PART III CONSTITUTIONAL STRUCTURES

This part briefly discusses the nature of the potential constitutional structures - executive, legislative, and judicial that might be considered in Palestine. To establish democracy, a nation must establish constitutional structures that provide for individual freedoms and guarantees, while giving the government the power to implement fundamental reforms and social reconstruction. There must also be concern for the structures that generate abuses such as the police and military, bloated bureaucracies, imperial presidencies, rubber stamp parliaments and subservient judiciaries. The most eloquently written document is doomed to fail if the constitutional structures established are not adequately monitored by those groups from the civil society that can promote the awareness, assertion and protection of rights and duties.

Constitutionalism and democracy have not been achieved in the Middle East region, and governments face a persistent crisis of legitimacy. There are traditional absolute monarchies such as Saudi Arabia and the Gulf States; limited or constitutional monarchies such as those in Morocco and Jordan; and military/single party dictatorships such as those in Iraq and Syria. In the Middle East, there exists the

patrimonial state, with highly personalized authority; state property scarcely separated from the [ruler's] personal assets; the conversion of the bureaucracy into and extension of the [ruler's] household; the undermining . . . of the judiciary so that justice is seen to flow from the [ruler]. . .Celebrations of the goodness and greatness of the [ruler] (equally mandatory in the public and private sectors) replace other forms of legitimacy.

Some leaders are liberalizing the governing structures by opening up a few outlets for expression and opinion, and by slightly limiting the arbitrary exercise of power. Experiments in democracy were attempted in Egypt, Jordan, Kuwait, Turkey, and Yemen. True democratization, however, including popular political participation and freely contested elections, is not occurring. The incipient opening in Algeria was stopped with a coup, when the military called off the second round of elections after the Islamic Salvation Front (FIS) won the first round in December 1991. The Tunisia democratic experiment was reversed as well when the regime instituted multiparties in 1988, but continued to oppress Islamists. Syria's President Hafez al Assad won reelection by 99.99 percent in 1992 in an uncontested vote. The 1962 Kuwaiti Constitution only provides for suffrage for males who can prove that their ancestor was in the country prior to 1920, effectively excluding the majority of the population.

The draft Basic Law of the Palestinians is to embody the preliminary structures of their emerging state. Dr. Al-Qasem has stated that the aim is to establish a democratic parliamentary system with free political parties and political expression, due process, and "where the rule of law is respected by all." In order to meet a need to engage in consultation with those inside the Occupied Territories, Dr. Al-Qasem has traveled there to discuss the draft Basic Law. He hopes to finish a final version by March 1994. This document would hopefully take effect even prior to the 1994 elections, and then stay in effect during the interim five year interim period. It is anticipated that the PNC will approve the Basic Law.

In drafting the Basic Law, Palestinians must confront the inevitable tension between the demands of democracy and Islam. Dr. Al-Qasem has stated that "the influence of the sharia would be limited to the general principles of law which are recognized in any legal system." There will not be an Islamic state, as in the Sudan, Saudi Arabia or Iran. Western secular law has displaced the sharia in most of the Middle East countries, especially in the constitutional and public law areas. This has caused tension because Islam is not only a religion, but a way of life, whereas a democracy is based on the concept of majority rule rather than on God's inspiration. "It is clear that the fundamentalist challenge facing Islamic constitutional theory is how to transform the traditional concept of personal religious legitimacy of political power into conceptually and effectively limited institutional authority." This theory requires the implementation of the mechanisms and institutions for governmental accountability. Such accountability can be achieved, for example by making the Koranic notion of shura, a leader's consultation with his people, a binding principle of a representative government, rather than merely discretionary. Given the difficult conditions in the Middle East region, the Palestinians have few local role models to follow to structure their constitutional divisions of power. A look at potential legislative, executive, and judicial options follows.

A. Legislative Branch

The PLO-Israel Accord of September 1993 provides for the establishment of the Palestine Interim Self-Government Authority, which will serve as an elected council during autonomy. The Council will have authority over education, culture, health, social welfare, police, taxation, and tourism, and will be empowered to legislate in those areas. Both Israel and the Palestinians will jointly review laws and military orders in the remaining spheres.

I recommend that the proposed legislature remain unicameral, since there are only two million people. New Zealand and Israel have similar population sizes to Palestine and have unicameral legislatures. Initially potential office holders could run at large as is done with the Israeli Knesset. Running for office based on narrowly defined geographic constituencies at this point would be divisive. The experience of South Africa in this regard may be instructive for Palestinians: South Africa has avoided the drawing of separate constituencies for the five year interim period in order tolimit the number of issues that must be confronted in the immediate future.

