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Constitutional Framework and Political Institutions

Independent Task Force Report
Strengthening Palestinian Public Institutions

June 28, 1999

Council on Foreign Relations

 

Introduction

This section addresses the public institutions that constitute the principal elements of the Palestinian political system in the West Bank and Gaza Strip. Referred to here as “political institutions,” they determine the overall purpose, program, and policy of government, as well as the budget, structure, and regulatory framework of public administration. The political institutions consist of the executive authority, comprising the presidency and cabinet, the Palestinian Legislative Council, and the judiciary.

The first purpose of this section of the report is to assess the constitutional framework within which the three branches of government fulfill their primary roles. Constitutionality is a sine qua non of democracy and citizens’ rights, and a fundamental element for the promotion of good governance. The report therefore addresses the separation of powers, clarity of mandates and delineation of authority, and checks and balances within the system.

The second purpose of this section is to assess the capacity and performance of the political institutions. It does so with particular reference to:

 

Constitutional Framework

Context

The Palestinian Authority has operated since 1994 in a constitutional framework characterized by multiple, changing, and often contradictory legal sources. The accords signed with Israel, starting with the Cairo Agreement of May 1994, defined the initial structure and powers of the PA, as well as the areas of functional responsibility that were to be immediately transferred to it by the Israeli military government in the WBGS.

However, for the purpose of setting the context within which the PA has sought to establish its constitutional basis, the most important accord is the Interim Agreement of September 1995. This provided for the establishment of a “Palestinian Council,” which was to assume the responsibilities already transferred to the PA in addition to new ones now transferred from the Israeli military government. The council was to have legislative, executive, and judicial powers and responsibilities, and was empowered to issue a Basic Law delineating them. A committee drawn from the council would exercise executive authority on its behalf, while the council would legislate and perform oversight functions over policy and the budget. The president, to be elected separately, would propose the members of the executive authority to the council for approval, and would also be an ex officio member of the executive authority. The council would have within its jurisdiction an independent judicial system.

The Palestinian Council has come to be known as the Palestinian Legislative Council, while the executive authority is known as the Council of Ministers or cabinet. The PLC, presidency, and cabinet, together with the judiciary and the ministries and other operational institutions, are taken collectively to form the PA. The absence of a Basic Law or other constitutional document has led to continuing legal ambiguity about the precise powers and responsibilities of each branch of the Palestinian government.

Given this ambiguity, two other sources of political and legal authority have affected constitutional arrangements in the WBGS. One is the PLO, which concluded the various accords within the Oslo framework to date and is responsible for negotiating the final status of the WBGS with Israel. Its legacy is mixed. On the one hand, it has bequeathed to the PA the foundations of a constitutional framework. In 1988, the Palestine National Council (the PLO’s parliament-in-exile) committed itself to the establishment of an independent state based on a “democratic parliamentary system,” freedom of expression, equality, a constitution, the rule of law, and an independent judiciary. On the other hand, the confusion of mandates and overlap of authority between PLO and PA institutions has impeded transparency, accountability, the rule of law, and other elements of good governance.

Most importantly, the PLO and its constituent parts—the Palestine National Council, Central Council, Executive Committee, and Chairman—are imbued with a higher degree of legitimacy and authority than the PA and its institutions: the PLC, cabinet, and president. The legitimacy, authority, and tenure of the PA are derived from the Declaration of Principles and at the same time limited by it. The end of the stipulated Interim Period in May 1999 has therefore complicated even further efforts to strengthen and reform PA institutions by placing them on a clear constitutional basis. Indeed, in April 1999 the PLO Central Council decided to prepare a new, provisional constitution in anticipation of statehood, potentially superseding arrangements already in force or under consideration for the PA.

The other source of legal authority affecting constitutional arrangements in the WBGS is the extensive mixture of laws and legal traditions in force. In Gaza this consists of the Anglo-Saxon common law tradition, as applied by the British Mandate up to 1948, and elements of civilian and military law in force during the period of Egyptian administration up to 1967. The legal system in the West Bank is derived from the Napoleonic tradition and the introduction of Jordanian law in the 1950s and 1960s. In both areas the Israeli military government introduced further modifications in the form of military orders. The PA has also invoked the British Defense and Emergency Regulations of the 1930s and 1940s when setting up the state security courts, although it has not recognized the regulations to be in force. The Interim Agreement of 1995 allows the abrogation of existing laws and military orders by the PA, as long as the change does not violate the terms of the agreement. This legal mixture continues to complicate the delineation of powers and responsibilities among the branches of Palestinian government.

Achievements

In 1997, the PLC approved a Basic Law in its third and final reading, following an extensive debate in full view of the Palestinian public and with the participation of civil society bodies. The draft provides for a parliamentary democracy based on the rule of law and some separation of powers. It affirms basic civil rights and freedoms, and seeks a strong legislature directly elected by the people and entrusted with the tasks of legislation and oversight of the executive. The members of the legislature are to enjoy immunity. They also have the right to grant and withdraw confidence in the executive, and to review and approve its proposed budget. The draft Basic Law upholds the independence of the judiciary, and stipulates the establishment of a higher judicial council responsible for the management and oversight of the judicial branch. It also calls for the establishment of a high constitutional court, and gives the PLC a role in approving the executive selection of the attorney general or public prosecutor.

