Draft of the Provisional Palestinian Constitution: Features of the Transitional Phase and Questions of Timing and Powers

Palestinian President Mahmoud Abbas announced the submission of the draft 'Provisional Constitution of the State of Palestine' for public discussion, opening the door for institutions and the public to submit their observations within a sixty-day period. This step comes after a seven-month gestation period of continuous work by the drafting committee formed by the Palestinian presidency in August of last year.

This draft is a new attempt to frame the transition from the national authority phase to the embodiment of the state, and it is not the first attempt in Palestinian history; it was preceded by drafts that underwent revision since 1999, leading to the 2003 version, whose committee was chaired by Nabil Shaath at the time.

The current path began on August 18, 2025, with a presidential decree to form a committee headed by Dr. Mohammed Al-Haj Qassem, which included prominent legal, political, and community competencies. The committee was entrusted with the task of drafting a document consistent with the Declaration of Independence and international law to serve as a legal basis for the transition towards an independent state.

Over seven months, the committee held about 70 intensive meetings and workshops, culminating in the submission of the final draft to the President on February 5, 2026. The committee presidency affirmed that the document adheres to the principles of political pluralism and the separation of the three powers, while enhancing the oversight role of the future parliament.

The draft consists of 162 articles divided into 13 chapters, with its preamble emphasizing the Palestinian Liberation Organization (PLO) as the legitimate and sole representative of the Palestinian people. The initial texts also stress the Arab identity of Palestine and the democratic republican system of government based on the balance of powers.

Article three explicitly states that Jerusalem is the eternal capital of the state and its spiritual and political center, while Article four designates Islam as the official religion of the state, with the principles of Sharia as a primary source of legislation, while ensuring full respect for Christianity and all other religions.

Among the most prominent new articles in this version is Article 79, which grants the head of state the authority to appoint a deputy and assign specific tasks to them or relieve them of those tasks. This amendment opens the door for new leadership arrangements that were not clearly present in the currently applicable Basic Law.

Despite the organizational nature of the draft, it faced sharp legal criticism; experts believe that the current timing is inappropriate given the existential threats facing the Palestinian cause. Legal scholars point out that the Basic Law is still valid for managing the current phase without the need for a provisional constitution.

Legal sources reported that the draft significantly expanded the powers of the President compared to previous legislation, which could upset the principle of separation of powers. Some also criticized the use of terms that diminish the prestige of the judiciary, such as replacing 'the profession of judiciary' with 'the judicial function'.

Observers noted the absence of explicit texts in the chapter on the judiciary guaranteeing the abolition of the death penalty or granting judges the right to form their own associations. Questions were also raised about the mechanism for appointing the head of the Constitutional Court, which some considered an infringement on the independence of the judiciary from the executive branch.

Politically, the former deputy speaker of the Legislative Council criticized the draft's lack of clear reference to the borders of the Palestinian state or an affirmation of the right of return for refugees. He considered that ignoring these constants in a constitutional document could raise popular concerns about the ceiling of national demands in the next phase.

There are fears that the adoption of this constitution under international pressure could marginalize the role of the Palestinian Liberation Organization (PLO), which is the legal entity representing Palestinians in international forums. Critics believe that the priority should be to strengthen the resilience of citizens amidst the war rather than being preoccupied with secondary constitutional issues.

In contrast, the Palestinian presidency defends the move as part of comprehensive reform efforts and preparation for general elections. Official sources confirm that the constitution will be the reference for amending election laws, ensuring that all political forces adhere to the national program and international commitments.

The debate remains ongoing about the extent to which this draft can achieve national consensus, especially since its last article stipulates that the document must be put to a general popular referendum. The next two months will be crucial in determining the fate of this document based on the volume and quality of observations submitted by the active forces in Palestinian society.

The draft maintained political pluralism and the separation of powers, and aims to enable parliament to exercise its oversight and legislative powers.