The Constitutional Regulation of Decrees Having the Force of Law in Situations of Necessity in Light of the Exceptional Constitutional Authority of the President of the Palestinian Authority

Abstract

This research aims to examine the constitutional regulation of decrees having the force of law in situations of necessity in light of the exceptional constitutional authority of the President of the Palestinian Authority, considering them as a tool of the executive authority to address emergency situations and ensure the continuity of the state and its vital institutions. The study derives its significance from combining the theoretical constitutional and legal dimension with the practical dimension, related to the actual experience of decrees issued following the Palestinian political split in 2007, which allows for assessing the extent of compliance with constitutional and supervisory safeguards and the protection of rights and freedoms.

The research problem is formulated around the question of to what extent the constitutional regulation of decrees having the force of law in situations of necessity achieves a balance between the exercise of the President’s exceptional authority and its legal and supervisory constraints, taking into account the practical application of these decrees following the Palestinian split.

The researcher adopted the legal analytical method to study the relevant constitutional texts and Palestinian laws, and the practical method to analyze the decrees issued in practice and evaluate their effectiveness and compliance with constitutional safeguards.

In conclusion, the study reached a set of findings and recommendations. The most significant findings include: the scope of decrees having the force of law is limited and not broad, and therefore they cannot regulate numerous matters, such as issues related to the judiciary, the formation of courts, elections, public rights and freedoms, the imposition of new penalties, or similar matters. This is because decrees having the force of law are strictly tied to addressing exceptional measures imposed by situations of necessity. Even though they carry the force of law, they are not ordinary laws, as the amended Palestinian Basic Law explicitly stipulates that such matters must be regulated by ordinary legislation rather than decrees having the force of law.

Among the main recommendations, the study advises that judicial review should not be limited to verifying the existence or absence of necessity but should extend to comprehensive oversight, including the assessment of the degree of severity of the necessity or exceptional circumstances, particularly because the theory of necessity is not a political theory. This is based on the principle of legality, which requires that the executive authority must not exceed the law under either normal or exceptional circumstances.