The draft Basic Law also seeks to institutionalize safeguards against violations of citizens’ rights. The presidential decree that created the Palestinian Independent Commission for Citizens’ Rights soon after the establishment of the PA provided an ombudsman as an additional safeguard. An independent judiciary provides further guarantees, while proposed laws dealing with political parties, nongovernmental organizations, press freedom, and other issues potentially provide further protection.

Although it has yet to be promulgated by PA President Arafat, the fact that the draft Basic Law provides guarantees of constitutional rule in the WBGS represents a significant departure in Palestinian political practice. It also marks a departure from most Arab constitutional experience by providing checks and balances to executive power, as well as mechanisms to ensure implementation of accountability. Failure to promulgate the Basic Law by the end of the stipulated Interim Period has placed its status in doubt, but it nonetheless provides an important starting point for any future constitutional document.

Challenges

Though some progress has been achieved, the Palestinian political system still suffers from a distinct lack of clarity regarding constitutional rules and roles. It is inevitable that constitutional arrangements in a transitional system should be subject to political contest and negotiation. In this case the overlap of PLO and PA institutions has further confused the issue. PA cabinet meetings have been replaced by weekly meetings of the “Palestinian leadership,” a loosely defined gathering of the president, cabinet ministers, PLO Executive Committee members, the PLC Speaker and his deputies, and heads of the negotiating teams. Thus, a forum that is not accountable to the PLC or other PA bodies currently makes policy decisions affecting the PA.

Legal ambiguity about constitutional powers has also weakened the PLC and confused its relationship with the executive authority. The PLC is supposed to be the body that determines overall policy and approves the budget, and thus provides oversight of the cabinet. In practice, however, government policies are formulated, implemented, and assessed by the executive authority alone. Individual ministers have often agreed to attend PLC committee hearings and answer questions, but the executive authority has no clear obligation to do so, and other ministers have refused to appear.

Accountability, especially of the executive authority, has equally suffered. In the absence of a Basic Law, PLC bylaws lack clear provisions to ensure and regulate a system of accountability. Moreover, the PLC has failed to use votes of confidence as an effective tool to bring the executive authority to account, and therefore lacks a credible mechanism for enforcing its decisions.

The absence of a constitutional court or similar authority prevents proper resolution of disputes of interpretation between the executive and legislative branches. Lack of an independent judicial oversight body has allowed the executive authority to apply inherited laws selectively. These include the British Emergency Regulations of 1945, which allow it to suspend civil rights and due process. The same constitutional flaw removes legal restrictions on the possible use of emergency rule by the executive authority.

Indeed, in the absence of a Basic Law, the existing constitutional framework as shaped by the Interim Agreement of 1995 maintains ambiguity concerning constitutional protection of citizens’ rights, which are not formally codified at present. The executive authority has failed repeatedly to enforce court decisions, including those issued by the Supreme Court, relating to violations of human rights and civil liberties committed by the police. In many cases, persons released after unlawful arrest have been rearrested. The PA has invoked the British Emergency Regulations of 1945 to justify creating the state security courts, but its refusal either to confirm or refute their applicability makes human rights violations possible while simultaneously complicating legal defense.

Constitutional ambiguity has also allowed an extension of executive power in relation to civil society organizations. Following the failure of early attempts to impose a restrictive law governing the registration and operation of NGOs, the executive authority adopted a cooperative approach. However, a more equitable draft law passed by the PLC has yet to be promulgated by the president. The General Intelligence Directorate and the Ministry of Interior have continued to make separate attempts to compel NGOs to report to them. There is also a continuing dispute between the Ministries of Interior, Justice, and Social Affairs over which should register NGOs. And the president has intervened in the operation of civil society organizations, such as the bar association, by appointing their heads and board members.

The extension of executive power has gone hand in hand with restrictions on freedom of expression, in particular through the various public media. To its credit, the PA does not apply formal censorship of the press, nor does it have an official censor. Yet the Palestinian press has been subjected to intimidation by PA security agencies and to commercial pressures, resulting in self-censorship. The Ministry of Information must approve media applications before issuing licenses, and several newspapers and radio stations have been closed down by the executive authority for varying lengths of time for expressing undesirable political views. Donors ceased giving aid to the Palestinian Broadcasting Corporation because it failed to ensure pluralism in coverage and access. The General Intelligence Directorate has established a Bureau of Press Information that monitors foreign media and seeks to control their accreditation in the WBGS.

The record since 1994 indicates that as the political system has evolved, it has concentrated power in the hands of the executive authority, particularly the president. The legislature and judiciary are marginalized, and basic civil rights and freedoms are not fully and formally protected. The end of the stipulated Interim Period only makes it more imperative that the Palestinian people define their constitutional framework.

Recommendations

  1. The president of the PA should either promulgate the draft Basic Law as a whole, or at least promulgate parts of it and pass them into law separately. In the latter case the separate Basic Laws should govern the legislative process, independence of the judiciary, and citizens’ rights. The end of the stipulated Interim Period and transition to the permanent settlement need not affect this, as basic constitutional principles should remain unchanged.

  2. The PA should establish a constitutional court, or suitably em-power the Supreme Court, to ensure that laws and systems are constitutional.

