Draft Basic Law For the National Authority in the Transitional Period. PNC Legal Committee: 1 May 1994. Jerusalem Media and Communication Centre, documents. http://www.jmcc.org/politics/pna/basic1.htm, accessed 13 December 2007.
Draft Basic Law For the National Authority in the Transitional Period.
* This is the third draft which is still under discussion in Palestinian circles. It has not yet been presented to the Central Council for consideration and approval.
Dr Anis Al-Qasem, Chair, PNC Legal Committee
1 May 1994.
Chapter one – General provisions
The Palestinian people are the source of all authority which shall be exercised, during the transitional period, through the legislative, executive and judicial authorities in the manner provided for in this Basic Law.
The government of Palestine shall be based on parliamentary democracy and pluralism, with consideration by the majority for the rights and interests of the minority and respect by the minority of the decisions of the majority.
The Arabic language shall be the official language of Palestine.
The flag of Palestine shall be of the following colors and dimensions: Its length twice its width, divided horizontally into three equal parallel parts, the upper black, the middle white and the lower green, thereon placed from the base a red triangle whose base and height equal the breadth and half the length of the flag, respectively.
Jerusalem shall be the capital of Palestine. During the transitional period the Palestinian Authorities may set up the Government Headquarters in any other place in Palestine.
Sovereignty over the national resources in Palestine is vested in the Palestinian people, and shall be exploited and disposed of in the interests of the Palestinian people according to law.
(1) This Basic Law shall be the Supreme Law of Palestine in the Transitional Period and any other law which is inconsistent with any of its provisions shall be null and void.
(2) Subject to Articles 48 and 106, this Basic Law may not be amended except by a two thirds majority of the elected legislature.
I Fundamental Rights and Freedoms
Palestine recognises and respects the fundamental human rights and freedoms prescribed in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and other Conventions and Covenants which secure such rights and freedoms. Palestinian authorities shall adhere to the said international agreements.
Every person has the right to life.
Women and men shall have equal fundamental rights and freedoms without any discrimination.
All persons are equal in human dignity. No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no person shall be subjected without his free consent to medical or scientific experimentation. No effect shall be given to any statement obtained as a result or under the threat of torture, cruel, inhuman or degrading treatment.
Every person shall have the right to participate in public life and to nominate himself to public office in accordance with the law.
Every person has the right to liberty and security of person. No person shall be subjected to arbitrary arrest or detention. No person shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.
Every person shall have the right to freedom of thought, conscience and expression and publication of his opinion either orally, in writing or in the form of art or through any other form of expression, subject to observance of restrictions imposed by law for the respect of the rights or reputations of others, the protection of national security or of public order or of public health or morals.
The freedom of formation of political parties is guaranteed provided that their aims and activities do not conflict with the basic principles prescribed in this Basic Law and that they conduct their activities in a peaceful manner. The law shall set out the rules governing the formation of political parties.
Subject to the provisions of Article 14 of this Basic Law, the freedom of the press, printing, publication and media is guaranteed. Censorship of the press is prohibited, and no newspaper shall be subject to warning, suspension or termination through governmental or administrative action.
No person shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honor or reputation. The law shall provide protection against such interference or attacks.
Security of the home is guaranteed; it may not be entered or inspected except in pursuance of a reasoned judicial order and in accordance with the law.
Every person is entitled to own private property, interference in which shall be prohibited except in accordance with the law and for the public interest. Private property may not be expropriated except for public interest in consideration of fair compensation and in accordance with the procedure laid down in the law.
Freedom of economic activity is guaranteed. The law shall set out the rules and extent of supervision in pursuance of the requirements of public interest.
The families of martyrs, the injured and the handicapped have the right to care and rehabilitation, which shall be provided by the Palestinian authorities.
Motherhood, childhood, the family, the young and the youth have the right to protection and to the availability of proper opportunities for the development of their talents. Such protection is a duty on society to be discharged by the Palestinian authorities within the limits stipulated by law.
The law shall set out the rules pertaining to social security.
Work is a right, duty and honor. The Palestinian authorities shall endeavor to provide equal opportunities to citizens to enable them to exercise this right under laws which provide for social justice. No one shall be required to perform forced or compulsory labour except in the following circumstances: (1) Any service of a military character or any national service required by law, save for conscientious objectors;
(2) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;
(3) Any work or service which forms part of normal civil obligations.
