Rule of Law and Governance in the Palestinian Authority

Executive summary

The Palestinian Authority (PA) has been facing several important challenges, from humanitarian emergencies, political stalemates, fiscal deficits and high wage bills to specific governance challenges relating to ministries’ weakened capacities for planning or the absence of institutional mechanisms to aptly co-ordinate legislative and policy planning. These challenges have contributed to the Authority’s longstanding difficulty in providing adequate public services, in engaging people in the decision-making process and, as a result, in promoting their trust in public institutions. According to a recent survey administered by the Arab Barometer, only 33% of Palestinians reported trusting their public institutions (compared to 51% on average in OECD Member countries).

Rule of law is an important determinant of trust. No other policy area has a greater impact on trust given that rule of law is an essential prerequisite for ensuring the provision of public goods and services, economic development, maintaining peace and order, and the effective control of corruption.

This Review assesses the policy- and law-making processes in the PA, asserting that developing effective policies and legislation is vital to promoting rule of law, better economic and societal outcomes and hence public trust. A policy is a course of action designed to meet a goal or objective, respond to an issue or problem identified by the government as requiring action or reform. Legislation on the other hand are binding laws and regulations, which are typically created by the legislative (laws) and the executive (regulations) branch of government and which can be enforced by a court or government agency. Although separate tools, policies and legislation are interrelated and need to be used in tandem to achieve government objectives.

The Review provides actionable recommendations as well as concrete examples and guidance on how to implement them based on OECD standards and good practices as well as SIGMA standards. The forthcoming Good Practices Manual for Policy and Regulatory Planning will also support policy-makers in the PA in the implementation of this Review’s recommendations.

Towards improved institutional coordination, problem identification and policy formulation in the Palestinian Authority

The OECD Policy Framework on Sound Public Governance and the SIGMA Principles of Public Administration highlight that institutional coordination, problem identification and policy formulation processes are critical for achieving responsive and efficient governance and service delivery.

When it comes to effective institutional co-ordination around policy formulation the PA faces a number of challenges: the absence of an overall legislative plan to guide the legislative process; line ministries’ limited knowledge about legal proposals in progress; unclear mandates and no systematic criteria guiding quality control and financial assessment of new legislation. Problem identification and assessment are hampered by a lack of data and insufficient or ineffective consultation with external stakeholders. Policy formulation and legislative drafting processes do not systematically follow the Authority’s 2018 Legislative Drafting Guidelines and are instead often based on informal or ad hoc practices.

To improve institutional co-ordination, problem identification and policy formulation, the Palestinian Authority could consider:

• Streamlining the legislative planning process to foster more co-ordinated policy- and law-making and facilitate the exchange of draft policies and legislation;

• Reforming the quality control performed by the centre of government to reduce functional overlaps and duplication of work and provide policy-makers with more legal expertise and support, notably in the area of legislative drafting;

• Improving the availability and use of data and evidence for problem identification and assessment, to ensure accurate understanding of policy issues at an early stage;

• Promoting inter-ministerial exchanges and liaison with relevant external stakeholders at the early stage of problem identification, to ensure new legislation account for the pressing policy problems and challenges identified by individual institutions and civil society;

• Supporting the quality of policy formulation practices, for example by introducing a designated memo template with guidance and instructions and a new checklist with minimum quality standards for policy proposals.

Regulatory Policy in the Palestinian Authority

The OECD Recommendation on Regulatory Policy and Governance [OECD/LEGAL/0390] highlights that “regulations are one of the key levers by which governments act to promote economic prosperity, enhance welfare and pursue the public interest”. When carried out effectively, regulatory policy complements the formulation and implementation of all other policies.

The PA faces issues relating to overlapping mandates for regulatory policy, the administration of ex ante regulatory impact assessments and legislative drafting standards. Regulatory oversight functions are shared by several institutions leading to insufficient quality control of regulatory management tools. Regulatory impact assessments are yet to be carried out in practice, despite an existing formal requirement. The Authority’s 2018 Guidelines on Public Consultations are also found to be inconsistently applied – with non-governmental actors given little opportunity to provide input on draft legislation. Finally, although the PA is committed to updating its body of law to ensure consistency with international obligations, it still lacks a formal requirement to carry out ex post evaluations of regulations.

To improve regulatory policy, the Palestinian Authority could consider:

• Developing and publishing an explicit, formal, and binding whole-of-government strategy for regulatory policy to clearly allocate leadership responsibilities and operational duties as well as support the operationalisation of strategic objectives;

• Centralising regulatory oversight functions into one oversight body to help ensure the implementation of good regulatory practices by providing quality control;

• Formalising, organising and making systematic the process of forward planning and developing new regulations, with clear roles and responsibilities of actors involved, to increase transparency and foster buy-in with the changes occurring in the system of better regulation;

• Introducing ex ante regulatory impact assessment gradually as a default condition for any regulatory proposal to ensure that regulations meet the needs of businesses and the people;

• Providing guidance on data collection as part of the legislative drafting guidelines and making use of stakeholder input to facilitate the use of reliable and relevant evidence in support of the regulatory process;

• Making the consultation of the public a general requirement for all regulatory interventions, to ensure that regulations are designed and implemented transparently and in the public interest;

• Developing a methodology and guidance for ex post evaluation of existing legislation to ensure that they remain fit for purpose;

• Carrying out a comprehensive review of the stock of regulations and engaging with stakeholders to identify the most burdensome areas of existing legislation and ensure that regulations remain up to date, cost effective and deliver the intended policy objectives.