The Dual Functionality of Constitutional Judiciary in Authoritarian Regimes and the Palestinian Experience

Abstract

What motivates an authoritarian system, or more precisely, its leadership, which tailors legislation to its needs, violates it at will, usurps powers and combines them as it wishes, to support the existence of a seemingly "formal" independent judiciary? Moreover, how does it allow this judiciary to challenge it by limiting its authorities and narrowing its interests? The study revisits this perennial yet contemporary question, employing the Palestinian experience as a case study. It adopts a comprehensive analytical approach, examining the orientations of the Palestinian Constitutional Judiciary (PCJ), represented by the Supreme Constitutional Court and its predecessor, the Supreme Court as a temporary constitutional court, over two decades (2002 - 2022). The study originated from the assumption that the PCJ undertakes a "dual function" akin to experiences observed in authoritarian regimes, where there is a propensity for the existence of a judiciary that allows the sacrifice of some of its non-essential interests. This sacrifice is made in exchange for its utilization in legitimizing the regime and/or reassuring investors and/or controlling the administrative apparatus. However, the study concluded that the sole central and substantive interest is the support of the alleged legitimacy of the regime, and there is no corresponding sacrifice of non- essential interests. Instead, there is an abandonment of human rights.