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A Constitutional Milestone?
Grasping for some kind of peace.


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Before the double suicide bombing in Tel-Aviv on January 12, the Palestinian Authority leadership had been poised to meet Tuesday with British Prime Minister Tony Blair to discuss reforms to the PA, and to present a proposed final constitution. The presentation of a constitution, though now delayed, has already been greeted by many as a significant achievement and the realization of a fundamental milestone of the Oslo peace process. Before we can consider such a development to be an actual advancement towards peace, however, we must be satisfied that this constitution addresses the shortcomings that have so far kept peace out of reach.

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With the signing of the Oslo accords on September 13, 1993, and the landmark handshake between Yasser Arafat and Yitzhak Rabin came the creation of the PA, the interim self-rule government for Arabs living in the West Bank and Gaza Strip. The Oslo accords envisioned a PA with a republican form of government, similar to the U.S. model, with governmental functions vested in legislative, executive, and judicial branches.

The Palestinian Legislative Council (PLC) was to be the prime organ of government in the PA and the principle vehicle of legislation. Its first and most important mission was to craft a constitution for the self-rule government — one that would form the basis for this new government, replace more than a quarter-century of Israeli military rule, and lay the foundations for the permanent Palestinian government that would succeed the PA. This interim government was to last until no later than 1999, at which time Israel and the PA were to have concluded a final agreement. But such a transition was predicated on the PA’s adopting a constitution and implementing a democratic form of government.

Despite a fast start — the PLC sent nine draft constitutions to President Arafat within its first two years of existence — an interim constitution was not enacted until six months ago (nearly a decade after the White House handshake), because Arafat dragged his feet for as long as he could. Arafat simply had no incentive to implement a constitution that would establish a separation of powers between branches and vest authority in anyone other than himself. As the unelected head of the PLO for more than two decades — and of the Palestinian Authority for the two years from its inception until its first (and only) elections — he had become accustomed to unquestioned power.

Ironically, given the importance the Oslo accords placed on developing a constitution and implementing the rule of law, the world community put little pressure on Arafat to sign such a document or to even to share power. This was because many believed regional security would be best achieved by ceding power to Arafat, who could then wield it against the opponents of peace. This sentiment was best expressed by the late Israeli prime minister Yitzhak Rabin, who supported Arafat’s consolidation of power because it meant that in the PA, unlike in a Western democracy, there would be no supreme court or human-rights organizations to challenge his policies or contest his control.

In fact, Israel and the U.S. were so fearful of extending power to anyone other than Arafat that they reserved all power to negotiate with Israel or any other foreign government not to the PLC or even to the president — out of a fear of who might be elected to such positions — but rather to the PLO’s Executive Committee, all of whose members were appointed by its chairman, the unelected position Arafat has held since the organization’s founding.

Today, many have changed their views of Arafat and now appreciate that he is more hindrance than help. But the damage has already been done.

Emboldened by his early success in preventing a constitution from being enacted, and secure in the fact that he alone could negotiate final-status issues — for instance, the ultimate boundaries between Israel and a Palestinian state; the right of return of Palestinian refugees to Israel; and the status of Jerusalem — with Israel and the world community, Arafat took further steps to consolidate his power. He made the PLC completely irrelevant through both direct action (by removing on occasion the Speaker and designating himself to that position) and by indirect means (by propagating and enacting all legislation himself, without so much as seeking the legislature’s consent).

Similarly, he destroyed the effectiveness of the judiciary by rejecting the principle of judicial review, whereby the judiciary can rein in a legislature or an executive which overextends itself. He did this by establishing a separate system of security courts, in which he alone has the power to bring charges and to review appeals, and by forcing the resignation of the chief justice of the High Court of Justice (the PA’s supreme court) for issuing a decision with which Arafat disagreed.

Given this nine-year record, the impending announcement of a final Palestinian constitution will, in all probability, mean very little for peace. With Arafat still in charge, with no elections scheduled, and with no reasonable likelihood for an enforceable separation of powers, a constitution would have little effect on the status quo in the PA. Palestinians will continue to be subject to summary arrest and trial by their government, will continue to suffer the economic devastation brought on by their leaders’ corruption, and will continue to have no voice in charting their own future.

Furthermore, a constitution that enshrines a right of return to Israel for all Palestinians, claims exclusive sovereignty over Jerusalem’s Old City, or codifies the PLO’s role (and with it, Arafat’s) as sole representative of the Palestinian people will hardly create an atmosphere in which talks with Israel over final-status issues can be restarted. Indeed, these are largely the same issues that undermined Camp David II and helped incite the current wave of Palestinian terrorism. For the PA to attempt to legitimize such unreasonable expectations in a constitution will only subject Israel to further suicide bombings and the region to further turmoil.

After this month’s suicide bombings, the chances — and hopes — for peaceful coexistence between the Israelis and the Palestinians are at one of their lowest points since 1993. Without an enforceable separation of powers, regular elections, world recognition that democracy must be cultivated in the PA, and the removal of Yasser Arafat, the enactment of a final Palestinian constitution may serve to signify yet another milestone of Oslo — that hope can sink still lower before peace is finally realized.

— Edward B. Miller is an attorney practicing in New York who writes frequently on the Mideast.



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