*A constitutional court is imperative to the state-
building process and separation of powers
*There must be focus on gender and social justice in
drafting the Palestinian constitution
* The Tunisian constitution is a unique experience
but it tells a completely different story
Introduction
Professor of Constitutional Law at Al Najah National
University Dr. Sana’ Sargali, stressed on the
importance of a constitutional court in the state-
building process and in the separation of powers.
She called for spreading awareness and a
constitutional culture among citizens and various
social sectors so as to have a broad-based
participation in drafting the next Palestinian
constitution, which expresses the convictions and
beliefs of these sectors. She also said focus must
be put on gender and social justice during the
drafting process.
Following is “Hosted by MIFTAH’s” full interview
with Dr. Sargali:
**How would you evaluate the constitutional
situation in Palestine today?
I believe Palestine today has entered into what is
called a “state of exception” even though Palestine
is not an exception. This is important to
differentiate: this state of exception is the state
when something unordinary becomes ordinary; that is,
the legal vacuum we live in today. This is a state
that emerged with the continued “state of necessity”
which we have lived in since 2007, which means that
any constitutional development or building a
constitutional phase must begin with addressing this
state. The lack of convening the PLC has given the
opportunity for the executive authority to become
the sole legislator, which completely annuls the
concept of the separation of powers in Palestine.
Furthermore, the misunderstood overlapping between
PLO institutions and the PA has paved the way for a
constitutional overlapping as well. This
necessitates a clarification of this relationship in
any constitutional system so there are clear markers
for the constitutional and political system in
Palestine.
I think a Palestinian constitutional court and its
laws provide the right for direct lawsuits in the
case of a violation of citizens’ rights. In this
case, the citizen can go directly to the
constitutional court. The question is, how much is
this right enacted. Hence, establishing a
constitutional court in this current political
situation leaves us with questions about the extent
of this court’s independence, even though it is hard
to judge these courts in the first five years of
their establishment because, unfortunately, these
courts are politicized from the beginning – or at
least they are set up to support the system that
created them. Thus, at this time, we do not know to
what extent these courts can extricate themselves
from under the cloak of the system that created them
so we can see just how strong they really are and
whether they work towards protecting and helping
citizens, or will their purpose remain to serve the
system.
**What is your take on the subject of establishing
the constitutional court? How will this reflect on
the state of human rights in Palestine?
There were concerns about creating a constitutional
court in the current constitutional situation,
especially since courts are trying to separate
themselves from the political system and prove
themselves as a strong institution among all the
others. Hence, I was not surprised by this decision.
It reminded me of a position taken by the US Supreme
Court in the famous Marbury case, where the court
did not want to appear to be affiliated with the
system, which would weaken it. Neither did it want
to lose the system so it expanded its authorities
through the judicial courts. That is why I want to
stress the importance of taking it slowly until we
see where this constitutional court will go.
**What are the most prominent legal loopholes in the
procedures within the constitutional draft
committee?
The Basic law, or the constitution in Palestine has
routinely been made absent in dialogue in favor of
more pressing interests such as the political
division. As a Palestinian citizen, I feel the
existence of independent and separate executive,
legislative and judicial institutions is extremely
important. However, from a theoretical and practical
perspective, the constitutional court could play a
political role – sometimes purely political – once
established, which results in an overturn of
political balances in the country. We all saw the
role played by the Egyptian constitutional court in
2011, which persists until today. Hence, the
establishment of constitutional courts can be a
double-edged sword.
However, in spite of these concerns, I believe we
must have a Palestinian constitutional court and we
must give it the chance to prove its effectiveness
before it becomes politicized.
For any entity that is striving to become a state,
the answer is to draw up a constitution. However the
solution may not be this; rather, this could be the
start of problems. We must ask ourselves: when
should the solution be to draw up a constitution? I
think first this must happen in a calculated and
correct manner. Unfortunately, when the
constitutional draft committee was formed in 2016, I
had hoped the discussion would be open and public.
We have had a Basic Law for a long time, but this
was supposed to be transitional. However, it has
been postponed until today. The constitutional draft
committee supposedly should have put the draft to a
discussion by all the various social sectors and
groups, which is why this should have been done in
stages. We saw the flaws in the Basic Law; we should
have worked on it before we drafted anything
temporary so that afterwards the stage of drafting a
permanent constitution could take place with the
involvement of elected and not appointed committees.
We should have ensured there was a kind of
referendum over it where the people are involved in
these discussions so it would not be something
imposed.
**Can you explain the dialectical relationship
between forming a constitutional court in the
absence of completing the Palestinian constitution
and the duality of its members’ roles?
There is not supposed to be any duality between the
constitutional drafting committee and the members of
the constitutional court. I believe this court
should distance itself from being a legislating body
and rather be a reference for the constitution to
ensure that all the principles we want in it are
there. This is a reiteration about the need for
awareness among the citizens on this issue and
agreement over the principles and foundations we
want to have in the constitution, including the
civility of the state. We may agree to this or not;
we may agree on the nature of the political system
or not; this is where the role of the constitutional
court comes in after the constitution is written.
That is, it will review it to ensure that the
principles agreed on have been enshrined in this
document.
**How can you ensure the identity of a civic state
in the constitution, which is absent in the
Palestinian Basic Law and the Palestinian draft
constitution?
First of all, we must understand the meaning of the
civic state. Do we mean a kind of separation of
state and religion? Or the absence of a military
state (military rule)? These concepts should be
clear to us. If we mean the absence of a military
state, we must be very careful that what happened in
Egypt does not happen to us; that is, the military
taking over authority. This needs foundations,
procedures and precautionary measures mentioned in
the constitution and stipulated in it. If, however,
we want a civic state, does this mean we do not want
the application of Sharia law, for example? Or do we
want to emulate the Tunisian experience in terms of
teachings on tolerance. What kind of Islamic Sharia
do we want? Would it only be applied to the Personal
Status Law?
We assume these things will be discussed at a broad-
based level and will have a sort of popular,
factional and political consensus over it, because
this is not just a decision or a phrase thrown into
the constitution. This is supposed to be a well-
calculated phrase, one which we are aware of its
impacts and meanings.
**Based on your study of constitutions, how would
you describe the Tunisian constitution of 2014 and
the Egyptian constitution in terms of the civic
identity of the state?
Tunisia represents a wonderful experience in terms
of the “best road to the destination”. That is,
Tunisians arrived at their constitution in the best
way; the Tunisian constituent association formulated
it and all sectors were represented in it. Also,
discussions over the constitution lasted a long time
and the Tunisian people participated in its making,
including through social media. However, if we look
at the content of the constitution, this is a
different story. While it does speak about the
‘tolerant spirit of Islam” and its language is
gender-strong in that it reaffirms the term
“Tunisian citizen (in the masculine)” and “Tunisian
citizen (in the feminine form)”. However, if we look
at the constitution holistically, we do not know
what the Tunisians meant by the term “the civic-
nature of the state”. This was not clear, especially
when speaking about this state, the constitution
conditions that the president must be Muslim.
Note: The content of this interview does not reflect the official opinion of MIFTAH. Responsibility of the information and views expressed in the interview lies entirely with the interviewee.