PART II: FACTORS INFLUENCING DEMOCRATIZATION

This part of the article discusses the various characteristics of Palestinian society that will impact the democratization of the country. The factors to be discussed include: education, political pluralization, communitarian/hierarchial society, distrust of authority, and the multi-layered legal regime.

A. Education

Many Palestinians have actively sought out higher education and constitute the most highly educated people in the Middle East. This impressive level of accomplishment will be an important contributor in the struggle to achieve democracy. Some political theorists would even posit that democracy cannot be achieved unless the populace has the level of educational sophistication that is currently most readily found only in western Europe and North America. Existing Palestinian literacy rates will make it possible for the public to actively read about the electoral process, as well as the nuances of the various political party positions and specific candidates. The advanced skill level means that individuals already exist who can staff the new Palestinian controlled governmental sector as well as the various components of civil society: NGOs, corporations, schools, etc. Returning exiles will be able to supplement the talents of "insiders," who may not have had the opportunity to utilize their professional credentials to the utmost due to the occupation.

On theother hand, there are parts of the Palestinian population who have not had sufficient access to education. Since the Israelis kept the schools closed throughout most of the intifada, many children and young people have lost nearly four years of schooling. Thus many have either never become literate or lost their literacy. The inability to properly conduct the annual high school tawjihi examinations during this time means that existing skill levels are unknown. The college population has of course been equally affected by the inability to complete their courses of study in a timely manner.

Moreover, the younger age of marriage and an increased childbirth rate that has recently taken place may mean that relatively fewer girls have received adequate schooling. Those in the refugee camps both inside and outside the Territories constitute other groups, whose access to education has been severely limited.

Some of those with high levels of education may have governmental service ambitions that cannot be met in the new dispensation. The creation and training for all the various positions will take some years. Yet for people denied so long, the wait would seem interminable. Factional infighting and professional jealousy will complicate these problems.

The same dynamic will hold for the private sector. For example, the Territories could not possibly accommodate all the trained individuals, including exiles who may want to work in their chosen professions. Also, those in exile with high educational attainments may not have been allowed to practice their profession. For example, a Palestinian woman from Gaza gets a BA and MBA from the United States, but finds herself working as a secretary in Washington. Although she wants to go home to Gaza, she fears there will not be a job accommodating her education in the near future.

To address these problems, the new Palestinian government will have to engage in an educational campaign on several levels. First, they will have to prepare the populace for the inevitable dashing of expectations. Second, they will have to present information on electoral processes geared for both the highly literate and the illiterate parts of the public. Third, they will have to engage in literacy and educational reform aimed at the adult population - perhaps along the lines of Cuba's successful campaign against illiteracy of the 1960's.

Fourth, they will have to design civil service institutes and internships for the training of prospective bureaucrats. An example would be the U.N.Institute for Namibia in Lusaka, Zambia, which trained Namibians in exile for nearly 20 years for the day when they would run their own country. Unfortunately, Palestine will not have the luxury of time that Namibia did, and will have to put inadequately trained bureaucrats in place almost immediately. These individuals will need on-the-job mini training programs.

Fifth, the new government will have to engage in massive reform to make the educational curriculum Palestinian-centered. Without the school closings and Israeli censorship, students could finally build the self-esteem that develops when they can fully learn of the unique contributions that Palestinians have made to the world. A U.S. example is the effort to design Afrocentric curricula to meet the need of black American children to learn of their people's historical contributions.

B. Political Pluralization

The pre-existing political groupings both within the PLO and outside of it constitute a degree of political pluralization unequalled in the Arab world. Rather than the Monarch/Dictator/one party state model, a full panoply of political factions exists ranging from Islamic fundamentalists to communists. The existence of the government in exile, the PNC, and its various constituencies is a level of democracy that could serve as the nucleus for democratization in Palestine.

