Palestinian Center for Policy and Survey Research (PSR): Palestinian draft constitution

 

Prepared By

The Constitution Committee

 

The DRAFT

Of the

Palestinian Constitution

 

 

In Cooperation with the

Konrad Adenauer Foundation

 

Table of Contents:

  1. Preface and Acknowledgement.

  2. Members of the Constitution Committee.

  3. Text of The constitution.


Preface and Acknowledgement

This draft is the work of the Palestinian Constitution Committee. President Yasir Arafat established the Committee in November 1999 and appointed Minister Nabil Sha’ath its chairman. The Committee’s mandate and efforts were endorsed by the Central Council of the PLO in its various meetings during 2000. The Palestinian Center for Policy and Survey Research (PSR) provided the support needed for the Committee in order to facilitate its work and insure an effective process of consultation and participation in the drafting phase of its work. Throughout 2000, PSR commissioned comparative research and organized retreats and specialized workshops where various versions of the Draft Constitution were presented and discussed.

PSR wishes to acknowledge the encouragement received from Minister Nabil Sha’ath for our work and the work of the Drafting Committee. We appreciate the tremendous and dedicated work of Dr. Ahmad Mubarak al Khalidi, the Deputy Chair of the Constitution Committee and the head of the Drafting Committee and the two other members of the Drafting Committee, Dr. Ali Khashan and Dr. Khalid Erikat. We are grateful to the Konrad Adenauer Foundation for providing the support to our work and that of the Committee. We also wish to thank the Independent Task Force on Strengthening Palestinian Public Institutions for its support and encouragement. Finally, we express our appreciation for all those who took part in translating the Draft from the original Arabic. In this regard, we wish to acknowledge the significant contribution to the translation made by Dr. Nathan Brown, Professor of Political Science at the George Washington University.

Khalil Shikaki, Director

 

Members of the Constitution Committee

(Listed are those members who took part in developing the Draft Constitution)

  1. Dr. Nabil Sha’ath, Minister of Planning and International Cooperation, Chairman

  2. Dr. Ahmad Mubarak al Khalidi, Professor of constitutional law at al Najah University, Deputy Chairman

  3. Dr. Ali Khashan, Dean of the College of Law at al Quds University

  4. Dr. Khalid Erikat, Director-General at MOPIC

  5. Dr. Ahmad Abu Halbeyyeh, Dean of Graduate Studies, Islamic University

  6. Dr. Kamal al Astal, Chairman of the Political Science Department, Al Azhar University

  7. Mr. Khairi Hasan, Member of the Legal Committee of the Palestinian National Council

  8. Mr. Mohammad Sbeih, Secretary-General of the Central Council of the PLO, and the Representative of Palestine to the Arab League

  9. Mr. Mahmoud al Ajrami, Director-General at MOPIC

 


Chapter One:

Foundations of the State and Rights and Duties

Section One: General Foundations of the State

Article 1

This constitution is based on the will of the Arab Palestinian people. It shall be approved democratically.

Article 2

The Arab Palestinian people believe in the principles of justice, liberty, equality, human dignity, and their right to practice self-determination and sovereignty over their land.

Article 3

The Palestinian people are a part of the Arab and Islamic nations.

Article 4

Palestine is an independent state with complete sovereignty that cannot be conceded. Its system shall be republican and its lands are unitary and indivisible.

Article 5

Arabic shall be the official language.

Article 6

Islam shall be the official religion of the state. The monotheistic religions shall be respected.

Article 7

The principles of the Islamic Shari`a are a primary source for legislation. The legislative branch shall determine personal status law under the authority of the monotheistic religions according to their denominations, in keeping with the provisions of the constitution and the preservation of unity, stability, and advancement of the Palestinian people.

Article 8

Jerusalem shall be the capital of Palestine and its seat of government.

Article 9

Palestine's flag, motto, seals, emblems, and national anthem shall be determined by law.

Article 10

Sovereignty belongs to the Palestinian Arab people. Its prerogatives shall be exercised by the people directly, by means of elected representatives, by referendum, and through their constitutional institutions.

Article 11

The Palestinian political system shall be a representative democracy based on political pluralism. It shall guarantee the rights and freedoms of minorities without discrimination in their rights and obligations. It shall guarantee their protection and their respect for legitimacy in that which insures the supreme interests of the Palestinian people and their national unity.