  3. The executive authority should clarify and delineate more effectively the PA-PLO relationship. PA cabinet meetings should be held separately from those of the PLO Executive Committee. PLO Executive Committee members or other PLO officials should not be empowered to act in ways that affect PA institutions, operations, or resources while remaining unaccountable to the appropriate PA oversight bodies.

  4. The PA should cease application of the British Emergency Regulations of 1945, and should seek to abrogate Israeli military orders that infringe on citizens’ rights, consistent with current agreements.

  5. In the absence of a ratified constitutional document, such as the Basic Law, the PA should consider passing a bill of rights to safeguard citizens’ rights.

  6. The PA should take active steps to ensure freedom of expression and freedom of the press. These include repealing the restrictive elements of the Press Law and removing the role of the security agencies in monitoring the media.

 

Executive

Context

By the end of the stipulated Interim Period in May 1999, the PA was responsible for political, economic, and social issues and for law enforcement relating to 95 percent of the Palestinian population of the WBGS, excluding the residents of East Jerusalem. Much of the structure and of the decision-making and policymaking processes of its executive authority had to be developed after May 1994, when the PA was established. The Interim Agreement of 1995 empowered the executive authority to determine its own internal procedures and decision-making processes. Its provisions concentrated considerable power in the hands of the president, who additionally wields U.S.-style presidential veto authority over the legislature. This power includes issuing legal decrees in all spheres, making appointments to the civil service and the police, establishing or dissolving public institutions, and disbursing public funds.

The executive authority, comprising the cabinet and the presidency, has additionally drawn on two other main sources: the Israeli-run Civil Administration and the PLO. In the first instance, the PA inherited many of the departments and agencies of civilian government from the Israeli-run Civil Administration, as well as their internal rules, regulations, and operating procedures. However, because Israeli officers headed the latter body at all decision-making levels, Palestinian civil servants in the WBGS lacked senior-level expertise. This applied in particular to policymaking, planning, and prioritization. It followed that Palestinian civil servants had no experience with the requirements of a functioning ministerial cabinet, nor with public administration development or legislating for social and economic development.

Secondly, the PLO bequeathed the PA considerable expertise in political management, but correspondingly little in social and economic management. On the one hand this imbued the PA with political legitimacy, allowing it to assume effective control of existing public institutions in the WBGS relatively quickly and to manage a largely disruption-free transition to autonomous Palestinian rule. On the other hand the PA inherited PLO executive norms and practices, many of which were authoritarian and have tended to impede good governance and effective public administration.

The PA therefore inherited a structure of government that in many ways was less developed than in other recent post-conflict situations. Besides the lack of previous experience of civilian government, it faced dilapidated public services and infrastructure and a collapsed judiciary in the WBGS, not to mention domestic and external opposition to the peace accords, and Israeli trade restrictions and border closures. All of these factors have had major implications for the PA’s ability to provide efficient public services and to promote a legal and regulatory environment that will support a free society and market. It has also had serious implications for the emergence of transparency, accountability, and other key elements of good governance.

Achievements

Despite difficult circumstances, the executive authority of the PA has achieved major successes in the five years since its formation. It has established a functioning ministerial cabinet; conducted general elections for the presidency and the legislature; delivered education, health care, and other basic services; revitalized tax collection; drafted enabling legislation and regulatory frameworks for the conduct of public administration and of private economic and commercial activity; extended local government by creating new municipalities and village councils; and maintained security and public law and order.

The executive authority carries out additional tasks. It assists in the negotiation of accords with Israel and supervises their implementation; negotiates agreements with external governments and multilateral institutions within the spheres prescribed to it by the Oslo framework; lays down and implements the general policies of the government; prepares and implements the general budget; proposes primary legislation to the legislature and promulgates it if approved; issues secondary legislation, including orders, decrees, and regulations; and supervises the public administration.

In terms of internal procedure and administrative practice, the Ministries of Justice and of Planning and International Cooperation have received assistance from the international donor community in acquiring the technical capability to draft, review, and analyze policies and legislation. This is important for the establishment of uniform rules and procedures for policymaking and exercising legislative functions by the executive authority.

Within the executive authority itself, the cabinet office has evolved incrementally in its key function of providing secretarial services to ministerial meetings. To this end it has set up seven functional units to coordinate policies between ministries in preparation for ministerial discussions. It also plays a role in planning the restructuring and reform of the public administration, along with the ministerial-level Public Sector Reform Committee (PSRC) and the Public Administration Development Unit (PADU). The international donor community has again provided useful technical support for the development of the cabinet office.

Challenges

The PA’s executive authority has faced challenges in three general areas:

Broadly speaking, problems have arisen in these areas since 1994, resulting from the acquisition of new functions without the human skills and technical capacity to handle them.

In the first instance, the PA cabinet has not been able to operate properly as a ministerial body able to define and implement policies that are consistent and clearly articulated. Its transformation into a “Palestinian leadership” that typically has forty-five people in attendance instead of the twenty to twenty-four ministers, has made its agenda too broad and lacking in focus on ministry needs. The fact that much of this leadership’s attention has been devoted to negotiations with Israel, foreign relations, and domestic political and security issues has further impeded policy formulation in the social and economic spheres. Moreover, senior ministers often have more than one job to do, leaving them with little time for internal management.

