If there is a lasting peace deal between Israel and Gaza, the internal Gazan violence is brought to an end, and a governing entity is in place, a new Constitution to administer Gaza may have to be created and come into force. Unlike the case of Gaza's previous Constitutions, the new one must unconditionally guarantee the freedom of religion and freedom of expression to all people in Gaza (or the entire administrative territory of which Gaza will become a part).
Both the existing Constitution drafted in 2005 by the Palestinian Authority and its previous edition drafted in 2003 fell woefully short on this front. They ensured that Shari’a would be the basis of all legislation and that not all religions would be protected by law.
According to the existing Constitution, “Islam is the official religion in Palestine. Respect for the sanctity of all other divine religions shall be maintained.” This wording is problematic as it puts the power of determining which religions are divine in the hands of the Islamist government. The same document leaves no room for doubt about the requirement for the government to be an Islamist one when it states, “The principles of Islamic Shari’a shall be a principal source of legislation.”
Reading an earlier draft of the Constitution gives a clearer picture of what is meant by “divine religions.” According to the Third Draft of the proposed Constitution of the “State” of Palestine which was drafted in 2003 with the inputs of the leaders of several Islamic countries, “Arabic and Islam are the official Palestinian language and religion. Christianity and all other monotheistic religions shall be equally revered and respected.”
That wording specifies protections only for those religions they perceive as monotheistic, and it can be safely assumed that the words “Christianity and all other divine religions” in the 2005 version excludes the people of non-Abrahamic faiths who will face the full wrath of the Islamist rulers. Similarly, it protects only the places of worship of Abrahamic religions when it states, “The state shall guarantee to followers of all monotheistic religions the sanctity of their shrines in accordance with the historic commitment of the Palestinian people and the international commitments of Palestine.”
The 2003 draft also prescribed an Islamist government when it stated, “The principles of Islamic Shari’a are a major source for legislation. Civil and religious matters of the followers of monotheistic religions shall be organized in accordance with their religious teachings and denominations within the framework of law, while preserving the unity and independence of the Palestinian people.”
The corresponding section in the existing Constitution which prescribes the Shari’a law for personal affairs reads, “Matters governed by Shari’a law and matters of personal status, shall come under the jurisdiction of Shari’a and religious courts, in accordance with the law.”
This, to put it mildly, is the basis of all the barbarism that has been perpetrated by Islamists. The purpose of any Constitution must be to protect the people from legal frameworks such as the Shari’a and the actions of those who put them into practice, not to reiterate the primacy of such laws which trample upon the freedoms of people in every conceivable way.
Interestingly, Article (18) of the 2003 draft contradicted other parts of the draft Constitution when it promised that they would “abide by the Universal Declaration of Human Rights and shall seek to join other international covenants and charters that safeguard human rights,” but that is irrelevant as the reference to the Universal Declaration of Human Rights was removed from the 2005 version. The Universal Declaration of Human Rights states that “[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”
Under these principles, apostasy would not be punishable by death as prescribed by Shari’a law but would be acceptable. Additionally, the Universal Declaration of Human Rights calls for the right to freedom of expression, flying in the face of Shari’a law which imposes cruel punishments including the death penalty for blasphemy.
Now is the time to get rid of medieval era legal frameworks once and for all and set an example that the rest of the Islamic world can follow. In addition to religious rights and the right to freedom of expression, any Constitution must also guarantee the due process of law and the equal application of laws including women’s rights. These are basic requirements for the functioning of any civilized society. Cruel and unusual punishments must also be banned.
US President Donald Trump achieved the peace deal by offering Hamas a choice between “complete obliteration” and turning Gaza into the riviera of the Middle East. This offer was consistent with Winston Churchill’s observation that "force, or perhaps force and bribery, are the only things that will be respected" in the Middle East. This method of using both a carrot and a stick must be continued during the process of rebuilding Gaza.
The first step towards ensuring the freedom of religion and the freedom of expression of the people of Gaza must be to create the area earmarked for the construction of the "riviera" into a safe zone for non-Muslims, apostates who have left Islam, atheists, agnostics, and those who want to openly express their opinions against the cruelties in the name of religion and Shari’a law, and permit only such people to be admitted into this zone.
This step will draw objections from, with apologies to Spiro Agnew, the professional pessimists who are the nattering nabobs of negativism, but there is no reason to shy away from helping Muslim societies reform. Some Islamic countries themselves struggle with attempts to reform Islam and have failed because their solutions have been superficial and they have attacked only the symptoms such as the burqa or the hijab worn by women. Instead, if the cause is targeted, the reform will succeed and Muslims around the world will be grateful for their liberation as they too look forward to such freedom as was seen in Iran when young women and girls burnt their hijabs during a protest in 2022. The entire world will benefit from such reforms.
Another area that requires attention is the asymmetric relationship between the Palestinian Arabs and the people of many countries. People from Gaza must be permitted to migrate to the US or Europe and obtain citizenship, while the citizens of those countries should be permitted to migrate to Gaza and participate in the political process.
For all these efforts to succeed, it is important that Gaza be administered by the United States. However, the US should not lose sight of reforming the Islamic society in Gaza, as any American involvement without such reforms would turn into yet another failed nation-building effort without any benefits to anyone. It would also be a fatal mistake to hand over Gaza to a weak leader such as former British Prime Minister Tony Blair or to Europe which now wants to be involved.
It is only the United States (or Israel) under a strong leader which can transform Gaza. After all, as Churchill pointed out about the Middle East, “Peace has only reigned when a major power has established firm influence and shown that it would maintain its will.”
Arvind Kumar is originally from India, lives in the US. He can be reached at [email protected].