TRANSITIONAL JUSTICE AND ITS IMPACT ON THE DRAFTING OF THE INTERIM CONSTITUTION IN PALESTINE
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Date
2022-01-18
Authors
Abu Shams, Sameer
Journal Title
Journal ISSN
Volume Title
Publisher
An-Najah National University
Abstract
Palestinian division and the resulting deadly rivalry between factions led to the loss of many lives, undermined the Palestinian cause both nationally and internationally, and set the scene to further deterioration in the Palestinian circumstances. The current status quo dictates an end to the political rivalry between the factions in order to overcome the crisis afflicting Palestinian society, which, in turn, necessitates transitional justice to guide the way out of deterioration into such a state of affairs where it is possible to achieve progress and development, and to reinstate the status of the Palestinian cause, all while restoring democracy and tolerance between different factions of the Palestinian people.
In order to rewrite the constitution in a way that prevents misinterpretation and underdetermination; It is necessary for all Palestinians to unite and end the internal division that swept the Palestinian political scene. This can be achieved by bringing ‘justice to’ all victims of internal division, and also bringing ‘to justice’ all the violators of human rights. In line with the former, a national dialogue needs to be initiated between all the components of the Palestinian society including but not limited to organizations, political parties, and civil society entities, in which, the mechanisms of transitional justice can be applied. Transitional justice is deployed as a potential tool to help overcome the hurdles on the path of unity and national reconciliation on the one hand, and to gain common grounds to formulate a constitution and basic laws that secure unanimity. The researcher looks to achieve this by reviewing different case studies of applying transitional justice, its development, different styles of constitutions, and the development stages of the constitution in any given state. The researcher concludes by proposing a mechanism for implementing transitional justice that befits the Palestinian people and their crisis, and reach an accord that results in a constitution suitable for the Palestinian case.
The dissertation reviews international cases of transitional justice and holds comparisons between different cases and their applications according to the differing circumstances. The dissertation also addresses the processes implemented in proposing and developing laws and legislations to maintain public order and to pre-emptively eliminate the seeds of future conflict. One of the areas addressed in the dissertation is the behavioral conduct of the Palestinian legislator and whether and how such behavior could impact on the level of impartiality, all while considering external factors as well as internal conflicts. Several laws are analyzed to account for their context, content, and the objective to be achieved by implementing them while highlighting the potential ulterior motives. The dissertation also uncovers the long-lasting ramifications of so many laws that impacted on the political and legal landscape; such laws especially the irreversible ones, since reversing the law will cost more than addressing their ramifications. The researcher formulates a proposition that the population affected by the impartial laws and legal underdetermination, will champion transitional justice as a means of addressing the negative status quo.
The dissertation makes recommendations to lead the way out of the legal limbo and into a temporary constitution that is precise, concise and capable of addressing all points of conflict and proposing solutions. Hence, the researcher’s assertion that the legal and legislative underdetermination negatively impacted on the outcome of different factions’ disparate interpretation of named laws and as a result were used to justify mutual hostilities.
Description
Palestinian division and the resulting deadly rivalry between factions led to the loss of many lives, undermined the Palestinian cause both nationally and internationally, and set the scene to further deterioration in the Palestinian circumstances. The current status quo dictates an end to the political rivalry between the factions in order to overcome the crisis afflicting Palestinian society, which, in turn, necessitates transitional justice to guide the way out of deterioration into such a state of affairs where it is possible to achieve progress and development, and to reinstate the status of the Palestinian cause, all while restoring democracy and tolerance between different factions of the Palestinian people.
In order to rewrite the constitution in a way that prevents misinterpretation and underdetermination; It is necessary for all Palestinians to unite and end the internal division that swept the Palestinian political scene. This can be achieved by bringing ‘justice to’ all victims of internal division, and also bringing ‘to justice’ all the violators of human rights. In line with the former, a national dialogue needs to be initiated between all the components of the Palestinian society including but not limited to organizations, political parties, and civil society entities, in which, the mechanisms of transitional justice can be applied. Transitional justice is deployed as a potential tool to help overcome the hurdles on the path of unity and national reconciliation on the one hand, and to gain common grounds to formulate a constitution and basic laws that secure unanimity. The researcher looks to achieve this by reviewing different case studies of applying transitional justice, its development, different styles of constitutions, and the development stages of the constitution in any given state. The researcher concludes by proposing a mechanism for implementing transitional justice that befits the Palestinian people and their crisis, and reach an accord that results in a constitution suitable for the Palestinian case.
The dissertation reviews international cases of transitional justice and holds comparisons between different cases and their applications according to the differing circumstances. The dissertation also addresses the processes implemented in proposing and developing laws and legislations to maintain public order and to pre-emptively eliminate the seeds of future conflict. One of the areas addressed in the dissertation is the behavioral conduct of the Palestinian legislator and whether and how such behavior could impact on the level of impartiality, all while considering external factors as well as internal conflicts. Several laws are analyzed to account for their context, content, and the objective to be achieved by implementing them while highlighting the potential ulterior motives. The dissertation also uncovers the long-lasting ramifications of so many laws that impacted on the political and legal landscape; such laws especially the irreversible ones, since reversing the law will cost more than addressing their ramifications. The researcher formulates a proposition that the population affected by the impartial laws and legal underdetermination, will champion transitional justice as a means of addressing the negative status quo.
The dissertation makes recommendations to lead the way out of the legal limbo and into a temporary constitution that is precise, concise and capable of addressing all points of conflict and proposing solutions. Hence, the researcher’s assertion that the legal and legislative underdetermination negatively impacted on the outcome of different factions’ disparate interpretation of named laws and as a result were used to justify mutual hostilities.
Keywords
justice, constitution, transitional, interim, law.