THE LEGISLATIVE PROCESS UNDER THE
In May 1994 the Agreement on the Gaza Strip and the district of Jericho was signed in Cairo by the Palestine Liberation Organisation and the Government of Israel. It aimed at the transfer of partial autonomy from the office of the Israeli Military Governor and its Civil Administration to the Palestinian Authority in the Gaza Strip and Jericho. A further agreement signed in Taba on 28 September 1995 has extended this partial autonomy to certain areas of the West Bank.
Specifically, the Palestinian Authority was entitled to certain legislation and executive powers,this includes basic laws and regulations. All of this legislation required acceptance by Israel before it could become law. Also, throughout the planned five-year transitional period the Israeli Military Orders were to remain in force.
The Palestinian Authority was installed in the Gaza Strip on 18 May 1994. One of the first decisions taken by Chairman Arafat as President of the Palestinian Authority was to revive the laws which were in force prior to June 1967, until such time as a unified set of laws could be established. On 17 April 1995 Arafat issued Law No.5, this supplemented the powers of the Palestinian Authority by transferring all governmental control available in the law in force in the Gaza Strip prior to 18 May 1994.
Law No.4 also established the legislative process. This involves:
1) the relevant ministry preparing the basic text of the law,
2) this is passed to the Legal Advisory and Legislative Council, part of the Ministry of Justice, which is responsible for drafting legislation,
3) the draft legislation is submitted to the President of the Palestinian Authority and his Cabinet of Ministers for comment,
4) the Legal Advisory and Legislative Council redrafts the law and submits it to the President and Cabinet for passing,
5) the text is ratified by the signature of the President of the Palestinian Authority.
It is worth noting that the law does not contain any provision for submission of draft legislation to the Government of Israel, although this is actually required by the Cairo Agreement. It is therefore unclear whether at any stage during the legislative process Israel is permitted to intervene.
It is also clear that the agreements with Israel have imposed limitations on the Palestinian Authority's power to legislate, and that Israel has maintained residual control over the limited legislative power of the Palestinian Authority. The existence of this residual power contained within the Agreement supports the maintenance of the Israeli occupation in both its legal and physical form.
The Palestinian Authority has set up the legal framework for exercising these powers through Laws No.4 and No.5 as set out above. However, a number of constitutional questions can be raised about the relationship between the role of the Palestinian Authority as legislator and in its role as the executive. Similarly, the constitutional relationship between the Palestine Liberation Organisation and the Palestinian Authority remains unclear. One example of this is that Chairman Arafat signs all decrees as
Chairman of the PLO and President of the Palestinian Authority.
The Taba Agreement has now helped to clarify the situation by providing the elected Council with the power to legislate. The elected Council will, it appears, act under the rules and constitution established by the Basic Law of 1962. However, two outstanding issues remain. Firstly, what is the status of the law in force prior to the establishment of the elected Council? And, secondly, what is the extent of the to legislate power which the executive retains" in the absence of the Council in urgent situations?
Clearly, the Press Law falls into the category of legislation passed by the executive. Would the Palestinian National Council be free to rescind these decisions? What would be the consequences of
such an action?
Numerous questions will remain unanswered until the elected Council is installed and able to establish constitutional principles between itself and the Palestinian Authority as the executive. This process will take time and it is unlikely that clear answers will be available immediately the Council begins sitting.