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Legal Encounter

The New Developments of Constitutional Review in France and the Palestinian Territories

On April 27th 2011, the interested public was once more invited to a lecture that was part of the “Legal Encounter” series organized jointly by the Institute of Law (IoL) at Birzeit University and the Konrad-Adenauer-Stiftung (KAS) Ramallah. Dr. Ali Khashan, Palestinian Minister for Justice, Pierre Joxe, former Minister of the Interior and Defense in France, and Eric Milliard, Professor of Legal Theory and Public Law, at Paris Ouest - Nanterre La Défense, spoke about the differences and similarities between constitutional review and its developments in France and the Palestinian Territories.

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Dr. Ali Khashan emphasized the importance of a future Palestinian constitution both for the population as well as for the authorities, considering it a means to secure rights and freedoms. Especially against the background of the recent Arab Revolutions, Khashan believes it to be an opportunity to correctly implement existing constitutions or to adopt new ones. He explained the inexistence of a Palestinian constitution with the lack of a Palestinian state, as a constitution is the fundamental law of a state. Nevertheless, he stressed the necessity to develop a constitution by September 2011, since this is the date for which the declaration of Palestinian statehood is announced. Moreover, he argued for a popular referendum on a draft constitution.

The two next speakers agreed with the need for a constitution for a functioning state. However, they also accentuated the importance of its correct application as a touchstone for new laws. Pierre Joxe, lawyer and long-time member of the French Constitutional Council, explained that in France the possibility to review laws as to their constitutionality was only introduced in 1958, when President de Gaulle installed the Constitutional Council with four members. It was increased to hold 60 members by President Giscard d'Estaing in 1974. Since another reform in 2008, any legal person can now appeal to the Council.

Speaking to the Palestinian audience, Joxe expressed his hope to see the declaration of statehood in the fall of 2011 to be successful. He also recognized the time of his visit to the Palestinian Territories as “a special moment”, since he considers 2011 a turning point for the freedoms in the Arabian world.

In his speech, Eric Milliard highlighted that not merely the existence of a constitutional court or council is important, but also its powers and the nomination of its members. He thereby referred to the problem of such an institution's independence. As an example, he referred to the French Constitutional Council, the members of which are not required to have any legal background and are nominated by the Presidents of the Republic, the National Assembly and the Senate. Milliard also emphasized the problematic behind the decisions being taken by a majority, without publishing the names of the individual members that voted in favour of a decision. If, however, decisions could be linked to specific members of the council and dissident opinions could be voiced publicly, Milliard argues decisions would be taken with more scrutiny.

Overall, the speakers agreed on the necessity of a constitution for a future Palestinian state. They nevertheless emphasized the additional importance of an institution monitoring the constitutionality of laws. Such an institution would need to be independent from the executive and legal branches, not only with regard to its competences, but also regarding its practical implementation. Both also repeatedly named the German Constitutional Court as a positive example for independence, due to the judges' nominations from all spectrums of the political landscape, as well as the publication of all members' opinions concerning a decision.

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