The cabinet has also been unable to submit the general budget to the PLC in a timely manner, despite the best efforts of the Ministry of Finance to prepare its detailed items punctually. The budget has been submitted later and later every year, and it lacks detailed breakdowns for the expenditure of various ministries and agencies. This adds to the occasionally strained relationship between the executive authority and the PLC. Although there has been some improvement in response rates, the executive authority has often been reluctant to comply with the PLC’s requests for information. Equally important is that the executive does not ac-knowledge the PLC’s right to monitor actual expenditures.

The cabinet’s internal operations are also in need of improvement, because the cabinet office still lacks experience and human resources and does not yet coordinate government policy effectively. This also affects its ability to provide the cabinet with strategic analysis of particular policy areas, and to shape and coordinate public sector reform.

Finally, cabinet practice is affected by informal factors, among them the domination of the principal PLO faction, Fateh, which is headed by PA President Arafat. Ministers who do not belong to Fateh may find it difficult to acquire budgets and other resources or to assert their authority within their own ministries without the president’s backing. In general, the executive authority operates according to a de facto, rather than de jure, division of labor, rules and regulations, and internal policy oversight.

In contrast to the weakness of the cabinet, the PA president wields extensive executive power. This is reflected in, among other things, the number and range of agencies attached directly to his office by executive decree. A sample list includes: the Council of Higher Education; General Personnel Council; Bureau of National Institutions; Higher Council for Health, Planning and Research Center; Palestinian Central Bureau of Statistics (PCBS); Water Authority; Energy Authority; Office of Public Information; General Control Institute (GCI); Environmental Authority; National Center for Studies and Documentation; Bethlehem 2000 Project; School of Talented Students; and Council for Tribal Affairs.

The president nominates the heads and a number of board members of these and other institutions such as the Palestinian Monetary Authority. He does the same for quasi-NGOs such as the Palestine Economic Policy Research Institute and the Academy for Scientific Research. He also personally heads government agencies such as the Water and Energy Authorities. In certain cases this undermines the role of government ministries. For example, the new Industrial Zones Authority answers directly to the president rather than to the Ministry of Industry. The overall result has been to increase the administrative burden on the presidency, while limiting the autonomy and performance of these institutions.

Just as serious are the extensive micromanagement activities of the president and some ministers. Bureaucratic minutiae, such as requests from civil servants and police officers for vacation leave, mission per diems, and petty expenditures, must all receive the president’s personal attention and approval. This goes hand in hand with a marked reluctance to delegate authority and a tendency to diminish the autonomy of government ministries and agencies.

Particularly serious for the timely and efficient operation of government is that the Ministry of Finance may not disburse approved budgets to ministries and agencies according to a fixed timetable, even after approval by the PLC. Rather, the ministers and agency heads concerned must seek individual approval from the president. The result has been liquidity problems, domestic borrowing, accumulation of arrears, and delays in service delivery.

The tendency toward greater centralization of executive authority is reflected in the relationship between central and local government. The PA has not granted genuine autonomy to lower levels of government. The new local government law passed in 1997 failed to relax central taxation or supervision, and imposed uniformity on municipal and village councils. The establishment of parallel administrative structures, such as the provinces headed by governors attached to the Ministry of Interior, and the failure to delineate powers and responsibilities clearly have further restricted local government.

Recommendations

  1. Reduce the number and range of public institutions currently attached to the president’s office. This would reduce the administrative burden on the presidency and thus strengthen its ability to formulate and pursue key policy objectives.

  2. The president’s office should devolve to the appropriate ministries and agencies all programs and projects that involve disbursement, but which do not relate directly and necessarily to the conduct of the presidency.

  3. The president’s office should delegate powers and authority that are not essential for its internal functioning or for the purposes of political and public macro-management.

  4. The cabinet should formulate, and adhere to, a plausible, consistent, and clearly articulated program for government. Ministers should be enabled to operate according to set tasks and budgets that are not subject to sudden or arbitrary change or to constant renegotiation.

  5. The cabinet should hold its meetings separately from other PA or PLO bodies, and on the basis of a clearly defined agenda.

  6. The cabinet should be further empowered to coordinate government policies, and more generally to oversee the development and reform of public administration and the public sector.

  7. The cabinet should submit the general budget to the legislature for review and approval in a timely manner.

  8. The cabinet office’s ability to tackle high-level issues of ministerial overlap, coordination, and communication should be strengthened in order to improve the government decision-making process.

  9. The PA should enhance the role of local government. To this end, it should act to set up municipal elections. It should also delineate re-sponsibilities clearly between the Ministry of Local Government (MLG), Ministry of Interior, police force, and municipal councils.

Legislature

Context

The 88-member Palestinian Legislative Council came into being as a result of the general elections of January 20, 1996. These were held in the presence of international and Palestinian observers, and declared generally free and fair. The PLC held its first session two months later, launching a new experiment in Palestinian parliamentary life.

Previous experience of electoral process on a national scale was erratic and varied. The West Bank took part in Jordanian parliamentary elections in the 1950s, while a limited electorate voted for the Palestinian National Union in the Gaza Strip in the early 1960s. The PLO established a parliament-in-exile in 1964, but its membership was largely appointed, with the exception of a modest number of delegates representing some PLO factions, trade and labor unions, and other social associations.

