Is issuing a Palestinian constitution necessary? Is this the right time for it, and in the way we have all witnessed? And how can it be issued? These are some of the questions raised after the publication of the Palestinian draft constitution and its submission for public discussion for sixty days, without approval by an elected or widely nationally agreed-upon constituent assembly, but rather through the formation of a committee that excluded most factions and sectors. The draft was presented for public discussion without being submitted to the Executive Committee of the Palestine Liberation Organization (PLO), as its member representing the Democratic Front, Ramzi Rabah, stated.
The constitution, as the “father of all laws,” is extremely necessary for any sovereign state or on the eve of sovereignty. There is what is called a “constitutional moment,” an exceptional moment in which a political and legal system is established or reestablished through a new constitution or significant constitutional amendments, based on the fact that the constitution sets out rights and duties. Sovereignty is essential to ensure compliance. A constitutional moment occurs when a new state is founded, a political system falls and is replaced, a revolution breaks out, or a major political transformation occurs. In other words, there must be a major development or foundational event, or a severe crisis requiring broad popular authorization or wide political consensus. Some countries adopt constitutions, while others rely on fundamental laws, for example, Germany compensates with its Basic Law instead of a full constitution.
Issuing a constitution at a time when the path to Palestinian statehood is being blocked is closer to farce and deception.
Debate in Palestine has been ongoing since the establishment of the Palestinian Authority among politicians, legal experts, and concerned parties, especially after the recognition of the State of Palestine as an observer state. This debate has intensified as the number of countries recognizing Palestine reached 159, including most veto-holding nations except the United States, about the need to issue a constitution to replace the Basic Law governing the Palestinian Authority. Drafts of the constitution have been prepared and amended but never published, as the prevailing opinion holds that the appropriate time to issue a constitution is after the occupation is ended and Palestinian statehood is realized, or on the eve of independence. So, what is driving the rush now? Could it all be a waste of time and a diversion from what truly needs to be done?
To clarify, one must start from the specific Palestinian context: Palestine remains under a settler-colonial, racist, and displacement-driven occupation that uses occupation, apartheid, genocide, annexation, displacement, and military aggression in all forms to achieve its goals. The project is ongoing, becoming more extreme, racist, aggressive, and brutal. This means the Palestinian people are still in a stage of national liberation, with democratic tasks emerging from the Authority’s existence, but it is not a stage of state-building, nor is it on the eve of statehood. Although the Palestinian state is a natural, historical, and legal right fully recognized by international law, it cannot exercise sovereignty until the occupation ends.
Statehood should not be a matter of negotiation, as the PLO leadership once did, bargaining over the state and other inalienable rights; negotiations should only concern the implementation of these rights. The Palestinian state exists officially but remains under occupation, meaning it does not exercise the sovereignty that gives a state its essence. Until independence is realized, the amended Basic Law can be used, provided it aims to reform the Authority into a tool serving the national program and transferring its political tasks to the PLO.
The fundamental error was establishing the Authority under occupation, which misrepresented the stage of national struggle as state-building, a mirage rather than reality. Establishing the Authority under occupation, amid an imbalanced power structure, growing Arab-Israeli normalization, and the closure of margins for armed struggle, created fertile ground for internal Palestinian conflict over authority, which indeed occurred.
Hamas, which revived the liberation project, decided starting in 2005 to combine liberation and independence through a struggle for authority without changing its obligations and functions, participating in the Authority via elections. It then formed Ismail Haniyeh’s first government, led the national unity government, and eventually seized Gaza militarily, a “skyward leap” despite being a reaction to the siege, Israeli crimes, and lack of political prospects.
Conversely, Fatah’s position shifted from supporting the liberation project to endorsing the national authority program, then partial independence in liberated areas, then a Palestinian state as a final solution in exchange for the right of return. The Camp David summit in 2000 revealed the shortcomings of this approach, an incomplete state without Jerusalem, without a real right of return, and without true sovereignty. Instead of a radical review of Oslo and the settlement approach, the strategy shifted after Yasser Arafat’s martyrdom to maintaining authority and leadership through continued illusions and failed bets on negotiations, U.S. or Israeli policy changes, and unilateral political, security, and economic obligations.