The relative success or failure of the design of other Middle Eastern legislatures may also provide Palestinians with some useful insights. For example, the 61 member Saudi Consultative Council is a purely advisory body with no real legislative authority. It can be dismissed by the King. The highest legislative authority remains the Council of Ministers headed by the King. The 1953 Egyptian constitution provided for a one­chamber National Assembly, with little control over the executive. All candidates for the 350­member National Assembly had to be nominated by the National Union, which was headed by President Gamal Nasser and three other officers who were authorized to veto the membership of any individual. In 1980, Sadat added a second nationally elected body, the Shura ­ an advisory council. The Shura's reponsibility was to convene annually on the anniversary of the Revolution to advise the President on matters of national importance. Clearly the Palestinians should not emulate a legislative body with only advisory powers beholden to the executive branch. One possibly attractive feature about the Egyptian model is that effort is made to include all classes of people in the National Assembly by setting aside seats for workers and women. Due to the unrepresented nature of women in public life, the Palestinians might want to set aside 10% or more of the seats for women.

The Lebanese experience provides some lessons for the Palestinians as well. Lebanon first became a constitutional republic in 1926 under the terms of the mandate awarded to France after World War I. The constitution remains the same, with various amendments, to this day. "The model followed was that of the French Third Republic, in which a president and cabinet are responsible to a bicameral legislature. After 1927, the Senate was joined with the lower house to form a unicameral Chamber of Deputies." The 1926 constitution established a system of checks and balances between the executive and legislative branches of the Lebanese native government. The President could appoint and dismiss all cabinet members, including the Prime Minister, and he could adjourn or dismiss Parliament under certain circumstances. Parliament chose the President and controlled finances. Both the executive and legislature could initiate legislation, could delay each other's proposals, although Parliament had the final word. No single electoral group could impose its will on the others (without substantial backing) because the electoral law provided for the the distribution of seats of the basis of religion. Relations between the Christians and Muslims were governed by a National Pact agreed to in 1943. This pact assumed that there was a Christian majority. Public jobs were distributed among the ministries according to an agreed upon ratio. This National Pact remained an unwritten part of Lebanon's constitution for the next fifty years. The earlier religious group balance has been upset as the Shi'ites have replaced the Maronites as the majority in the country. The Christians and Muslims continue to fight for control of the country. In 1992, Lebanon held national elections, but the turnout was very weak. The Maronites even boycotted the election. Palestinians may consider the Lebanese experience as a warning that the political composition of the population is not static, and that political power should not be distributed on the basis of religion. Thus flexibility must be built into the design of the legislative branch to allow political representation for the entire population regardless of which political faction currently holds the greatest amount of power. Palestinians may follow the Egyptian model of reserving a certain number of seats for minority political factions. However, a counterveiling concern at the present time may be the undemocratic nature of the present minority Islamic fundamentalist factions.

B. Executive Branch

The draft Basic Law leaves open the question of the composition of the executive branch. This will be determined by the new legislative council. It is unclear whether the executive will follow the Westminster model with a Prime Minister, or the U.S. model with a strong President. I would recommend a strong chief executive President directly elected and directly accountable to the populace based upon the U.S. model. There can also be a Prime Minister as well who is elected from parliament to manage government, based upon the French model. On the other hand, if there were the continued fear of potential dictatorship, the President could be the ceremonial figurehead, diplomatic representative, and symbol for the nation. The real administrative power could be left in the hands of the Prime Minister.

C. Judiciary

In most of the Middle Eastern nations the judiciary is ineffective or a rubber stamp to the executive branch. In some states like Saudi Arabia, since the Koran and its teachings are the constitution, government appointed clergy are the nominal arbiters of constitutional matters. It is the King, however, who retains the real power. In the former Yemen Arab Republic (North Yemen) all judges had to be chosen from among the "religious scholars" (ulema) of the nation.

The draft Basic Law provides for a new Supreme Court, with the power to invoke judicial review of the constitutionality of legislation. There will be administrative courts as well. The entire judiciary will be revamped and become an appointed one in which there will be guarantees of independence and tenure. A high judicial council will be created to be in charge of appointment and promotion.

In conclusion, many structural issues remain to be addressed by the Palestinians. A rough survey of Middle East and other developing world nations might be appropriate for constitutional guidance concerning what structures should be adopted. In their efforts to design and implement constitutional structures, Palestinians should carefully balance the demands of religious and public institutions. If the demands of these institutions cannot be harmonized, discord and idelogical battles between the different political and religious factions are likely to ensue.