by a special majority "two-thirds approval of the members of the Council", and secondly: that the ratification of those in a popular referendum is conditioned that the number of participants in the referendum not be less than 50% of the electorate "citizens registered in the electoral register" and the approval of an absolute majority of those participating in the referendum.

(3) Future Stonewalling of the Will of the People

The draft constitution has introduced the unconventional practice of safeguarding some constitutional provisions to stonewall the will of the Palestinian people in the future, which is fundamentally unconstitutional; it states in Article 156 that no constitutional amendment shall be made concerning;

(A) The provisions relating to the acquisitions of rights and fundamental freedoms stipulated in the constitution, which are formulated in a non-binding manner and include many superfluities without making a difference in the state's obligation to them, and emphasized the authoritarian nature of the ruling system at the expense of political rights while constraining civil society organizations.

(B) Holding the presidency of the state for more than two full consecutive or separate terms, with no constitutional basis for this as it is enshrined in the basic law essentially. At a time when the continuation of the presidency term upon its expiration specified in this constitution for five years did not address the issue that the political system suffered from upon the expiration of the president's term. When drafting a temporary constitution, drafters usually address the issues that the people and the governing system suffered from.

(C) Not to touch the democratic republican system based on political and party pluralism, which, from the clear history of the national movement, was not present within the corridors of the drafting committee established over the course of a century based on political and party pluralism unless the Drafting Committee has fears from the established constitutional system which created or produced its outputs. Furthermore, this article conflicts with the provisions of subsection four of Article 82 regarding "treaties of peace, union, border demarcation, or related to sovereignty", which include the possibility of union with another state that may be under royal rule in a federal system or commonwealth, or otherwise.

This "unconstitutional" text in the contradicting sense undermines the political traditions of the Palestinian people, and the legacy of the late leader Yasser Arafat in an unwritten republican system that established a norm that the Palestinian people do not concede, and places the possibility of despots taking over to convert their state system into a monarchy under popular subjugation, which has not occurred in the historical epic of the people in resisting colonialism, and diminishes the resistance of the Palestinian people against every usurper of power from the British and Israelis.