Constitutional Law at Palestine
🇵🇸 Constitutional Law in Palestine
Palestine operates under a Basic Law that serves as its de facto constitution. This legal framework was initially enacted in 2002 and later amended in 2003 to introduce a Prime Minister position, thereby establishing a semi-presidential system. The Basic Law outlines the structure of governance, the separation of powers, and the protection of fundamental rights.
📜 Key Features of the Palestinian Basic Law
1. Form of Government
Article 1: Palestine is part of the larger Arab world, and the Palestinian people are part of the Arab nation. Arab unity is an objective that the Palestinian people shall work to achieve.
Article 2: The people are the source of power, which shall be exercised through the legislative, executive, and judicial authorities, based upon the principle of separation of powers and in the manner set forth in this Basic Law.
Article 5: The governing system in Palestine shall be a democratic parliamentary system, based upon political and party pluralism. The President of the National Authority shall be directly elected by the people. The government shall be accountable to the President and to the Palestinian Legislative Council. (2003 Amended Basic Law)
2. Fundamental Rights and Freedoms
Article 6: The principle of the rule of law shall be the basis of government in Palestine. All governmental powers, agencies, institutions, and individuals shall be subject to the law.
Article 4: Islam is the official religion in Palestine. Respect for the sanctity of all other divine religions shall be maintained. The principles of Islamic Shari’a shall be a principal source of legislation. Arabic shall be the official language.
Article 50: The law shall regulate the conditions of transfer of ownership of real estate to foreigners.
Article 51: The state shall protect the private economic activity of individuals in order to realize economic growth and social justice.
Article 52: Each citizen has the right to work. The constitution shall guarantee the freedom to form work-related associations.
Article 53: Slave labor shall be prohibited. The law shall regulate compulsory labor in cases of executing judicial decisions.
Article 54: The right to protest and strike shall be exercised in a way that does not violate the law. Strikes are forbidden in the army and police sectors. The law shall regulate the relations of work in order to guarantee justice for all parties and provide for the protection and security of workers.
Article 55: Every Palestinian has equal right to public positions on the basis of merit and aptitude, in accordance with the law regulating public employment.
Article 56: The state shall guarantee social insurance services, pensions for the disabled and aged, care for the families of martyrs and prisoners and orphans, and care for those wounded and injured in the national struggle. This shall be done to guarantee them training, education, and health and social insurance. (2003 Amended Basic Law, Palestinian Authority Constitution)
3. Separation of Powers
Legislative Authority: The Palestinian Legislative Council is the elected legislative authority. It assumes its legislative and oversight duties as prescribed in its Standing Orders. The term of this Council shall be the interim period.
Judicial Authority: The judicial authority shall be independent and shall be exercised by the different types and levels of courts. The law shall determine the way they are constituted and their jurisdiction. They shall issue their rulings in accordance with the law. Judicial rulings shall be announced and executed in the name of the Palestinian Arab people. Judges shall be independent and shall not be subject to any authority other than the authority of the law while exercising their duties. No other authority may interfere in the judiciary or in judicial affairs. (2002 Basic Law, Palestine 2003 (rev. 2005) Constitution - Constitute)
4. Emergency Powers
Article 101: The President of the National Authority may declare a state of emergency by a decree when there is a threat to national security caused by war, invasion, armed insurrection, or at a time of natural disaster for a period not to exceed thirty (30) days. The emergency state may be extended for another period of thirty (30) days by securing the approval of two-thirds of the Legislative Council.
Article 102: It is not allowed, when declaring a state of emergency, to impose restrictions on the basic rights and freedoms, except to the level that is necessary to achieve the objective stated in the decree of the state of emergency.
Article 103: Any arrest resultant from the declaration of emergency situation shall be subject to the following minimum requirements: Any detention done in accordance with the decree of the emergency situation shall be reviewed by the Attorney General or by the concerned court during a period not exceeding fifteen (15) days from the date of detention. The detained individual shall have the right to appoint a lawyer of his choice. (Palestinian Basic Law)
5. Transitional Provisions
Article 106: The provisions of this Basic Law shall apply during the interim period and can be extended until the implementation of the new constitution of the Palestinian State.
Article 107: Laws shall be promulgated in the name of the Palestinian Arab People and shall be published immediately in the official gazette. These laws shall come into force thirty (30) days from the date of their publication unless the law states otherwise.
Article 108: The provisions of laws shall apply only to matters occurring as from the date on which they came into force. However, it can be stated otherwise in articles that are not punitive.
Article 109: Law, regulations, and decisions in force in Palestine before the implementation of this law shall remain in force to the extent that they do not conflict with the provisions of this Basic Law, until they are amended or repealed in accordance with law.
Article 110: Everything in contradiction with the provisions of this Basic Law shall be repealed.
Article 111: The provisions of this Basic Law shall not be amended except with two-thirds majority of the Members of the Legislative Council.
Article 112: This Basic Law shall be effective as of publishing it in the official gazette. (Palestinian Basic Law, 2003 Amended Basic Law, 2002 Basic Law)
⚖️ Constitutional Challenges and Prospects
The Basic Law, while comprehensive, faces challenges in full implementation due to political divisions, particularly between the West Bank and Gaza Strip, and the absence of a Constitutional Court to adjud
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