But this political pluralization has its impediments as well. Only some of the current political factions inside the Territories even supported the accord with Israel. These include the majority party Fatah, the Palestine People's party (the former Communist party), and the Palestine Democratic Union-Fida (the Yasir Abd-Rabbuh wing of the Democratic Front for the Liberation of Palestine (DFLP)). The opposition includes both nationalist and Islamic trends: the Popular Front for the Liberation of Palestine (PFLP) and DFLP (the Nayif Hawatmah wing) being nationalist, oppose the agreement for tactical and practical reasons. Hamas (the Islamic Resistance Movement) and Islamic Jihad, both Islamic in nature, oppose the agreement because of their doctrinal and political rejection of Israel itself. All the opposition groups fear that Fatah may initiate violent activities and suppress them politically. Already internecine conflict has broken out.

Moreover, the PNC and the PLO in diaspora could never function in truly democratic manners. While various factions were represented, their members had to be appointed rather than elected through a general franchise. Although 1/3 of the seats were reserved for the people from the Territories, these individuals were prevented from participating by the Israeli ban on PLO affiliation. The Israeli banning of the PLO and all the resultant harassment inside the Territories means that the various political factions have not had the opportunity to develop all the trappings of full fledged political parties. The lack of any municipal elections since 1976 in the West Bank and 1946 in Gaza means that there is no deeply embedded ethic regarding political participation.

The fact that the Palestinian-Israeli accord was negotiated in secret even from the appointed Palestinian negotiators in Washington has left a bitter taste in many mouths. Additionally, there is also the sense that despite President Arafat's periodically elected status as head of the Executive Council of the PNC, he runs the PLO in a rather dictatorial fashion. A recent example occurred in December 1993 when Dr. Haider Abdel-Shafi, former head of the Palestinian negotiating team to the peace talks, went to Tunis with a petition signed by 118 prominent people in the Occupied Territories, criticizing Arafat's autocratic manner and calling for greater democracy. Can a leader of a national liberation movement convert to a duly elected President or Prime Minister? President Robert Mugabe of Zimbabwe, the late President Samora Machel of Mozambique, and President Sam Nujoma of Namibia are all examples of liberation movement leaders who were able to make the transition, albeit with some difficulty.

It will be interesting to see if more political parties form, either for next July's elections or for those in five years. It is easy to envision Fatah, currently a broad-based nationalist group, breaking up into several political parties based on more narrow ideological lines. Such a breakdown happened in the Sudan. After the long period of military rule in Sudan ended with the ouster of President Numeiry, more than 42 political parties formed. Of course, the election results were so fragmented that the plurality winner, Saddiq el Mahdi, did not hold a large enough percentage of the population to stave off the almost inevitable military coup. A similar outcome could occur in Palestine if the winning party and chief executive hold too slim a portion of the populace to govern effectively, leading to violent overthrow or factional turmoil.

Palestinian decisionmakers could address these concerns in the area of political pluralization by discouraging the formation of additional parties for the July 1994 elections. This could be done through behind the scenes discussions with key players, rather than through a ban on the further formation of parties. Second, the decisionmakers could utilize the resources of European and American governments, NGOs, and experts concerning political party organization.

C. Communitarian/Hierarchial Society

Palestinian society is very much oriented on commlines, i.e. there is a central emphasis on family, clan and group loyalty rather than emphasis on individual rights issues as in the western individual theory framework. But this communitarian emphasis, which is found throughout the developing world, should not be confused with a communal society where everyone is equal. This dynamic is also hierarchial, where status (often inherited) is quite critical.

This communitarian/hierarchial configuration can be an asset for democracy because it may translate into a willingness to adhere to group norms of a party rather than mere focus on individual needs. The existing party leaders who have acquired or inherited status to some degree, may be obeyed or listened to with a greater degree of loyalty, at least initially, than is seen in the West. In the Palestinian context, if the factional and public leaders endorse democratic norms, programs and candidates, the populace may follow.

On the other hand, the communitarian/hierarchical factor will be a major impediment if political leaders endorse or tolerate nondemocratic or corrupt candidates and programs. There are numerous international examples where this factor caused friction as ethnic group members blindly clung to obviously corrupt leaders who engaged in outrageous activities. The lack of legacy of emphasis on individual rights may lead people to suffer in relative silence, punctuated by homicidal outbursts and military coups to rid the country of one corrupt clique, only to replace it with another.

