The Palestinian Experience in the Legislative Process between Reality and Aspiration

As part of Birzeit Legal Encounters and in cooperation with the Faculty of Law and Public Administration, the Institute of Law (IoL) at Birzeit University held a legal encounter on the Palestinian Experience in the Legislative Process between Reality and Aspiration on 27 October 2008. Commending his outstanding role in the legislative process in Palestine, IoL hosted Advisor Abdul Kareem Abu Salah, Head of the Palestinian Bureau of Legal Counsel and Legislation.

Having welcomed the speaker, Dr. Khaled Talahmeh highlighted the recent Palestinian experience in the field of legislation. The Palestinian legislative process has suffered from several impediments and crises. Currently, this process is also challenged with shortfalls and deficiencies. Dr. Talahmeh inquired how Palestinians could learn from lessons resulting from the real, multifaceted Palestinian legislative experience. Emphasising the special nature of the Palestinian context, Dr. Talahmeh explained that the Oslo Accords have entitled the Palestinian Executive Authority with legislative powers. After 1996, the Palestinian Legislative Council (PLC) has taken over legislative powers. As such, Palestinians are now experiencing a third phase of legislative activity.

Regarding the framework of the Palestinian legislative process, Advisor Abdul Kareem Abu Salah expressed his deep sorrow for performance of the second PLC, which should have corroborated efforts made by the first PLC term. The second PLC should have also built on the first PLC's legacy, including enhancement of legal principles and essential components of legislation in Palestine. According to Abu Salah, the second PLC was born dead. It was inaugurated under hard, complex circumstances. Abu Salah expressed his wish that such circumstances that hinder PLC's smooth function would vanish. Ultimately, an integrated Palestinian constitutional system will be in place as to establish a nucleus for the future Palestinian state. Constitutional legitimacy will also replace revolutionary or any other legacy.

Highlighting the confusion surrounding Palestinian parliamentary experience, Abu Salah explained preliminary phases of the first PLC's operation. Following the 1996 legislative elections, not a regulation governed operation of the PLC. Then, Palestinians did not possess regulatory legislation that helped PLC perform its assigned mission. In this context, the PLC had first to regulate parliamentary sessions. To a limited extent, PLC's working relationship with the Executive Authority, which had been established beforehand and enjoyed powerful relations, was also to be organised. In reality, leaders of the Executive represented the historical leadership of the Palestinian people; they combined a revolutionary legitimate status that won Palestinians' appreciation and respect. Compared other political systems, the Palestinian presidential leadership also exerted a strong influence and enjoyed a special, unique nature.

Though challenging, Advisor Abu Salah explained that PLC managed to develop relevant Standing Orders that regulated PLC's various functions and committees. In accordance with the Elections Law No. (13) of 1995, PLC devoted a notable effort to develop a Basic Law, which would regulate the government regime during the interim period. Following four amendments, essential components of the Palestinian Basic Law were set forth. At first, the Basic Law was developed by the Palestinian National Council. Later, IoL took over the responsibility for developing this Law in cooperation with Mr. Anis al Qasem and Dr. Eugene Qatran. As a first mission and test on exercising legislative tasks, the Draft Basic Law was presented to the PLC for discussion. At that time, it should be noted that the legislative function was in conflict with the Executive Authority, then chaired by the late President Yasser Arafat. As a draft submitted by the Government, the Palestinian Minister of Justice, then, presented an amended version of the Draft Basic Law to the PLC. However, PLC had to cope with the problem of defining powers related to developing the Basic Law as the PLC Standing Orders did not entail respective regulatory provisions.

With respect to when the Government could withdraw a draft law presented to the PLC, Advisor Abu Salah explained that the PLC Legal Committee is entitled to restore the draft law in question within the same legislative term in case it is not approved in a general discussion at the PLC. The Government can redeem the draft law as long as it is not endorsed in the general discussion. In effect, the Palestinian President obliged the Minister of Justice to withdraw the draft law.

Additionally, Abu Salah addressed major phases of drafting the Basic Law. In particular, he explained the classification and sorting of chapters under the Law. In this context, Palestinian legislators had to answer the following questions: "What do we want from the Basic Law?"; "What is the government regime that we need?"; and "What are the major issues that need be incorporated in provisions of the primary law (the parent law)?".

Abu Salah also compared the Palestinian legislative endeavour to neighbouring Arab legislative systems, including those of Jordan and Syria. Highlighting classified titles, Abu Salah also made clear general provisions prescribed by the Palestinian Basic Law. In the Introduction to the Basic Law, the PLC Legal Committee emphasised the Arab character of the Palestinian people as well as its inherent connection with the Arab nation. In line with other basic laws and constitutions, the introductory section of the Law also highlights that Historic Palestine is part of the larger Arab World and that Jerusalem is the capital of Palestine.

Furthermore, Abu Salah addressed general principles provided by the Palestinian Basic Law. Also, he made a detailed presentation on the Law's primary principles, including issues of sovereignty, Palestinian nationality, and Palestinian flag. In this context, principles under Title Two regulate public rights and freedoms. In particular, Article (32) has been drafted to curb transgressions and violations of "any personal freedom, of the sanctity of the private life of human beings, or of any of the rights or liberties" that have been guaranteed the Basic Law.

Addressing issues of legislative consistency, legislative vacuum, and management of the legislative process, Abu Salah highlighted relevance of a clear legislative policy that helps translate the Palestinian society's needs and rights into clear, congruent laws. Unfortunately, however, former Palestinian governments faced several predicaments, including – but not limited to – lacking laws that regulated government's role and need to approve the Basic Law, which posed a challenge to the Palestinian legislature. In addition, Palestinian governments have not developed clearly-demarcated legislative priorities. For example, a former government submitted a draft law on animal care despite the fact that the Palestinian legislative environment lacked substantial, primary laws in this area.

In conclusion, Advisor Abu Salah highlighted that the second PLC should convene. If still absent, the Palestinian legislative process will be impaired. The legislative effort carried out by the PLC also needs to match endeavours of governmental institutions. Moreover, a unified framework and concept should regulate the legislative system in Palestine. Though governed by a theoretical regulatory framework, legislative mechanisms are practically unsystematic.