Still, the PLC is not completely unconnected to past developments. Its mandate was defined by the Interim Agreement of 1995 and further described in the Election Law issued by the PA later that year. Although the Election Law lays the basis for routine, periodic elections, the Interim Agreement provided only for the general elections of January 1996. The PLC’s mandate therefore nominally ended, along with that of the PA president, at the end of the stipulated Interim Period on May 4, 1999.

The Interim Agreement granted the PLC power to issue primary legislation relating to all areas and responsibilities except those not transferred to the PA. The agreement also prohibited the PLC from issuing legislation that was inconsistent with the provisions of the various Palestinian-Israeli accords or that abrogated existing laws and military orders in force. The Election Law imposed no further constitutional restrictions on the PLC’s power to legislate or to exercise oversight of the executive and judicial branches.

The PLC has operated in an extremely challenging context. Not least is the continuing ambiguity about its constitutional relationship with the executive authority. A further complication is its ambiguous relationship with the Palestine National Council and the PLO more generally. The PLC’s legitimacy and authority derive from an electoral mandate, but this is limited to the Palestinian people of the WBGS, including the residents of East Jerusalem. By contrast, PLO institutions, while not based on elections, nominally represent all Palestinians, both in the WBGS and in the diaspora. The PLO is the higher authority that concluded the accords with Israel by which the PLC came into being, and that formally constituted the PA. In 1996 the PLC rejected the executive authority’s assertion that the council is part of the PNC, but allowed PLO Executive Committee members to participate in its plenary debates, albeit without the power to vote on its decisions.

A second major challenge to the PLC lies in the Palestinian relationship with Israel. The final status of relations with Israel has yet to be clarified, preventing the PLC from legislating on a wide range of issues that remain subject to negotiation. In the meantime, Israeli restrictions on the movement of all Palestinians impede the operation of the Council and its committees. Many PLC members and staff have experienced long delays and some harassment at Israeli crossing points as they travel between the West Bank and Gaza Strip. 3

The division of PLC activities, facilities, and departments between the Gaza Strip and West Bank necessitates duplication of resources and extensive travel—PA civil servants going from the Gaza Strip to the West Bank, or vice versa, are often compelled to make the long and time-consuming circuitous journey through Egypt and Jordan rather than cross through Israel—and levels of coordination that would be difficult even for highly developed legislatures to attain. Continued Israeli control over much of the WBGS and their external borders also limits the PLC’s ability to address the needs of its constituents. 4

Nonetheless, the PLC has benefited from the consistent political backing and technical assistance of the international donor community. This has been instrumental in developing PLC capacity in virtually every regard, from legislation and oversight activities, through record-keeping and policy-relevant research, to administrative organization and procedures.

Achievements

Despite the restrictions noted above, the general elections of January 1996 represented an important step in the process of institutionalizing parliamentary life in the WBGS. The promulgation of the Election Law, establishment of a permanent election committee, division of the country into electoral districts, and conduct of free and largely fair elections in the presence of international observers contributed significantly to this outcome.

The PLC has been in existence little more than three years, but in this short time it has achieved much. It has issued its own bylaws or standing orders, organizing its internal affairs as well as its relations with the executive authority. According to the Interim Agreement of 1995 and its own bylaws, the PLC has the power to initiate, draft, and approve legislation, including that proposed to it by the cabinet. Since 1996 the PLC has approved 24 laws and submitted them for the PA president’s signature. This includes the Basic Law, which was passed after its third reading and has awaited promulgation since 1997. The PLC has also conducted oversight activities, particularly review and analysis of the general budget.

To this end, the PLC has formed 12 permanent committees. These meet on a fortnightly basis and report the results of their deliberations to the PLC as a whole. The committees may request information directly from cabinet ministers or other senior officials, or request their attendance at hearings on issues within their remit. To date the committees’ investigations have included allegations of corruption and financial mismanagement and human rights abuses.

Internally, the PLC has set up a record-keeping system and a secretariat charged with the administration and organization of its departments and staff. The secretariat additionally oversees the 16 district constituency offices, as well as administrative, financial, media, public relations, legal, and other departments. The PLC has established standard procedures for debate, questions, and agenda setting.

Thanks in part to these provisions, the PLC conducts a developed level of parliament-constituency relations. Moreover, it has increased its interaction and cooperation with Palestinian NGOs, in both policy and technical areas. This was evident in the public debate on the Basic Law and other pieces of major legislation. More recently NGOs have played an active role in providing information to PLC members concerning the nongovernmental sector, and the PLC has in turn passed a responsive NGO law. Another example of cooperation is the Parliamentary Research Unit, which was set up by a local NGO and attached to the PLC to serve its needs.

The PLC has also benefited from generally open and lively political debate. This stems largely from a history of pluralism and grassroots activism in Palestinian politics, whether in the PLO or in the WBGS under Israeli occupation. Its sessions were televised for public broadcast during a trial period. Some remain open to public attendance and are shown on closed-circuit television within the PLC building.

Challenges

An effective and independent parliament is essential for accountable and responsive government. Yet the PLC faces considerable challenges in its ability to perform three main functions: legislate, provide effective oversight, and build relations with constituents.

Its foremost obstacles are the restrictions imposed by the Oslo framework, the ambiguity of its constitutional relationship with the executive authority, and its own technical shortcomings and lack of experience.

