Constitution-Making and State-Building: Redefining the Palestinian Nation
CONSTITUTIONALISM IN ISLAMIC COUNTRIES: BETWEEN UPHEAVEL AND CONTINUITY, Rainer Grote and Tilmann Röder, eds., Oxford University Press, Forthcoming
22 Pages Posted: 2 Mar 2010
Date Written: 2010
In modern times, the constitution is considered to be the most appropriate legal instrument to perpetuate a political compromise between entities, groups and individuals composing the state. It intends to guarantee the respect of this ‘social contract’ to which individuals and groups adhere, in order to stop reclaiming rights through violence but rather to obtain them through law. Thus, a modern constitution is often conceived as the last act of a revolution. In the Palestinian context, drafting a constitution is not a result of statehood but rather part of the package of preconditions for achieving it. In other words, creating a new state, if not by the use of force – thus by imposition, needs now to be merited. The Palestinian case proves the relevance and dangers of dealing with this approach to constitutions and statehood. In order to have their own state, Palestinians need to prove to the international community that they are serious about liberal democracy and free market policy. They furthermore need to prove their willingness and their seriousness about reform; in other words, they need to merit their state, which is no more considered as part of their right to self-determination.
This article argues that the constitutional and institutional anomalies of the Palestinian Authority contributed to the crack between Palestinian factions, territories and narratives in 2007, following Ḥamās control by force of occupied Gaza Strip. Since then, reference to the same Basic Law, often interpreted differently, was done to justify respective actions and decisions. Law was used – as often was the case in Palestinian modern history – to accommodate political objectives, causing damage to the process of state-building. However, the clash between Palestinian factions is not only about political objectives but also, this article argues, related to their national aspirations, objectives and visions.
In this article the discussion turns around the way Palestinian constitutional documents were drafted, the way the Basic Law was adopted, and the way the Draft of a Palestinian Constitution will be endorsed. Shall constitution-making lead to the creation of viable and democratic institutions, and contribute to state-building or shall it contribute to its demise? In all circumstances, this article argued, constitution-making and state-building contribute to and urge for urgent redefinition of Palestinian nation and of those who represent it.
Keywords: Palestine, Constitution, Basic Law, Constitution Making, State-Building, Nation
JEL Classification: K00
Suggested Citation: Suggested Citation