The Palestinians have very little political control over their lives, even in the semi-sovereign parts of the West Bank known as Area A and B. A constitution could be the enabling bootstrap to change this.
There are 2.8 million Palestinians living in Areas A and B in the West Bank. Although Israel has military control over these territories, the people have enough agency to create a well functioning constitutional republic that can serve as the seed of a true Palestinian state, living in harmony with a neighboring Israeli state. A key self-initiating act is to create a legitimate, forward-looking and functional constitution.
The current problems with the West Bank government in Ramallah are almost too numerous to count. It is based on an insanely complicated and backward looking proto-constitution called the “Basic Law” that was never ratified by the people. It is headed by an 88 year old president-for-life. It claims to speak for Palestinians clearly not in its jurisdiction. It is no surprise that most Palestinians see it as a corrupt, illegitimate tool of Israeli occupation.
Of course a new constitution, no matter how good it is, is no panacea. But there is simply no reason not to try. As an upside analogy, think of the current Palestinian “Basic Law” as the failing U.S. Articles of Confederation, the current crisis in Gaza as (a super-sized) Shays’ Rebellion, and a new Palestinian constitution as the 1789 US constitution that transformed 13 squabbling states into a strong nation.
The single most important component of a successful new Palestinian constitution is legitimacy…legitimacy in its drafting and legitimacy in its ratification. The imperative of legitimacy (and doability) requires the very hard choice to include only those Palestinians who live in Areas A and B of the West Bank in the drafting and ratification process since those are the only people who will actually be governed by the document…the only (initial) constituents. (Obviously the interests of other Palestinans, including those in Gaza, Israel-proper and the diaspora, can and will be on the minds of the drafters and ratifiers.)
The second most important component of a successful constitution, after legitimacy, is a forward-looking stance. The leadership of the Palestinians officially recognized the reality of Israel's existence in 1988, forty years after Israel became an on the ground fact. It has now been almost forty years since 1988 and the new constitution needs to recognize this recognition itself as an on the ground fact. The current “Basic Law” starts with a long list of historical grievances and references to martyrs and struggles (which is in sync with the symbol of the “moderate” Fatah party: a machine gun). The challenge for today’s Palestinians is creating good internal governance, not tilting at destroying Israel.
Another way the new constitution can be forward-looking is to be more open to diversity. One time tested way to do this is to make it a secular document. There is no reason why Palestine’s constitution needs to be like those of Iran or Saudi Arabia with their sectarian references to sharia law and an official religion. Separation of Mosque and State is good for both. In addition, the drafters could consider making Hebrew a second official language (after Arabic) in anticipation of the fact that some of the current Israeli “colonial settlers” in the West Bank may someday become legal immigrants (or even citizens) of a future bi-national West Bank Palestinian state.
The third important component of a successful constitution is simply that it be functional. The Palestinians can draw on hundreds of years of trial and error here. The executive role in the current “Basic Law” is fatally flawed by a presidential/prime minister tension crafted around the personalities of past incumbents. More importantly, the new constitution needs to clearly identify itself as the supreme law of the land rather than legacy institutions such as the liberation organizations of old.
A good constitution is a necessary but certainly not sufficient element of good governance, but it could be a start. It could be the spark that ignites a peaceful and prosperous future for Areas A and B in the West Bank and eventually the rest of the occupied territories.