PART I: INTRODUCTION

The signing of mutual recognition agreements by Israel and the Palestine Liberation Organization has created the opportunity and necessity to immediately expand discussions about the governmental process for the envisioned five year autonomy period and hoped-for future state of Palestine. The Palestinians have professed an interest in establishing the first true democracy in the Middle East. For example, in 1988, the 19th session of the Palestine National Council (PNC), declared the existence of the State of Palestine with the goal of achieving democracy and equality. Democracy is in part constitutionalism, which concerns creating a climate in which the governing document is adhered to as a charter for the exercise of power as well as a limit on that power. "Constitutionalism has to do with making the state into a recht staat, an etat de droit, a state that is governed by its own public law." A state's constitution thus expresses the overarching legal principles by which the government is to function. Framers of any constitution must carefully weigh competing ideas and consider a variety of factors in fashioning the final product.

A constitution also manifests a state's experience and aspirations. Constitution-making remains the preeminent (and institutionalized) constituting act of a country. It serves as a marker and rewriting of where the state has been and expresses where it would like to be going . . . The conflicts between the limiting/legitimating and the self-defining/reuniting/aspiring aspects of a constitutional text create discontinuities and contradictions noticeable to any reader . . . Careful analysis of the text uncovers tensions and contradictions that are hidden within the text, as well as gaps left by conflicts so great that they could not be hidden and therefore have been omitted.

For the founders of the new nation, a constitution may be like a "marriage consummated through the pledging partners' positive, active consent to remain a nation for better or worse, prosperity and poverty, peace and war."

Additionally, in the current phase of the world wide trend toward constitutionalism, there has been a "copycat" approach in which many developing nations have adopted western constitutional norms without evaluating their propriety. "A certain minimum equivalence or identity of underlying societal conditions is a pre-condition to the successful reception or transfer of legal models from one system to another."

Of course, after the constitution is written, there remains the need for both politicians and polity to engage themselves in a democratic political process. Additionally the citizenry must nurture the elements of the civil society, i.e the nongovernmental elements that are the social foundations of democracy.

As Palestine considers its first autonomy charter or constitution, it must avoid these problems by carefully studying the experiences of other countries, but adopting only those provisions that can be rooted in Palestinian legal culture and society. Recently, Palestinian National Authority President Yasser Arafat has named a four member High Legal Commission, chaired by British Palestinian barrister Dr. Anis Al-Qasem. This Commission is in the process of drafting a Basic Law, which will in effect be an interim constitution for the coming period. Such a document "postpones the accommodation of political paradoxes using unstable principles instead for carrying on in the absence of agreement on one or more elements of the basic framework."

This article raises some of the "constitutional" issues that Palestinian decisionmakers and citizenry might want to consider immediately and over the coming years. Part II highlights selected characteristics of Palestinian society that will affect in the achievement of the goal of a constitutional democracy. While there are many such factors, the ones featured herein are: the relatively high degree of educational attainment; degree of political pluralization; communitarian/hierarchial society; distrust of authority; and the multi-layered legal regime. Part III then presents an overview of some of the potential constitutional structures of the executive, legislative, and judicial branches. Reference is made to the experiences of Middle Eastern and European countries. Part IV discusses some of the issues regarding constitutional rights. It focuses on women's rights as a case study of how the pre-existing multi-layered legal regime with its communitarian heritage will make it difficult to create actual change in the status of women. Part V concludes that elaboration on all of these areas must continue through discussion among Palestinian leaders and community members in order to give themselves the best chance for creating a vibrant democracy in the Middle East.