Palestinian decisionmakers can build upon the strength of the communitarian heritage by designing governing structures and programs that emphasize this heritage through the provision of group rights such as respect for language, culture, education, etc. For example, the Draft Basic Law contains protections for group religious exercise. Protecting the individually oriented civil and political rights, such as freedom of speech, press, assembly, is provided for in the document as well. However, sufficient enforcement mechanisms are essential to provide the foundation for potentially avoiding the fate of so many dictatorial communitarian societies.

D. Distrust of Authority

The twenty-five year occupation has naturally made Palestinians distrustful of authority. The intifada was the ultimate attempt to 'shake off' an illegitimate regime. This distrust of authority can be an asset in the democratization process because the Palestinians may be overjoyed to finally embrace a Palestinian authority that a majority of them will hopefully believe is legitimate. This passion to finally be governed by one's own people may create a level of tolerance with a high enough portion of the population to ensure political stability in the turbulent transition years.

The negative side is that the distrust of foreign authority may transfer over to distrust in any authority. The dynamic of distrust imbedded for one's whole life may be difficult if not impossible to dispel. The children who have grown up during the intifada may constitute a lost generation not answerable to anyone. Gang formation and religious fundamentalism may prove increasingly popular options for this group - with many unable to transition into "normality." It is hard for warriors, even young ones, to lay down their weapons, especially in a struggle as old as the Palestinians.

Palestinian decisionmakers will have to engage in a variety of educational and governmental programs to build a sense of trust and legitimacy in the young and old. The conduct of political officials should be above reproach, and corruption should be rooted out and prosecuted. The intifada generation must be specially targeted for self-esteem, education and job opportunities. This will ensure that Palestinians do not develop the burgeoning U.S. gang problem. There are preliminary efforts in the U.S. to attempt to reclaim these gang youths. Efforts will also have to be made by both the Palestinian private and public sector to reach to those young people who are already into gangsterism.

E. Multilayered Legal Regime

The Palestinians have one of the most complex legal systems in the world, partially as a result of so many occupations. The legal layers include custom (urf); Islam (sharia); Ottoman land law; British Mandate emergency regulations; Israeli civil law for East Jerusalem and Jewish settlers; Jordanian civil law in the West Bank; Egyptian civil law in Gaza; Israeli military law; and changes wrought in all of the above by the intifada.

Custom and customary law occupy a powerful place within Palestinian society. The most ancient legal tradition in the Occupied Territories today is the customary law known as urf (that which is known). Urf handles disputes outside the official civil or religious courts on the basis of traditional oral customs and norms that stress conciliation, mediation, and family and group honor. Respected elders or reconciliation committees (ludjnat el-islah) mediate disputes until a binding settlement (sulha) is reached. These individuals are always powerful and always men. They might include the local mukhtar and they may be religiously sanctioned. The parties involved may not only be an individual claimant, but an entire family or clan (hamula) since offenses against individuals are also seen as offenses against the family or clan. The types of disputes include contract issues between businessmen, interfamilial feuds, trespass and other land matters and personal injury. Settlements include business closure, exile of family members from the village, and diya or blood money, which is an amount paid to the victim's family by the perpetrator's family. Diya is a pre-Islamic custom that has also been incorporated into Islamic law and is awarded by Palestinian religious courts as well, as indication of the intertwining of custom and religion. The settlements are sometimes published in newspapers.

Custom could be utilized as an asset to democratization through building upon such principles as respect for authority and tradition. The polity might obey those in authoritative positions, particularly if from traditional sources of power. Customary law stresses conciliation and mediation, which are both processes that may assist the peaceful resolution of disputes within a democratic framework. Thus customary law mediation might enhance an overburdened civil law court system. Even today, "judges in the civil courts generally appear to tolerate the competing systems, sometimes even consciously accommodating [customary law] by delaying actions in a case while awaiting a sulh [settlement]."

