HOME Legal Reform, State Building and Decolonisation

Legal Reform, State Building and Decolonisation

Since established, the Palestinian Authority (PA) has enacted legislation to regulate various political, economic, social and cultural aspects of the Palestinian society. The plethora of Palestinian legislative activity has created a legislative revolution. Many scholars view this activity as a nationally-owned legislative reform that safeguards necessary pillars of the prospective Palestinian State. On the other hand, others severely criticised PA's active legislative conduct for several reasons, including absence of legislative policies and plans, unavailable requirements necessary for the Palestinian legislative environment, non-prioritised social needs, etc.

The Palestinian legislative process is supposed to be in line with societal mobilisation and to meet public expectations and needs related to emancipation from the colonial regime as well as its respective political and legislative consequences in all societal fields. Within the framework of the general goal of legislation, the legislative process should also guide relevant activity towards decolonisation and state building. As such, legislation will have a strategic goal with decisive, existential dimension that preserves identity and self in a Palestinian nationally-owned perception. The later will emanate from public will and will be void of colonial avarice and interests, which have been well-established through Israeli military orders.

In light of regulations applicable in advance, some scholars believe that the legislative process launched by the PA has in itself been a process of legislative reform in the general sense. Of course, details of each single piece of legislation are not highlighted in this context. However, the sound proposal of the legislative reform concept must rely on well-defined criteria from within the goal of legislative process. In line with relevant, recognised scientific and objective evaluation methods, the social impacts and by-products of produced legislation should also be measured in order to assess the extent of progress made over the pre-legislation and post-legislation phases.

The study on Legal Reform in Palestine: Decolonisation and State Building casts light on legal reform through legislation in the West Bank and Gaza Strip. It also falls within a critical context that assesses how successful the reform process has been as to overcome colonial rule and serve the objective of building an independent Palestinian State on the 1967 border on grounds of respective international resolutions and approval of the Palestine Liberation Organisation (PLO) thereof.

Scope of the Study
This study on Legal Reform in Palestine: Decolonisation and State Building is restricted to searching the legal reform process by means of legislation since the PA has assumed legislative powers. It falls in the framework of colonial legal structures created by Israel in the West Bank and Gaza Strip. The research activity in this study ends with the period preceding the second Palestinian legislative elections in January 2006, in which Hamas won the majority seats at the Palestinian Legislative Council (PLC). Therefore, the study does not address the change introduced to the Palestinian political system following the 2006 legislative elections or its impact on legal reform and state building in Palestine.

Questions Posed by the Study
The study raises, as well as attempts to answer a number of questions, including:
Is legal reform tenable before the state building stage?
Does the PA's legislative endeavour represent a legislative reform?
Is the law-making process unbiased, or does it express interests of legislators?
Has the legislative process served the target of decolonisation and state building in Palestine? Or has it reproduced the colonial pattern?
Where does the legislative process launched by the PA lead: to building a State or building peace?
What is the nature and features of such a State, if constituted?
Does this process safeguard Palestinians' collective rights, such as the right to self-determination?
Which actors are involved in the process of legal reform in Palestine?
Has the PA succeeded in renewing the social contract so as to achieve the public will?
What is the relation between law-making and political, economic and social hegemony exercised by the dominant elite?
What requirements and strategies are proposed to ensure achievement of legal reform goals?

To define the relation and interplay between legislation, legislators and dominant elites as well as various segments and institutions of the society, the study combines more than one recognised academic approach. It relies on descriptive, analytical and inductive approaches. To ensure access to scientific conclusions, the study also adopts an objective, critical methodology.

In addition to general methodologies, Chapter II employs field research techniques in order to monitor trends and opinions of the first PLC members as a closed survey relating to several issues raised in the said chapter.

Having restricted the reporting period to that preceding the second legislation elections (i.e. from constitution of the PA in 1994 towards constitution of the second PLC), the research team has verified several issues, particularly those pertinent to the assumption that PLC is prone to internal and external factors as it embarks on law-making activities. To render this task successful, the research team also examined impacts on the processes of state building, legal reform, law's ability to introduce the required change towards state building, or at least towards laying the cornerstone for such a State. In this course, the team prepared and distributed a survey to all 88 members on the first PLC, highlighting inquiry about such influences.