The Contribution of Judicial Review to Democratic Consolidation and State Formation in Palestine

The 2002 Palestinian Basic Law provided for the establishment of a Supreme Constitutional Court with the power of judicial review. Pending the establishment of this Court, Article 104 of the Basic Law conferred on the High Court the competence to perform this function. In the exercise of its constitutional jurisdiction, the High Court decided three constitutional objections arising from conflict between the executive and the legislature. Regrettably, the High Court’s decisions in these disputes widened the existing political division in the Occupied Palestinian Territory (OPT), rather than bridging it. The losing parties in the three cases disputed the legitimacy of the Court and its decisions, arguing that the Court had favoured the executive, which is the sole appointing authority for the High Court’s panel. In light of these developments, this thesis examines the contribution that a reformed judicial review institution might make to democratic consolidation and state formation in Palestine. The comparative literature on this topic suggests that constitutional courts may play a role in democratic consolidation where major political actors are incentivised to respect judicial independence and the Court’s role. The literature also suggests, however, that sovereignty is a necessary condition for achieving democratic consolidation. Applying this literature to the Palestinian case, this thesis argues, first, that the most important aspect of sovereignty from the point of view of a constitutional court’s role in democratic consolidation is functional sovereignty. While the OPT lacks domestic and independence sovereignty, it is conceivable that it could achieve this form of sovereignty. Indeed, effective judicial review might actually be a means towards this end. On the other hand, various aspects of Palestine’s political tradition and the amendments made to the Law on the Supreme Constitutional Court in 2006 do not augur well for successful judicial review establishment. On both sides of the political divide In Palestine, courts have been instrumentalised in service of political ends rather than treated as guarantors of rights and fair political competition. As things stand, judicial review has contributed to the political division rather than ameliorating it. The thesis concludes with suggestions for institutional reform and further research