(1) Every person has the right to education which shall be free and compulsory until the secondary stage in public institutions. The Palestinian authorities shall endeavor to provide education at all stages;
(2) Minorities, religious or otherwise, and others who meet the conditions prescribed by law shall have the right to establish private schools and educational institutions, provided they observe the general conditions laid down in the law;
(3) The education authorities shall supervise all education. Universities and centres of scientific research shall enjoy respect and autonomy in the manner provided in the law.
The right to peaceful assembly is recognised. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.
(1) The right to freedom of association with others is recognised to all persons, including the right to form and join trade unions for the protection of their rights;
(2) No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on members of thsecurity forces and the police in their exercise of this right.
No Palestinian may be deported, deprived of his nationality, prevented or prohibited from returning to or leaving Palestine or surrendered to any foreign authority except in accordance with extradition agreements.
The surrender of persons granted political asylum by the Palestinian authorities in accordance with international law is prohibited.
Every person has the right to address the public authorities on personal matters of concern to him or on public matters.
Jerusalem is a city holy to the three divine religions. In compliance by Palestine with its spiritual heritage, Palestinian authorities shall provide conditions for tolerant co-existence between religions in Jerusalem and the rest of Palestine.
Freedom of belief and worship and exercise of religious functions are guaranteed, subject to non-violation of public order or morality.
Freedom of access and visit to holy places and religious buildings and sites are guaranteed for all, citizens and non-citizens, without discrimination. Freedom of worship for the followers of such places is also guaranteed. The exercise of the foregoing, freedoms shall be subject to the requirements of public security, order and morality.
II Protection of fundamental rights and freedoms
Every person whose fundamental rights or freedoms, as provided in this Chapter and Chapter Three, have been violated shall have the right to challenge the violation before courts of law and to demand compensation, where appropriate.
An independent Commission for Human Rights with juridical personality shall be established by law to monitor and ensure the observance of human rights and freedoms in Palestine. Its formation, functions and powers shall be defined by law and shall be without prejudice to any powers given to individuals, to the Attorney General, to the Audit Office and to the Courts under this Basic Law or any other law.
Chapter three – The rule of law
The rule of law is the basis of government in Palestine.
All Palestinian authorities and organs as well as all individuals and persons in Palestine shall be subject to the law and shall be accountable for its violation. The independence of the judiciary, its immunity, respect for and execution of its decisions are basic guarantees for the protection of rights and freedoms and the establishment of the rule of law.
All persons shall be equal before the courts and the law, and are entitled to the equal protection of the law without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, birth or other status.
The right of recourse to the courts is guaranteed for everyone and no administrative act or decision may exclude its review by the courts.
Everyone charged with a criminal offence shall be presumed innocent until proved guilty in a lawful trial in which he has been afforded guarantees to defend himself. Every person charged with a serious criminal offence shall have a lawyer to defend him.
(1) Punishment is personal, and no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the applicable law and penal procedure;
(2) Collective punishment is prohibited.
Except in cases of flagrante delicto, no person may be arrested, searched, detained or have his liberty restricted in any manner or prevented from free movement, except by order given by a competent court or the prosecution service in accordance with the law and only where such is required for the needs of the investigations and security of society.
The law shall determine the period of detention on remand.
No detention or imprisonment is permitted except in places which are subject to laws regulating prisons.
Except where otherwise is provided by law, criminal actions shall only be instituted by order of a judicial body.
All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
Every person who has been arrested or detained shall be informed promptly on his arrest of the cause thereof, and shall, without delay, be informed in detail and in a language which he understands of the nature and cause of the charge against him. He shall be given adequate time and facilities for the preparation of his defence and to communicate with a lawyer of his own choosing. He shall be tried without undue delay in his presence in a manner which guarantees defence through a lawyer of his own choosing.
Judgements shall be given and executed in the name of the people. It shall be a criminal offence subject to prosecution and punishment in the manner provided in the law for any public official required by law to execute decisions of the courts to refuse or suspend such execution. In this event, the person in whose favor judgement has been given shall have the direct right to bring a criminal action before the competent court.
Chapter four – Legislative Authority
The Council of National Authority created by this Basic Law shall exercise legislative authority during the transitional period until the election of a Legislature which thereupon shall exercise the legislative authority.
The Legislature shall lay down its rules of procedure and shall prescribe the rules relating to the enactment of laws and its relationship with the Executive Authority and the formation of the Government and such law shall be treated as a sequel to this Basic Law.
The legislative authority may not be suspended nor may the immunity of its members be affected.