Concerning its legislative functions, the PLC remains constrained by its inability to legislate for powers and responsibilities that are not under PA jurisdiction. It is also impeded by the limitations placed by the Oslo framework on tackling areas subject to final status negotiations with Israel.

The PLC is also impeded by the standstill of the effort launched in 1996 to consolidate and integrate the diverse and often conflicting body of laws and ordinances in effect in the WBGS. A large number of public institutions and nongovernmental organizations have been involved in that effort, but lack a formal coordinating mechanism. Seven law commissions have been set up to assist the Ministry of Justice, but they have nongovernmental status and have been largely stalled; this despite the continuing work of interested parties in the PLC, the Palestinian Independent Commission for Citizens’ Rights, and the Law Center at Birzeit University. In the meantime the PLC has failed to address the resort by the executive authority to the British Emergency Regulations of 1945, nor has it attempted to repeal them.

Furthermore, the lack of a system for defining, implementing, and monitoring an overall PA policy vision has become increasingly problematic. As laws are drafted, it is unclear to what values they subscribe and what kind of system they are meant collectively to produce.

Finally, the executive authority has frustrated the PLC’s attempts to issue primary legislation. PA President Yasir Arafat has delayed promulgation of important laws passed by the PLC, including the Basic Law. Palestinian lawmakers assert that he has also used the power accorded by the Interim Agreement of 1995 to issue primary legislation in the guise of secondary legislation, which does not need PLC approval. To date more than 800 presidential decrees and orders or cabinet orders have been issued in this manner and published in the official gazette. In other cases, the executive has given laws to the PLC for review that should really be secondary legislation, thus taking up the legislature’s time and clogging up the legislative agenda. There is a need on both sides for greater skills and accumulation of experience in the whole legislative process.

Concerning oversight, the PLC’s functions have been greatly impeded by the executive authority’s lack of cooperation. This is particularly evident in the tardy submission of the general budget to the PLC, with delays reaching eight months and over. In April 1999 the cabinet reported all public revenues and expenditures for the first time, but still failed to provide either a detailed breakdown or a formal budget. The PLC has no means of determining whether expenditures are in line with the approved budget, and the executive authority does not submit nonbudgetary expenditure and supplementary budgets to the council for approval.

The executive authority has frequently declined to release information or documents requested by the PLC or its committees. This restricts the PLC’s ability to monitor executive performance. The executive authority has ignored the PLC’s recommendations for the investigation or dismissal of cabinet ministers on allegations of administrative malfeasance and financial mismanagement. Conversely, the findings of commissions of enquiry set up by the executive authority, such as the Presidential Anti-Corruption Commission, have not been released to the PLC, let alone the general public. The PLC has no authority over the PA’s external auditing body, the General Control Institute, and thus cannot order publication of its reports.

The problem facing the PLC in such instances is that it lacks the constitutional power and an effective system of sanctions to enforce executive compliance. It does have the power to cast a vote of no confidence as a means of bringing the executive authority to account, but has effectively abandoned this tool. This is partly because President Arafat’s party, Fateh, dominates the PLC, which in turn has enabled him to marginalize the PLC during critical votes. The fact that the president came to office through direct election increases his political strength in relation to the PLC, and in any case the present constitution does not provide for impeachment.

The Oslo framework additionally restricts the oversight function of the PLC by denying it the power to act on issues relating to foreign policy, including negotiations with Israel. These issues are discussed extensively in the PLC, but remain the sole prerogative of the PLO. But the PLC has not been able to debate agreements concluded by PA ministries or other agencies with outside parties even concerning matters that lie within its area of responsibility as stipulated by the Oslo framework.

These problems derive in part from the PLC’s own shortcomings. At one level, its preoccupation with the peace process and other political issues has deflected it from legislation, oversight, and constituency relations. Moreover, it needs to develop the legislative skills of its members and their ability to review and monitor the budget. The PLC lacks a comprehensive, systematic strategy for collecting and processing information. It also lacks formal, clearly defined mechanisms for coordination and consultation with the executive and judicial branches, constituents, and civil society organizations.

Furthermore, the PLC tends to ignore its own rules and bylaws regarding deadlines, strict debate and voting procedures, and agenda setting and circulation. More generally, although the PLC has been able in a relatively short time to institutionalize itself, it does not appear to have a clear long-term strategy regarding capacity-building and the scope of its work. It needs further clarification of the relationships between its committees, between the PLC Speaker and the committees, and between its operational staff and PLC members. Finally, the PLC needs to develop its internal work flow processes, provide clearer job descriptions for staff, and prepare manuals to guide PLC relations with its counterparts and other stakeholders.

In terms of building relations with constituents, PLC members have generally made considerable progress, but their actions tend to be reactive rather than proactive. There appears to be insufficient thought given to establishing structured and regular consultations with the electorate. This is partly because the Oslo framework does not provide for new general elections within the stipulated Interim Period, and thus acts as a disincentive for PLC members to reach out to voters. The concept of responsiveness and accountability to constituents is still new to PLC members.

Moreover, although PLC offices have been opened in the 16 electoral districts, most legislators do not have appropriate constituency offices. This limits their ability to acquire information about the circumstances of their constituents and to handle requests. PLC members also lack personal offices within PLC buildings, as well as appropriate technical and administrative support.

