Based upon the Oslo-II Accord (28 September 1995) the West Bank and the Gaza Strip were divided into so-called A, B, and C Areas. In the A Areas both the civil and military administration is in the hands of the Palestinian National Authority (PNA). In the B Areas the civil administration is in the hands of the PNA, whereas the military administration remains under Israel’s control. In the C Areas both the civil and military administration remains under Israeli control. In practical terms, the PNA currently has formal control over 18.2 percent of the total territory. Israel retains control over Palestine’s external security, air space, sea lanes and electromagnetic sphere.
Despite still awaiting the conclusion of the permanent status negotiations with Israel, the Palestinian Authority (PA) has the institutional features of a state, with a legislative branch (Palestinian Legislative Council, PLC), an executive branch (the government) and a judicial branch that is nominally independent. The PA is headed by a president, who appoints the prime minister from the PLC to lead the government.
Throughout history, Palestine has dealt with several judiciary systems, having been part of the British Mandate, Jordan (West bank), Egypt (Gaza Strip), and being subject to Israeli military occupation from 1967. Given their temporary transitional status, Palestine does not have a Constitution. Since the Oslo Accords, efforts have been made to develop an appropriate constitutional framework.
The PLC passed a Basic Law to serve as a provisional constitution during the interim period leading to eventual statehood. Article 1 of the Basic Law states that ‘Palestine is part of the large Arab World, and the Palestinian people are part of the Arab Nation. Arab Unity is an objective which the Palestinian People shall work to achieve’. It defines the Palestinian People as the source of all power, which ‘shall be exercised through the legislative, executive, and judicial authorities, based on the principle of separation of powers, and in the manner set forth in this Basic Law’. It also states that Jerusalem is the capital of Palestine.
In 1996, Yasser Arafat, chairman of the Palestine Liberation Organization (PLO), became the first president of the PNA. After his death on 11 November 2004, he was succeeded by Mahmoud Abbas (also known as Abu Mazen). Despite his term ending on 9 January 2009, Abbas is still the acting president of the PNA.
In 2005, after Israel withdrew its forces and settlers from the Gaza Strip, the first municipal elections were held since the Oslo peace accords. Signed by Arafat and Israeli leader Yitzhak Rabin in 1993 and 1995, the accords remain the basis of relations between the two states. Hamas, which had boycotted the presidential elections in 1996 and 2005, participated in these elections. It won a significant number of seats, giving it control of the councils in several of the main cities in Gaza and the West Bank. Following this success, Hamas also decided to run in the 2006 PLC elections, winning 74 of the 132 seats. Fatah obtained only 45 seats.
On 17 March 2007, after months of clashes between their supporters, Fatah and Hamas agreed to form a unity government headed by Hamas Prime Minister Ismail Haniyeh. However, this failed to bring calm and tensions culminated in a military conflict in June of that year. Hamas took control of the Gaza Strip and removed Fatah officials. Mahmoud dismissed Haniyeh, who refused to step down and continued to exercise prime ministerial authority in the Gaza Strip. The ensuing political crisis resulted in the dissolution of the unity government and the de facto division of the Palestinian territories into the West Bank, governed by Fatah, and the Gaza Strip governed by Hamas. Abbas named Rami Hamdallah as prime minister on 2 June 2013.
Once appointed by the President, the Prime Minister must form his government within three weeks (Article 66 of the Basic Law). Article 63 states that ‘the Council of Ministers (Government) is the highest executive and administrative tool, which shoulders the responsibility of implementing the program that will be approved by the Legislative Authority (PLC), except the executive jurisdictions of the President of the (Palestinian) National Authority as specified in the Basic Law, the Executive and administrative powers, shall be the jurisdiction of the Council of Ministers’.
The PLC passed a Basic Law to serve as a provisional constitution during the interim period leading to eventual statehood.
On 18 June 2005, major changes were made to Palestinian Electoral Law when the PLC ratified Elections Law No. 9. Those changes include an increase in the number of PLC seats from 88 to 132 (with six seats reserved for Christians). Furthermore, this time, a mixed system was maintained: half of the seats (66) were distributed among the various candidates based upon a national list and on the basis of the number of votes won; the remaining 66 seats, which were spread over 16 districts, were divided according to the constituency voting system.
The Palestinian Legislative Council passed this Basic Law, which states that the principles of the Sharia (Islamic law) will be the main source of legislation (Article 4). The committee of the Palestinian Judicial Authority reports to the Central Committee of the PLO, which has encouraged its work but not endorsed it.
Furthermore, the Basic Law acknowledges that the judiciary branch will be independent and will be the responsibility of the courts. Their varieties, levels, jurisdictions, and conditions for appointment of their judges will be regulated by law. The structure, jurisdiction, and rulings of the courts will be in accordance with law. The rulings will be announced and executed in the name of the Palestinian people. It also states that the judges will be independent, and not be subject to any authority other than the authority of law while exercising their duties, and that no other authority may interfere in the judiciary or in the judicial affairs. Article 171 states that the ‘Judicial authority shall be assumed by the courts under the supervision of the Supreme Judicial Council’.
It should be mentioned that the history of the Palestinian Judiciary has faced years of political instability, which ultimately resulted in the loss of the Palestinian people’s faith in their justice system. Also, Israeli occupation policies, including removing PNA control over Palestine and crippling restrictions of movement, have severely affected the operation of the Palestinian judicial system (which requires the presence of three judges, a prosecutor, a defence lawyer and a clerk for trials to be legal). Despite attempts to reform it, the Palestinian judiciary remains weak and insufficiently independent of the executive power.
The 16 governorates are (in alphabetic order): Jerusalem, Deir al-Balah (Dayr al-Balah), Bethlehem, Gaza City, Hebron, Jenin, Jericho, Khan Younis, Nablus, North Gaza, Qalqiliya, Ramallah/al-Bireh, Rafah, Salfit, Tubas and Tulkarm.
Article 85 on local administration states: ‘The country shall be organized, by law, into local administrative units enjoying juridical personality. Each unit shall have a council elected directly as prescribed by law. The law shall determine the jurisdiction ‘functions’ of the administrative units, their financial resources, their relations with central authority, and their role in the preparation and implementation of development plans. Further, the law shall determine the aspect of oversight over these units and their various activities. Demographic, geographical, economical, and political parameters shall be taken into consideration at the time of dividing the country administratively, to provide for the integrity and unity of soil and interests of the country’.
After the crisis that erupted between Fatah and Hamas in 2007 and which has left the former in control of the West Bank and the latter in control of the Gaza Strip, in reality two separate authorities were established. Governorates in the West Bank answer to the PNA; those in the Gaza Strip to the Hamas-led government. Both authorities have contributed to increasing the divide in local governance.