The negative aspect of this factor is that blind reliance on traditional authority is anti-democratic. There needs to be respect for new voices from nontraditional sources, whether they be women, youth, or others. Palestinian decisionmakers must make careful analyses of the role of custom and decide how to reinforce custom where appropriate and when to obviate it. Programs will have to be developed to encourage and train nontraditional actors to participate. For example, secondary school girls and boys need exposure to civics. Many women will have to have child care assistance to allow them to participate in activities outside the private sphere. The new customary law mediators might include younger people and women, in a deviation from traditional practice.

Religion, like custom, is an important component of identity in the Palestinian community. For Muslims, the sharia, which is the Islamic law found in the Koran and other sources, provides rules that govern daily life. The sharia is a comprehensive code of behavior that embraces both public and private conduct, and theoretically governs crimes, torts, contracts, trusts and estates, and family law. In the Occupied Territories, Islamic law is administered by sharia courts, which have decided disputes on matters of personal status (marriage, divorce, child custody, alimony) and inheritance, since the eighteentcentury. Courts may award diya as well, which is less for injury to a woman than a man. The Supreme Islamic Board (al-haya al-islamiyya al-uliya) located in East Jerusalem de facto supervises the sharia courts of the West Bank, even though it is not recognized by Israel. There is an appeals court for Gaza in Gaza City. Cases are heard in Arabic, often without the assistance of lawyers. Judicial determination is fairly rapid; most cases are decided in two months time.

Additionally, urf, as long as it does not contradict the sharia is valid for the purposes of interpreting the Koran. For example, the Koran says a man must maintain his wife, but does not specify the amount. This is determined by custom.

The religious elements who are not fundamentalists can be a major asset for democratization. The U.S. example shows that the church often exhorts its members to endorse certain government programs and candidates. The Palestinian Christian and Muslim leaders and adherents can all become involved in the secular democratic processes and encourage religious and/or moral positions in the legislative process and with respect to certain programs.

The rise of fundamentalism in the region, as exemplified by the growth of Hamas in Palestine, presents major challenges for attempts at democratization. While all political groupings should be represented, if they so choose, in the upcoming elections, what should be done about forces that are inherently anti-democratic? If Hamas boycotts such elections, then how representative can the new government be? If fundamentalist forces prevail, should they just be permitted to take power - even if the goal is an Islamic state of a nondemocratic nature. Even if they do not win, if fundamentalists constitute a significant minority, they can prove a major disruption. Is this the price of multiparty democracy? Palestinian decisionmakers should encourage Hamas to participate in the electoral process. It is far better to incorporate dissenting voices within a democratic framework than to have them outside as revolutionary forces interested in overthrowing the government.

Decisionmakers must consider whether they want a separation of church and state to the degree evident in a society like the United States. For example, there might be no funding to religious run schools unless they adhere to certain nondiscriminatory criteria. Would this mean, for example, that boys and girls could not be separated? Or would they adopt a policy of separate but equal schools for boys and girls. Religious law itself can be a hindrance to democratization since it sanctions the differential treatment of women on the basis of gender. This difference can immediately come into conflict with constititutional norms that stress the equality of men and women. This dynamic will be discussed in Part IV.

The Ottoman land law is a major hindrance to democratization. These ancient convoluted policies make it difficult to sort out who actually owns property, and have been utilized by the Israelis to confiscate Palestinian land. How will the dispossessed be compensated for the loss of their land? Adopting a new land law cannot merely involve placing some people back on some land, since this may overcompensate the more well to do families who previously owned such land. What about the 1948 refugees with claims to land in Israel, or those with several generations in a refugee camp. Placing them on land reclaimed from Israeli security laws may yield protests from those with claims under Ottoman law.

The Jordanian and Egyptian civil law pose similiar problems to the Ottoman land law. Those rules still in use constitute a hodge podge of old standards that may be outdated and superseded in their countries of origin. The Israeli administered civil courts have lost whatever legitimacy they once may have had due to inefficiency and corruption. Since a respected independent court system is a vital component of democracy, creating vital institutions out of the current rules, institutions, and processes will be a major challenge to be faced.

The British Mandate emergency regulations of 1945 and the Israeli military laws constitute a special impediment to democratization. Palestinians have been subjected to curfews, expulsions, house demolitions, and a wide variety of other violations of international law. Due to the Occupation, the Palestinian people have thus been denied their basic international human rights. In numerous books, articles, and international resolutions, the desire to achieve those rights has been expressed. These aspirations are an asset to the democratization process because there will be great desire to create a system in which human rights of all can be fully implemented. This burning desire will create a certain amount of internal good will for the fledgling government.