Article 12

The institutionalized authority of the Palestinian people shall be exercised in order to realize the general welfare and defend public and individual rights and freedoms.

Article 13

The legal character of the Arab Palestinian people shall be embodied in the state. The state is a symbol of national unity. It shall safeguard respect for the constitution and preserve independence, unity, territorial integrity, and the orderly proceedings of government in adherence with constitutional provisions.

Article 14

The rule of law and justice shall be the basis of governance, the motivation for the work of governing authorities, and the protector of the rights of the people and their democratic values.

Article 15

The provisions of the Constitution and the laws issued in accordance thereof apply to all individuals and governmental institutions. No suspension of these provisions shall be allowed.

Article 16

The state of emergency shall be regulated by the provisions stated in the constitution. During it, the work of the government must be in application of the text of the law.

Article 17

No legal or material activity of state agencies may be made immune. All actions of governmental authorities shall be subject to legal and judicial review. In all circumstances, the state shall remain responsible to compensate for damages, errors, and dangers resulting from measures and actions of state employees.

Article 18

Individuals and public authorities must respect the judicial rulings. Violation of the dignity of the judiciary shall be punishable by law.

Article 19

International conventions and treaties which the state of Palestine signs or joins shall become a part of the Palestinian legal order after they have been adopted by law and have the status of normal legislation. The principles of customary international law shall be considered a part of the legal order insofar as they do not contradict the stipulations of the constitution or the law in force.

Article 20

Natural resources in Palestine are the property of the Palestinian people. They shall exercise their sovereignty over them and do not permit their monopolization. The state shall preserve the historical rights of the Palestinian people to them as they have been established in the rules and principles of international law. Their exploitation shall be governed by law.

Article 21

The economic order in Palestine shall be established on the basis of free market principles. The law shall regulate its supervision in order to protect free economic activity and to preserve the rights of groups in need of care. The state may establish public companies regulated by law.

Article 22

The state shall strive to realize the social, economic, and cultural development of the Palestinian people on the basis of social justice.

Article 23

A clean and sustainable environment is a human right. It shall be a societal and official responsibility to preserve and protect the Palestinian environment for present and future generations.

Section Two: Rights and Duties

Article 24

Palestinians shall equal before the law. They shall enjoy rights and incur duties equally without discrimination for any cause except those constitutionally legitimated

Article 25

Palestinian citizenship issecure and permanent for any Arab who lived in Palestine before May 1948. It is transmitted from father to child. It endures and is not cancelled by the passage of time. The law shall determine the ways of gaining and losing it and the rights and duties of multinational citizens.

Article 26

The constitution guarantees the civil, political, social, cultural, and economic rights and freedoms of all citizens, which they enjoy on the basis of equality and equal opportunity.

Article 27

Human rights and basic freedoms according to international laws, charters, and treaties that become part of domestic law are binding and must be respected.

Article 28

Every person has the right to life and to the protection of his rights, freedoms, and well being in accordance with the provisions of the constitution, the laws issued in application thereof, and the principles of justice.

Article 29

Life shall not be subject to scientific or medical experimentation. No one shall be subject to medical treatment without his consent. Exceptional circumstances shall be regulated by law. Organ transplants and other innovations of scientific progress for legitimate humanitarian purposes shall be regulated by law.

Article 30

People have the right of protection from injury, harsh treatment, and subjugation to torture or inhumane and undignified punishment.

Article 31

The constitution guarantees to every citizen freedom of residency and movement within the state, abroad, and returning to it.

Article 32

The right of the Palestinian refugee to return to his home and the original home of his ancestors is a natural right which cannot expire. Its exercise may not be delegated nor surrendered.

Article 33

Exiling Palestinians from their homeland or denying them the ability to return is prohibited. Neither may they be extradited to a foreign country except according to a treaty approved by the legislative branch.

Article 34

No Palestinian may be extradited for political crimes.

Article 35

No political refugee may be extradited.

Article 36

No person may be deprived of legal competence, citizenship, or reputation for political reasons.

Article 37

Personal security is guaranteed by the constitution. No one may be arrested, searched, detained, or restricted in his freedom in any way except by a judicial order applying the provisions of the law. The law shall define the conditions of provisional detention.