Chapter five – Executive Authority
I The President
The Chairman of the Executive Committee of the Palestine Liberation Organisation (hereinafter referred to as the _PLO_) shall be the President and the head of the National Authority and shall exercise the powers prescribed for him in the Basic Laws of the PLO, the resolutions of the Palestine National Council, the Central Council of the PLO and the Executive Committee of the PLO as well as the powers prescribed in this Basic Law.
Before assuming office, the President shall take the following oath in the presence of the Bureau of the Presidency of the Palestine National Council:
«I swear by Almighty God to be faithful to the Nation of Palestine and to its national heritage and to preserve this Basic Law and the law, serve the Palestinian People and faithfully carry out the duties entrusted to me according to law.»
The term of the Presidency shall be five (5) years and no person may be President for more than two consecutive terms. The first term of the first President and any successor in the transitional period shall expire with the expiry of the transitional period.
If the office of the President becomes vacant or if the President becomes permanently incapacitated, the Chairman of the Palestine National Council shall assume his powers and duties in a caretaker capacity until a new President takes office, which shall be no more than 60 days from the date of occurrence of the vacancy or the proof of permanent incapacity.
The President is the Commander-in-Chief of the Palestinian forces.
The President shall sign and promulgate the laws within 30 days after their approval by the Legislative Authority, and if not signed within the said period, such shall be deemed promulgated.
The President may grant a special pardon and commute sentences. General pardon shall be prescribed by law.
The President shall exercise his powers through Resolutions and Decrees in the manner prescribed by law.
II The council of national authority
(1) A council to be known as the Council of National Authority (hereinafter referred to as the “Council”) is hereby established. It shall be appointed by the Executive Committee of the PLO, which shall be the Council’s reference authority in the matters falling within the Council’s competence;
(2) The Council shall continue in office until the first elections and thereafter in a caretaker capacity until a government is formed in accordance with the law, rules and regulations to be established in that regard by the Legislature in accordance with Article 48.
The Council shall generally be responsible for the government and administration of the affairs of the country.
(1) The Council shall be composed of a Chief Minister and such other Ministers as the public interest may require. The resolution of appointment shall designate a Department for which the Minister shall be responsible;
(2) A Minister may hold more than one portfolio, as may be determined in the resolution of appointment;
(3) The President shall perform the powers and duties of the Chief Minister until elections are held and a government is formed in accordance with Articles 48 and 58(2).
The Chief Minister and Ministers of the Council shall, before assuming office, take the oath provided for in Article 51 of this Basic Law in the presence of the President.
Neither the Chief Minister nor any Ministers of the Council may purchase or lease any government property, not even through public auction, nor may any one of them have a financial interest in any contract concluded with government bodies, nor may he, while being a member of the Council, be a member of the board of directors of any company or carry on a trade or practice a profession or receive a salary or any other renumeration from any company or any other source.
The Chief Minister and Ministers of the Council are jointly responsible to the Executive Committee of the PLO for the general policy of the country as is within the competence of the Council and each Minister is responsible to the Executive Committee for the actions of his Department.
The Chief Minister of the Council in addition to such powers as may be granted to him by law, shall direct the work of the Council, supervise the implementation of its resolutions and the activities of the various Departments and their exercise of the powers allocated to them and the implementation of the policy determined by the Council.
powers of the various Department shall be determined by regulations made by the Council and endorsed by the President.
(1) Every Minister shall be the head of his Department and shall be responsible for all matters pertaining to his Department;
(2) The Chief Minister of the Council shall deal with matters falling within his competence and powers and shall refer all other matters for decisions by the Council.
Without prejudice to the generality of Article 59 of this Basic Law, the Council shall have the following powers:
(1) To lay down the general policy within the powers entrusted to the Council in the light of submissions by Ministers;
2) Implementation of the general policies laid down by the appropriate Palestinian authorities;
(3) Preparation and approval of the general budget;
(4) Supervision of the administrative organs;
(5) Follow up on the implementation of laws and ensuring observance thereof;
(6) Follow up performance of their duties and powers by the various Departments and all other units of the administrative organ;
(7) Consideration of the proposals and policies of the various Departments in respect of the performance of their powers;
(8) Any other powers entrusted to the Council by this Basic Law or any other law, including the legislative power in the manner set out in Article 47 of this Basic Law.
The Council shall meet regularly at the invitation of the President or the Chief Minister of the Council. A simple majority shall form a legal quorum. Resolutions of the Council shall be signed by the Chairman of the Meeting and the Ministers and shall be implementing by them, each within his competence. The Chairman of the Meeting shall be the President if he attends, or if he does not attend, the Chief Minister.