Unfortunately, because such desires are often impossible to fulfill by hard pressed governments, the aspirations may serve as a hindrance as well. For example, although the draft Basic Law abolishes the security regulations, the new government may decide to keep them due to the numerous hostile forces. There are many who find such laws antithetical to human rights norms. How can the very people who suffered under such laws in the past inflict them on their own people?

Palestinian decisionmakers can deal with the human rights aspirations by making sure that they are included in the final version of the Basic Law and later constitution, and that those documents comply with international human rights norms. Many countries that could be considered democratic have security laws, ranging from the U.S. to Zimbabwe. A study could be done on issues such as security laws, death penalty, women's rights, etc. where issues of compliance with international norms may be called into question.

The final layer of the complex legal regime of Palestine concerns changes wrought by the intifada, which has had a significant influence on Palestinian society. The occurrence of the intifada could be an asset in the democratization process due to the shake up that has taken place in traditional ways of doing things. Changes have occurred in terms of the legal decisionmakers, rules and processes involved. The intifada represented an embryonic attempt to gain control over Palestinian society in a broader way than any previous period of the occupation. The skills utilized in this gestational attempt at self rule may help in the upcoming period. For example, people involved in the popular committees, underground leadership or other roles will now be able to use their talents in an above ground manner.

The negative aspects of the intifada, however, may prove a hindrance in the autonomy period. The loss of legitimacy and confidence in the leadership, rise in gangs, and attacks on other Palestinians may prove difficult to curb, particularly in intifada generation.

Having concluded a brief survey of the multi-layered legal regime, it is evident that any democratizing efforts must take into account the pre-existing legal system. Yet there is not even a complete up to date compilation of all the laws in effect. There is no law school, and no central law library or law professors. There is no body of constitutional law since Palestine has no pre-existing constitution.

This lack of constitutionalism might be an asset in the democratization process since the High Legal Commission does not have to take into account the impact of the prior constitution. The down side of this is that the drafters will still have to figure out the impact of the complicated legal regime on any constitutional principles proposed. For example, the draft Basic Law says there can be no discrimination on the basis of gender. What impact does this have on the aspects of urf, sharia, family law, and inheritance law that sanction the differential treatment of women? These issues will be further discussed in Part IV.

Palestinian decisionmakers can deal with these challenges for democratization through the creation of an advisory committee, that includes foreign constitutional scholthat have expertise in dealing with the constitutive problems of new nations. For example, I have served as a legal advisor for several years for the African National Congress Constitutional Committee as it developed a variety of documents examining its own evolving principles on constitutional issues. They produced several versions of a draft bill of rights and documents for public consumption such as What is a Constitution? The ANC had the advantage however of several law schools to draw expertise from and to base its operations. South African constitutional scholars such as Albie Sachs, Kader Asmal, and Dullar Omar should be approached for assistance, along with U.S. based scholars such as Professors John Quigley, and Francis Boyle. The ideal individuals to approach are those with knowledge of Palestine as well as with their own domestic constitutional law, and comparative constitutional law. The advisory committee needs to get started immediately with its deliberations so that it would have proposals ready by the middle of the autonomy period. There should be a variety of efforts to achieve input from the general public as well.

There will also have to be numerous studies undertaken by the High Commission and others to determine which laws need to be revoked or amended and which new laws, including constitutional ones, need to be implemented, to unify the legal system in a democratic fashion. The potential impact of all these changes needs to be carefully assessed. Dr. Ghassan Faramand, Chair of the Technical Committee dealing with Legal Issues has announced the need to initiate the publication of a Palestinian Official Gazette to disseminate laws and regulations.

In conclusion, the various factors affecting democratization in Palestine will require close analysis by legal decisionmakers. Constitutional structures must be designed that will take account of these factors and enable the new government to function in a productive manner. As discussed in the next part, the draft Basic Law begins to delineate the contours of those structures.