An Unconstitutional Hangover?

An Analysis of the Current Palestinian Basic Law in Light of Palestine's Constitutional Heritage

The Palestinian Basic Law (“BL”) was released with much fanfare, optimism, and promise. Indeed, the BL was said to signal the dawn of a new Palestine state: it was hailed as a building block towards Palestinian self-determinism and used as an example to showcase progressive diplomacy with Israel. Since the birthing of the BL at the Oslo Accords, however, the onset of constitutional crises over the past fifteen years—namely the international intervention in 2003, the death of Arafat in 2004, and Hamas-Fatah clash in 2007—the BL today is viewed rather cynically, as “a document not worth the paper it is written on.” The BL has thus come under scrutiny from numerous scholarly angles that have tried to explain why the BL has failed to reach its lofty expectations.

This Article seeks to follow the process that lead to the drafting of the Palestinian BL, an angle which shows that the BL did not need much comparative or theoretical analysis to highlight the gaps it had, the actual process was leading to a certain executive concentration of powers. The history that led to the creation of the BL, however, consists of many direct and indirect factors. Combining these factors indicate that the current dilemma created by the BL during Hamas-Fatah clash was expected. Executive concentration of powers, which was strengthened by the BL, is a common phenomenon that Palestinian constitutional history experienced in the previous documents governed Palestine.  It is indeed, through combining all factors sit directly in front of scholars: the Oslo Accords, other Arab State’s Constitutions which affected the BL drafters’ mentality, and past Palestinian Constitutional struggles. It is these factors, and imposed circumstances on the Palestinian people, that created the flaws, and ultimate failure, of the Basic Law as a constitutional document.

The full text of this Symposium is available to download as a PDF.