Article 38

The accused my not be subject to any coercion or torture. The accused must be treated as innocent until his guilt has been proven in a fair trial granting him the guarantees of self-defense and the assistance of an attorney.

Article 39

A convict deprived of his freedom must be treated humanely and appropriately. Arbitrariness in execution shall be punishable by law.

Article 40

There shall be neither crime nor punishment except as stipulated by law. There shall be no punishment except for deeds committed after a law comes into effect. In non-criminal matters, it may be stipulated otherwise in a law that is approved by a majority of all the members of the Legislative Council.

Article 41

Laws passed by the Legislative Council shall be published in the Official Gazette within one month of their being passed. In accordance with the provisions of Article 137, they become effective after one month from the day following their submission for publication unless another date is set forth by law.

Article 42

Punishment is individual; collective punishment is forbidden.

Article 43

The right of all to litigation shall be guaranteed by the state. Each individual shall have the right to resort to his natural judge to defend his rights and freedoms and to obtain compensation for their injury. No public or private person shall have immunity from appearing before the judiciary. Trial procedures for exceptional instances shall be regulated by law in accordance with the provisions of the constitution.

Article 44

The freedom to practice religion and arrive to places of worship shall be guaranteed insofar as it does not disturb the public order or defame monotheistic religion.

Article 45

Residences shall be inviolable. Search and entry shall not be permitted except according to judicial order given for cause, during the day, and in accordance with the provisions of law.

Article 46

Freedom of thought and expression, in speech or writing or other means, shall be guaranteed. The law shall regulate it to guarantee the equal respect for the rights of others.

Article 47

Freedom of the press, printing, publishing, and media shall be protected by the constitution. It is not permitted to suspend them except by judicial decision in application of the law. It is not permitted to subject them to censorship. The law regulating these shall guarantee their integrity, the expression of different opinions, encourage scientific, artistic, and literary creativity, and guarantee the freedom of academic opinion.

Article 48

The constitution shall protect the confidentiality and freedom of correspondence and communication. They may not be infringed except in circumstances defined by law.

Article 49

Public property shall be regulated by law in order to protect it and so that it serves the interest of the people. The administration of Waqf funds shall be regulated by law. Private property is protected. It shall be disposed of in a matter that does not conflict with the public interest. It may not be seized or appropriated except for the pubic benefit, by virtue of law, and in return for just compensation. It may not be confiscated except by judicial decision. Public confiscation of the right of ownership shall be forbidden.

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 policy 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 according 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.

Article 57

The state shall guarantee health insurance as an individual right and a public interest. It shall guarantee basic health care for those financially unable.

Article 58

Education has freedom provided it does not disturb the public order and decency or offend the monotheistic religions. It is a right of every citizen and is supervised by the state. The state shall guarantee education until the secondary level. It is compulsory until the end of the tenth grade.

Article 59

Private education has freedom provided it does not violate the public order and public decency or offend the monotheistic religions. The law shall regulate the supervision of the state over its organization and curricula.

Article 60

The state shall provide assistance to students who are financially unable. It shall support the outstanding.

Article 61

The constitution shall protect the independence of institutions with scientific goals and universities in a manner defined by law in order to guarantee the freedom of scientific research and encourage it.

Article 62

The state and the society shall protect motherhood and childhood. The rights of the child, the mother, and the family shall be regulated by law.

Article 63

Women are the full sisters of m. They have rights and duties as guaranteed by the shari`a and established in law.

Article 64

Each citizen has public, civil, and political rights and freedoms, which shall be guaranteed by the constitution and regulated by law. Specifically, he has the following rights:

  1. Direct participation in political life.

  2. The right to election and nomination in representation of the people

  3. The right to contribute to political activities, form or join a political party, adopt the platform of a legally established party, idea, or political choices and support them peacefully.

  4. The freedom to gather and demonstrate with others peacefully and without weapons.

  5. The freedom to form public associations according to the legal procedures.

  6. The right to present petitions and complaints.

Article 65

The suspension of any right or freedom among the rights and freedoms is not permitted in any circumstance. The law shall regulate the rights and freedoms that may be restricted temporarily in exceptional circumstances.

Article 66

Any violation of the basic rights and freedoms of the individual guaranteed by the constitution shall be crime for which the resulting civil and criminal lawsuits shall have no statute of limitations.

 

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