Constitutional-Design Options for State Formation in Palestine Faculty

Constitutional-Design Options for State Formation in Palestine Nahed Fraitekh Odeh A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy Faculty of Law March 2018 Thesis/Dissertation Sheet THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet Surname or Family name: Odeh First name: Nahed Abbreviation for degree as given in the University calendar: PhD Faculty: Law School: Law Title: Constitutional Design Options for State Formation in Palestine Abstract In post-conflict societies, the political and legal systems are often both the worst affected and also the key to reform. This is true of Palestine where, ever since the establishment of the Palestinian Authority in 1995 under the Oslo Accords, much emphasis has been placed on the need for legal and political renewal. This dissertation assesses whether constitutional reform may provide a solution to the ongoing political crisis in Palestine. The central focus falls on the Palestinian Basic Law, its origins, current challenges and future prospects. The thesis argues that there is a need for a new constitution that meets citizens’ demands for democracy, human rights and national unity. The thesis begins by analysing the nature and causes of the current political crisis, starting with the fallout between the two major Palestinian political parties, Fatah and Hamas. From 2006, with Hamas’ victory in the parliamentary elections, Palestinians have been separated between the West Bank and the Gaza Strip, controlled by Fatah and Hamas respectively. Various de facto changes to the political system envisaged by the Basic Law have followed this separation: there are now effectively two governments with different political programmes, different ideologies (secularism and radical Islam), and an absent Legislative Council. With the passage of time, the Palestinian political crisis has turned into a legal and constitutional crisis as the Basic Law has become an integral part of the problem rather than a solution. In the absence of a functioning constitutional system, Fatah and Hamas have violated the rule of law, democracy and human rights. This thesis argues that part of the solution to the crisis lies in adopting a hybrid federal-consociationalist system that takes into account the specificity of the Palestinian situation, including the current geopolitical separation, the Israeli occupation, and the reasons behind the lack of governmental stability. In pursuing this argument, the thesis assesses the relative merits of federalism and consociationalism in post-conflict settings, and conducts a comparative analysis of three Middle Eastern countries in which constitutional reforms have been attempted. i Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all property rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 words abstract of my thesis in Dissertation Abstracts International (this is applicable to doctoral theses only). Signature Witness Date The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. FOR OFFICE USE ONLY Date of completion of requirements for Award: THIS SHEET IS TO BE GLUED TO THE INSIDE FRONT COVER OF THE THESIS ii ORIGINALITY STATEMENT I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged. -------------------------------- Signature Date iii COPYRIGHT STATEMENT ‘I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 words abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.' Signed Date ………………………………. AUTHENTICITY STATEMENT ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’ Signed Date ……………………………….. iv Dedication This dissertation is dedicated to those who believed in me and encouraged me in all the steps that I have made in my entire life; to my Mom’s soul, and the soul of my brother Emad, who passed away during my visit to Palestine for field research in April 2014. v TABLE OF CONTENTS ACKNOWLEDGEMENTS ................................................................................... XIV ABSTRACT ........................................................................................................... XVI LIST OF ABBREVIATIONS ............................................................................ XVIII PART ONE ................................................................................................................ 1 CHAPTER 1: INTRODUCTION ............................................................................ 2 1.1 INTRODUCTION ............................................................................................................................. 2 1.2 THE CRISIS IN PALESTINE ............................................................................................................ 5 1.2.1 The Palestinian Political Division ....................................................................................... 5 1.2.2 The Israeli Occupation ............................................................................................................... 6 1.2.3 What the Crisis Looks Like on the Ground ...................................................................... 8 1.3 RESEARCH QUESTION ................................................................................................................ 11 1.4 OBJECTIVES ................................................................................................................................ 12 1.4.1 Significance .................................................................................................................................... 12 1.4.2 Scope ................................................................................................................................................... 13 1.5 RESEARCH STRUCTURE .............................................................................................................. 15 1.6 LITERATURE REVIEW ................................................................................................................ 18 1.6.1 Literature on Palestine ............................................................................................................ 19 1.6.2 Literature on Constitutional-Design ............................................................................... 21 vi 1.7 METHODOLOGY .......................................................................................................................... 23 1.7.1 The Historical-Comparative Method ............................................................................... 24 1.8 RESEARCH RESULTS AND ANALYSIS .......................................................................................... 25 CHAPTER 2: CHALLENGES TO INSTITUTION-BUILDING AND CONSTITUTIONAL AMENDMENT IN PALESTINE ...................................... 27 2.1 INTRODUCTION .......................................................................................................................... 27 2.2 A BRIEF REVIEW OF CONSTITUTIONAL AND INSTITUTION SYSTEMS IN PALESTINE .............. 28 2.2.1 The Palestinian Constitutional System .......................................................................... 28 2.2.2 Institutional

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