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POGAR > Countries > Country Theme: Constitution: Occupied Palestinian Territories
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Historical Background

A Basic Law for the National Authority in the Transitional Period was approved by the Palestinian Legislative Council (PLC) in October 1997 and signed into law by President Yasser Arafat on May 29, 2002. It provides a provisional constitutional framework for the Palestinian state until the peace process is concluded and the Palestinian state is officially declared. The law states that the government of Palestine is a parliamentary democracy based on the rule of law and the principle of pluralism, with consideration for minority rights and the separation of powers.

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Separation of Executive, Legislative, and Judicial Powers

The Basic Law declares Jerusalem the capital of the Palestinian state. The executive power is vested in the president and the cabinet appointed by him. The legislative power is vested in the Palestinian Legislative Council (PLC). The judiciary is independent. The PLC, the presidency, and cabinet, together with the judiciary and the ministries and other operational institutions, collectively form the Palestinian Authority (PA).

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Main Provisions

The Basic Law states that the term of the presidency extends throughout the Transitional Phase; the president can only be removed by death, resignation, or a determination of incompetence by a ruling of the High Constitutional Court along with a two-thirds majority of the PLC. President Mahmoud Abbas approved on August 13, 2005 the amended Basic Law which states that the term of the president in office is 4 years. The president has the right to run for a second term on condition that he does not serve more than two consecutive terms according to article 36 of the Basic Law. Article 47 of this law stipulates that the term of the legislative council is 4 years. Elections should take place once every 4 years. Council members are to be elected in a direct public and free elections in accordance with the effective elections law. The president is the commander-in-chief of the Palestinian forces. The president has the power to initiate or propose laws to the PLC or to issue secondary legislation. The PLC passes the laws, debates policy, approves the budget, development plans, general amnesty, pardon, the appointment of cabinet ministers, and takes votes of confidence in the government. Article 57 of the Basic Law gives the president the power to veto laws within 30 days of their adoption by the PLC. If the president returns the draft law to the legislature, it is discussed there for a second time. If a two-thirds majority of the Council members approves it, the draft becomes law. The president may also issue decrees with the force of law in exceptional circumstances while the PLC is not in session. Such decrees are subject to the approval of the PLC when it convenes.

The president may declare a state of emergency that shall last no longer than thirty days. The state of emergency may be extended for another thirty days with the approval of the PLC. During a state of emergency, basic rights may not be infringed upon, and the legislature may not be suspended. Detainees have the right to a lawyer, and their cases must be reviewed by the Attorney General or the courts within fifteen days.

The PLC does not have the right to question the president of the PA. The direct popular election of the president, coupled with the fact that the PLC cannot impeach him, increases his political strength in relation to the PLC. The president’s appointees for the Council of Ministers are subject to a vote of confidence by the PLC prior to taking office.

The Basic Law 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. It 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 seeks to institutionalize safeguards against violations of citizens’ rights and recognizes the fundamental human rights and freedoms prescribed in major international covenants. The Palestinian Independent Commission for Citizens’ Rights, created by presidential decree, provides additional safeguards.

The state commits itself to taking care of the families of martyrs, the injured and the handicapped. Work is recognized as a right, and the state guarantees equality of opportunity in this area. Peaceful assembly and association, including the formation of trade unions are constitutionally protected.

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Civil Rights

The Basic Law declares equal protection of the law for all. Citizens are protected against torture, forced confession, and arbitrary arrest. The Law also safeguards freedom of thought, freedom of expression, and freedom of the press, provided that they do not violate the provisions of the law. Also listed are the right to life and equality of gender. Freedom of belief and worship are guaranteed, subject to non-violation of public order or morality. Freedom of formation of political parties is guaranteed, provided that they conduct their activities in a peaceful manner.

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Constitutional Court

Article 94 establishes the High Constitutional Court, which reviews the constitutionality of laws, interprets legal texts and settles jurisdictional disputes. Pending the creation of this entity, its powers are exercised by the Supreme Court. Article 98 requires the appointment of the attorney general, or public prosecutor, to be approved by the PLC.

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