The Enactment of Constituent Power in the Arab World: The Palestinian Case

Abstract

Leading forces of a revolution endeavour to congeal its achievements, particularly the new distribution of political power, in a constitution that is superior to all other laws of the land. Nevertheless, constituent power remains inherent in the people, and they may enact it through mass mobilisation that may be bloody sometimes, or peaceful. Constituent power is then enacted.

Modern Constitutions have the tendency to convert from a highly desired expression of self-determination to a highly rejected self-limitation. Modern constitutions become the national legal instrument to impose internationally defined provisions. The Palestinian constitution-making proves that the (post French and American revolutions’) theory of constituent power does no more fit new realities in the twenty first-century.

The constitution, however, remains a necessary tool for the nation to express its will but also for individuals and communities to protect themselves from the nation and from its expression, the state. Modern constitution is the legal demarcation of political compromise to which entities and individuals composing the state shall adhere.

Keywords: Constituent Power, Constitution, Constitutionalism, Palestinian Authority, Palestine, West Bank and Gaza Strip, Occupied Palestinian Territory, Palestinian Legal System, Constitutional Theory, Constitutional Law

JEL Classification: K00