The PLC similarly has not yet developed a structured consultative process involving civil-society organizations. Concepts such as lobbying and advocacy are new to many PLC members, as well as to local NGOs and interest groups. At the same time the PLC has partly lost its ability to take debates to the general public. The initial televised broadcasts of PLC plenary debates, although reaching only a small geographic area and audience (because of Israeli restrictions on Palestinian use of the airwaves) were discontinued under pressure from the executive authority. The public may attend some sessions from the gallery or through closed circuit television, but these facilities are inadequate. The PLC has been unable to counter the intimidation and closure of the media by the executive authority.

Recommendations

  1. The PLC should adopt a multiyear legislative agenda as a more realistic means of organizing and completing its primary function.

  2. The executive authority should enable the PLC to review the general budget more effectively by making timely submissions to the legislature and by adhering to its approved terms.

  3. The PLC should be empowered to exercise effective oversight over the executive authority. To this end it is the PLC that should approve the operating budgets of the judiciary and other independent oversight bodies, including the General Control Institute.

  4. The ongoing consolidation and integration of the present, diverse and often conflicting body of laws and ordinances in effect in the West Bank and Gaza Strip should be completed.

  5. The legislature played a central role in drafting the Palestinian constitutional framework for the Interim Period, and should continue to play this role as the PA prepares for the permanent settlement. The draft Basic Law provides a useful starting point for any new constitutional document to be prepared for the next phase.

  6. In the interest of developing responsive legislative-constituency relations, the PLC should ensure that its members have appropriate constituency offices, as well as personal offices within Council buildings, with appropriate technical and administrative support.

 

Judiciary

Context

The PA inherited a judicial system in a state of virtual collapse upon its establishment in 1994. Palestinian legal structures that functioned prior to 1967 deteriorated dramatically during the protracted Israeli occupation, to the point where the judicial system was moribund and decapitated. 5 The two bar associations in the WBGS witnessed similar deterioration. This was due partly to the refusal of Palestinian lawyers to participate in the justice system under occupation, and partly to the severe restrictions placed by the Israeli military government on the formation of a professional Palestinian lawyers’ association in the West Bank. 6

The Palestinian court system continues to suffer a severe shortage of judges, prosecutors, court administrators, and other staff. Cases frequently had to be postponed, and a massive backlog has developed. Years of poor record-keeping hinder access to previous decisions as well as use of precedent. Disruption of the justice system during the intifada of 1987–93 exacerbated the situation.

The present Palestinian justice system continues to draw on Ottoman, British, and Jordanian law. President Arafat cancelled the applicability of Israeli military orders in 1994, but their exact status today is unclear. The Oslo framework has also reduced the jurisdiction of the Palestinian judiciary. Whereas settlers and other Israelis appeared in Palestinian civilian courts after 1967, this no longer occurs unless at their own request, regardless of the nature of the case or involvement of Palestinian parties.

The advent of the PA introduced a new source of legislation, as well as an additional court system based on the PLO Revolutionary Penal Code of 1979. This brings to five the number of court systems in operation in the WBGS: two separate systems of civil and criminal courts at the magistrate, district, and appellate levels; Islamic shari’a courts that handle personal status matters; Palestinian military courts that try members of the police force and security agencies; and state security courts for matters pertaining to national security. In addition, Israeli security courts operate in areas not under Palestinian internal security control.

Such progress as has been achieved in the judicial system owes much to the technical and financial assistance of the international donor community. A multifaceted program to upgrade the justice system has been underway at a cost of $72 million since 1996. This has involved four PA ministries, the judiciary, PLC, Palestinian NGOs, seventeen donor countries, and ten U.N. agencies. The program has sought to achieve six aims: unify laws; improve court buildings and facilities; unify judicial systems and procedures; standardize prosecution procedures and improve prosecution buildings and facilities; develop computerized legal and judicial data bases; and develop an independent forensic science capability. The international community has also played a crucial role in developing a “national plan of action for human rights.”

Achievements

The PA has signed numerous agreements with outside parties to assist in judicial rehabilitation and reconstruction, and the Ministry of Justice has formulated a detailed, comprehensive “Rule of Law Strategic Development Plan.” Progress has been slow, but the PLC took an important step toward unifying the court system in the WBGS by passing the Judicial System Law in December 1998. Once promulgated by the PA president and implemented, it should also ensure the independence of the judiciary.

The extension of the mandate of the Supreme Court in Gaza to cover the West Bank is another notable achievement, as is the reopening of levels of courts previously closed during the Israeli occupation. Traditional forms of dispute resolution and other procedures initiated as alternatives by senior PA officials, such as the governors of provinces, have also helped reduce the backlog of unheard cases.

Challenges

A functioning judiciary capable of exercising oversight of the executive and legislative branches of government is fundamental to good governance. Without trained and independent judges and a unified legal code, there is a serious threat to the rule of law, public order, and enforceable contract that are vital for a free society and market. The accords with Israel impose real limitations, particularly in relation to revising the legal framework, but there is still much that the PA can do to create a rehabilitated and capable justice system. Despite the positive steps noted above, this effort has barely started, more than five years since the establishment of the PA.