The Council shall have a Secretary General who shall organize its meetings, prepare the agenda and minutes of the meetings, follow up the implementation of its resolutions and keep the papers and files of the Council. The Secretary General shall be appointed by resolution of the Council and shall carry out his duties in accordance with instructions given by the Council or its Chairman, as the case may be. The Secretary General shall attend meetings of the Council. However, he may not participate in the deliberations unless so requested and he shall not have the right to vote on resolutions of the Council.
Every Minister shall have the following powers within his [sic] Department:
(1) Propose the general policy of the Department and supervise its implementation after its approval;
(2) Supervise the conduct of affairs in his Department and give the necessary instructions in that respect;
(3) Implement the budgetary provisions pertaining to his Department;
(4) Propose legislation pertaining to his Department;
(5) Delegate, as need be, some of his powers to the Under-Secretary of the Department, heads of divisions or senior officials of the Department;
(6) Any other powers entrusted to him by laws, regulations and resolutions made in pursuance thereof.
Each Department shall have an Under-Secretary appointed by the Council. The Under-Secretary shall administer the affairs of the Department under the supervision of the Minister concerned and in accordance with his instructions. In particular, he shall supervise the officials and employees of the Department and its divisions and shall follow up the implementation of the policy and plans approved for the Department. The Under-Secretary shall also carry out such powers as may be delegated to him by the Minister concerned in pursuance of Article 70 (5) of this Basic Law.
Each Department shall comprise the Minister and his office, the Under-Secretary and divisions as may be determined in the structural organization of the Department. The divisions shall be directly responsible to the Under-Secretary. Each Department must have central administration for financial and administrative affairs, and, where necessary, for legal affairs. These central units shall serve the whole Department as well as the councils and specialized institutions attached to the Department.
Divisions in each Department shall be established and canceled by the Minister concerned within the budgetary allocations for his Department. The resolution establishing the division shall determine its competence.
Each Minister shall submit to the Council detailed reports on the activities of his Department, its policies, plans and achievements compared with the aims set out for the Department in the general plan, and shall also submit the Department’s proposals and recommendations as to its future policy. These reports shall be submitted on a regular basis so that the Council would be fully informed of the activities and policies of each Department.
The appointment of officials and their terms of employment shall be in accordance with the laws in force in that respect.
In the provision of administrative services and attending to the rights of individuals, simplification of procedures, expeditiousness and propriety in performance shall be observed within the limits of the law and public interest.
The executive authority shall avail the widest opportunity for the participation of citizens, political parties, trade unions and other organizations in the discussion of policies before their determination, through announcing such policies and consultation with the said bodies.
The Council, its Chief Minister and Ministers shall exercise the powers and competence provided for their predecessors in legislation in force on the effective date of this Basic Law, until such laws are amended or replaced, as the case may be.
III Security forces and the police
(1) Security forces and the police are a regular force created for the service of the people, protection of society and to maintain security and public order. It shall perform its duties within the limits provided by law with full respect of rights and freedoms without prejudice or discrimination. All persons must cooperate with and assist the police in the performance of their duties.
(2) Security forces and the police shall be regulated by law.
IV Public councils and institutions
Specialized public councils and institutions shall be established by resolutions of the Council to assist the Council in formulating policies within the general fields of activity. Such councils and institutions may be autonomous bodies enjoying juridical personality exercising activities entrusted to them under their respective resolutions; in which case they shall be established by law.
V Local government
For purposes of local government the country shall, by law, be divided into administrative units and municipalities enjoying juridical personality. Each unit shall have a popular council directly elected in the manner provided in the law.
The law shall determine the competence of such administrative units, their financial resources, relations with the central authority, their role in the preparation and implementation of the development plans and supervision of the various fields of activity.
Division shall be, as far as possible, on the basis of number of inhabitants and their concentration.
VI General provisions
No administrative unit or any official thereof may sign or undertake a financial obligation except within the allocations provided for in law, and no effect shall be given to any disposition in contravention of this provision.
No administrative unit or any official thereof may take decisions or issue instructions or regulation in contravention of laws in force, and no effect shall be given to decisions, instructions or regulations made in contravention of the said laws.
Each administrative unit shall be entitled to exercise the powers, carry out the duties and issue resolutions, instructions and regulations for that purpose within the mandate prescribed to it by law.
Appointment to public offices and specialized councils and institutions shall be on the basis of competence, experience and ability to perform in accordance with the nature of the public office and functions and aims of the council or institution.
General taxes and duties may not be imposed, amended or repealed except by law, and no total or partial exemption may apply except in the circumstances provided for in the law.