The root of the problem lies in agreeing to establish an authority under occupation without a binding framework or agreed final settlement goals. With Israel free to alter facts on the ground, the internal Palestinian struggle for authority often overshadows the struggle with the occupation.
Establishing an Authority under occupation struck at the core of the stage, creating the illusion of state-building rather than national liberation.
Thus, issuing a constitution while the path to Palestinian statehood is gradually being blocked, or buried, in favor of the “Greater Israel” project, turns the effort into farce and deception. As a senior official said, “general elections will not be held for two years,” reflecting Byzantine-style debates over angelic matters while the enemy tightens its siege, preparing for a final assault. Encroaching annexation is now a dominant reality in the West Bank, and Gaza remains under colonial oversight called the “Council for Peace.” The Israeli government continues violence and enacts a Basic Law declaring self-determination for Jews only, while rejecting a Palestinian state and seeking to annex land without its Palestinian population, aiming to displace them or issue limited Palestinian or other IDs, avoiding the “demographic bomb” of an apartheid state.
Focusing on a constitution and elections now, while Gaza is destroyed, facing genocide and internal displacement, and the West Bank is under siege, resembles someone ignoring a fire in their house to debate who started it or who will lead the house after it is extinguished. These risks losing everything.
Palestinian institutions and rights face existential threats: land is being confiscated and annexed, the population faces extermination and displacement, and rights, including the right of return and self-determination, are being eroded. Representative institutions are being weakened: the West Bank Authority is blocked from returning to Gaza, the PA is dismantled in the Strip, and the PLO is weakened. Reviving the PLO, uniting various political and social forces under a renewed national charter, could safeguard unity, land, people, rights, and resistance.
Drafting a constitution under the current circumstances, and setting a date for Palestinian National Council elections, is simply not feasible, especially when there is an exclusionary condition that seeks to impose loyalty to a single program on everyone, unilaterally. This approach diverts attention from the real, pressing threats. A constitution must enjoy broad national consensus and have a credible political backer, something that can only emerge after rebuilding, renewing, and reforming the national movement. Who could possibly carry a constitution in the current state of collapse?
Similarly, calling for local elections while bypassing, or preceding, presidential and legislative elections risks reducing the Palestinian cause to a purely humanitarian issue, treating the people as mere residents with local or individual needs, without rights or representative institutions. Local councils could replace the sole legitimate representative only in delivering services, much like the technocratic committee in Gaza, and under occupation, their role is administrative, not part of the people’s struggle against occupation, as local elections were in the 1970s.
It is inconceivable that a Palestinian constitution could ignore the historical narrative or fail to preserve the right to resistance.
Can we seriously imagine a constitution that ignores the historical narrative, leaves the state’s borders undefined, fails to safeguard the right to resistance, even one recognized under international law, subordinates itself to the constraints and realities of a dire current situation, neglects fundamental rights, defines governance unilaterally, and grants sweeping powers to the president, after a political history marked by authoritarianism, weak governance, limited democracy, lack of separation of powers, and disregard for the rule of law and human rights?
In short, focusing on a constitution and calling for elections under these conditions distracts from escalating existential threats, makes it easier to bypass rights and institutions, weakens the Palestine Liberation Organization, deepens divisions, widens the gap between leadership and people, and complicates the basic conditions of life.
The only way to address these threats is through a comprehensive national dialogue. Its primary task must be to develop a national plan for the survival and resilience of the cause, the people, and the institutions, and its secondary task to confront and neutralize hostile schemes. Achieving unity and holding elections should come afterward. Unity can be realized after renewing, reforming, or both, the components of the national movement, through shared struggle that may initially proceed in parallel but ultimately move in the same direction.