The Palestinian judiciary faces three major impediments:

Regarding lines of authority, the executive authority has failed to reestablish a Supreme Judicial Council. In its absence the PA president and the minister of justice have assumed its powers to establish and close local and regional courts; appoint, promote, demote, transfer, dismiss, and retire judges at all levels; hire and dismiss court personnel; and determine salaries and pensions. The post of attorney general, or public prosecutor, has been attached to the executive authority, which therefore makes appointments to this post. Furthermore, the PA president has extended executive intervention by appointing the head and board members of the new, unified bar association of the WBGS.

Lines of authority have also been confused and circumvented by the executive authority itself. The last attorney general to hold the post resigned because of continuous intervention by both the executive authority and heads of various police branches and security agencies. The posts of attorney general and chief justice have both remained vacant since 1997. Additionally, the heads of the two supreme courts in the West Bank and Gaza Strip were removed from office by the executive due to critical statements attributed to them or decisions made by their courts.

Regarding laws and administrative procedures, the PA has made little progress in simplifying the complex maze of laws in effect in the WBGS. Admittedly this is no simple task, but the PA has not even established a permanent secretariat to coordinate the various law commissions working in this area, let alone provide them with technical and support staff, office space, legal materials, and supplies. The consequences are far-reaching, but particularly notable are the absence of coordinated planning for legal safeguards for human rights and the slow preparation of laws pertaining to commercial contracts and economic activity.

Further complicating matters is that, with the seat of judicial power effectively in Gaza, much in the way of new legislation has been done by decree or fiat without consultation or notice in the West Bank. This undermines the notion that the unification of legal and administrative systems should be achieved in a balanced manner, and aggravates resentment in the West Bank of a perceived intrusion of Gaza legal traditions and norms.

Similarly, the PA has made little progress with the unification of the separate court systems and their overlapping jurisdictions in the WBGS. Indeed, it has added two new courts: military courts that try PA police and security personnel accused of criminal acts or disciplinary violations, and state security courts that try cases involving national security. The latter are known to be based on the PLO Revolutionary Code of 1979 and possibly on the British Emergency Regulations of 1945, but are closed and offer no right of appeal. Recently the state security courts have additionally taken to trying civilians accused of “economic crimes” such as smuggling, sale of expired food, and VAT evasion.

The justice system continues to experience a major lack of basic operational capacity. Trained and independent judges are sorely needed, as are bailiffs, clerks, court buildings, legal texts, and equipment. This applies equally to the prosecution service. Judges and prosecutors are poorly paid, and lack the security of tenure. Intervention by the executive authority in judicial decisions has further demoralized judges. The congestion of courts and overload of casework have indeed invited such intervention. Training is generally ad hoc and below the required standards, and Palestinian institutions do not yet have the capability to provide it effectively.

The justice system also suffers from lack of cooperation with law enforcement agencies. This is particularly evident in security cases, but the ability of courts to enforce judicial decisions is generally varied. The lack of a standardized national curriculum for police training also impedes cooperation with the justice system. A related problem is the dilapidated state of the penal system, in both administrative and material terms. There is a prison authority, but it has limited control over its own facilities and it badly lacks equipment, structures, and regulations.

The justice system would benefit considerably from greater provision for alternative dispute resolution. However, alternative dispute resolution, collective bargaining, administrative dispute resolution, and other non- or quasi-judicial mechanisms for resolving conflict are extremely limited.

Recommendations

  1. The Judicial System Law passed by the PLC in December 1998 should be promulgated by the executive authority.

  2. The executive authority should assist with the reestablishment of a Supreme Judicial Council enjoying genuine independence.

  3. The powers and responsibilities of the minister of justice should be fully defined, and should not duplicate or supplant those of the Supreme Judicial Council or senior judicial officers.

  4. The recommendations and targets stated in the Rule of Law Strategic Development Plan issued by the Ministry of Justice in 1996 should be implemented on an accelerated timetable, as a matter of urgency.

  5. State security courts should be abolished. As a first step the executive authority should define their mandate clearly, make them open, allow for credible defense, and provide for appeal to the Supreme Court.

  6. The judiciary requires qualified, independent, and protected judges with a suitable pay scale and promotion system. It should also have clerical staff, budgets, buildings, and equipment.

  7. Specialized courts should be set up to reduce the caseload of regular courts and provide better adjudication. Examples are settlement, administration, traffic, municipal, labor, and tax courts.

  8. The posts of head of the Supreme Court in the West Bank and in the Gaza Strip, currently vacant, should be filled.

  9. Although it does not form part of the justice system, the bar association should be unified and enabled to select its head and board members freely and without intervention by the executive authority, in the interest of regulating the legal profession.

 

Endnotes:

Note 3: “An Assessment of the Palestinian Legislative Council,” prepared by the National Democratic Institute for International Affairs for USAID and written by S.R. Benda and K. Johnson with the assistance of T.O. Melia, May 1, 1996, p. 3. Back.

Note 4: USAID, “Development Needs of the Palestinian Legislative Council and Possible Methods of Meeting Those Needs,” prepared by ARD Inc., January 17,1997, p. 7. Back.

Note 5: A study commission by USAID in November 1994, cited in UNSCO, Rule of Law Development in the West Bank and Gaza Strip, Survey and Status of Development Effort, July 1997, p. 12. Back.

Note 6: “Judicial Administration Project in the West Bank and Gaza,” prepared for USAID by the Global Bureau, Center for Governance and Democracy, March 1996, pp. 1–2. Back.