The law shall set out the rules pertaining to the preparation of the general budget and for the disposition of funds allocated therein.
The law shall set out the rules governing the collection of public funds and the procedure for spending therefrom.
The beginning of the financial year shall be determined by law. If the budget law is not passed before the commencement of the new financial year, spending shall continue on the basis of monthly allocations of one twelfth of the previous budget for each month.
All that is received in taxes and other revenue must be paid to the public treasury and included in the budget. No part of the funds of the general budget may be allocated or spent for any purpose whatsoever except in accordance with the law.
An Audit Office shall be established and its autonomy shall be guaranteed by law. The Office shall be attached to the Council, and shall assist the administrative organ in supervising the collection of public revenue and spending therefrom within the limits set out by the budget. The Audit Office shall submit to the Council an annual report regarding its activities, observations showing financial violations, if any, and the responsibility arising therefrom. The Audit Office, after the establishment of the Legislative Council, shall become attached to the said Council and shall submit its report to the said Council and to the government.
The law shall provide for the immunity of the head of the Audit Office and shall give him the powers necessary for him to carry out his duties in the best possible manner.
Public loans shall be confirmed by law. A public loan may be concluded or guaranteed by a law or within the allocations prescribed for that purpose in the budget law.
Banks shall be regulated by law.
Chapter six – The Judicial Authority
I The Judiciary
The judicial authority shall be an independent authority to be exercised by the Supreme Court and other Courts in accordance with this Basic Law and any other law.
Judges shall be independent and, in their judicial function, shall be subject only to the law. No other authority may interfere in individual cases or in the administration of justice.
There shall be a Chief Justice of Palestine who, in that capacity, shall be the Head of the Judicial Authority and President of the Supreme Court. The Chief Justice shall be a judge of the Supreme Court appointed by Presidential Decree with the approval of the High Judiciary Court except that the first Chief Justice appointed in pursuance of this Article shall not require such approval.
A High Judiciary Council shall be established by law with the Chief Justice as Chairman. The law shall establish the composition and powers of this Council as well as its rules of procedure. The opinion of the Council shall be taken in respect of draft legislation pertaining to the organization of the judicial authority, including the public prosecution.
(1) The law shall provide for the rules governing the appointment, transfer, secondment and promotion of judges and other matters pertaining to the judiciary;
(2) Judges shall be irremovable, and the law shall regulate their disciplinary accountability.
A Supreme Court shall be established by law comprising:
(1) A High Constitutional Court which shall have exclusive jurisdiction of judicial review of constitutionality of laws and regulations and construction of legal provisions in the manner prescribed by law;
(2) A Court of Cassation in criminal, civil and commercial matters in the manner prescribed by law;
(3) A High Court of Justice which shall have jurisdiction over administrative and other disputes in the manner prescribed by law.
The law shall determine the types of other courts, their organization, jurisdiction and procedure.
No law, administrative order or action may be excluded from review by the judiciary.
Hearings shall be in public, unless the court determines otherwise in the interests of public order or morality, and in all cases judgements shall be pronounced in open Court.
II Attorney-General and public prosecutions
Public and Government cases shall be conducted by the Attorney-General in the name of the people.
(1) The appointment, transfer and dismissal of the Attorney-General and public attorneys in his office shall be in the manner and subject to the conditions prescribed by law;
(2) The law shall determine the powers, competence and formation of the service.
Chapter seven – Concluding and transitory provisions
This Basic Law shall apply during the transitional period, but shall not affect the powers and duties of the Palestine Liberation Organization and its organs including its powers to represent the Palestinian people in foreign and international relations and relations with foreign governmand international organizations.
Laws shall be promulgated in the name of the Palestinian people, and shall be published in the Official Gazette after signature and promulgation by the President. They shall come into force 30 days from publication unless the law provides otherwise.
The provisions of laws and legislative resolutions shall not apply except to matters occurring as from the date on which they come into force. Where required and in non-criminal matters, laws may provide otherwise.
None of the fundamental rights and freedoms enshrined in this Basic Law may be suspended, and such rights and freedoms shall remain governed by the provisions of this Basic Law and the laws enacted in pursuance thereof.
Laws, regulations and decisions in force in the Gaza Strip and the West Bank before the coming into effect of this Basic Law shall remain in force to the extent that they do not conflict with the provisions of this law, until they are amended, repealed or replaced in pursuance of this or any other law.
This Basic Law shall be published in the Official Gazette and shall come into force on the date of appointment of the Council of National Authority.