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What about a Constitution for Israel?
The Constitution is not an instrument for the government to restrain the people; it is an instrument for the people to restrain the government - lest it come to dominate our lives and interests. - Patrick Henry, Lawyer, 1736-1799

18 April   |   2006   |   Subject  Middle East & North Africa (MENA)

In the majority of countries, a national constitution represents a document that defines fundamental political principles and establishes the power and duties of each government. It seeks to regulate the relationship between the Executive, Legislature and Judiciary, but equally the relationship of institutions within those three branches. Most constitutions also strive to define the relationship between individuals and the state, and to establish the broad rights of individual citizens.

Moreover, some constitutions go further by highlighting the rights of their minority groups as well. For instance, a Charter of Rights and Freedoms was entrenched in the Canadian Constitution in 1982 with the purpose of protecting individual and minority rights in the legislative bodies of Canada from the 'tyranny of the majority'. Along similar lines, but on a supra-national level, the now-shelved draft Constitution for Europe also recognised for the first time the rights of minorities. It further stressed that respect for such rights is not conditional upon the acceptance by the state of the existence of such minorities in its territories. This Constitution also included in its provisions the EU Charter of Fundamental Rights that contains a non-discrimination clause relevant to the denial of the rights of minorities.

In a nutshell, therefore, a constitution is the basic law from which all other laws are derived, and it becomes codified when all those laws are assembled in one document. This is in fact the case of the majority of countries across the world. However, in the case of Israel, New Zealand and the United Kingdom, the constitutional laws are not all contained in one single document but spread out over several different documents, laws and conventions.

Let me focus on Israel for the purposes of my paper. Although its Declaration of Independence promised that the constitution would be completed before the end of 1948, it seemed that the gap between the religious and secular demands of Israeli Jews proved too unbridgeable for a unifying document that is tantamount to a constitution. Many religious Jews opposed the idea of a codified constitution that would nominally enjoy any higher authority over their religious sources and texts, namely the Torah , Tanakh , Talmud and Shulkhan Arukh (Code of Jewish Law). Indeed, a previous leader of the ultra-orthodox Shas party, Aryeh Deri, stated once that he would refuse to lend his name to any such constitution even if it were no less than the Ten Commandments themselves.

In 1949, however, the Knesset (Israeli Parliament) set up a Constitution, Law and Justice Committee that would draft this document piecemeal and every single one would be called a Basic Law. The eventual intent was to consolidate those different laws into a complete and codified constitution. But faced with diverse difficulties, the Israeli solution was the adoption of a 'building-block' method whereby the Knesset passed a compromise resolution in 1950, known as the 'Harari decision' (after Knesset member Izhar Harari) that approved a constitution in principle but postponed its enactment until a future date. The resolution stated that the constitution would be evolved "chapter by chapter in such a way that each chapter will by itself constitute a fundamental law." It stipulated further that "the chapters will be submitted to the Knesset to the extent to which the Committee for Constitution, Law, and Justice completed its work, and the chapters will then be incorporated into the constitution of the State."

To date, however, Israel has not overstepped this interim phase and still has an uncodified (unwritten) constitution in the form of different pieces of legislation (Basic Laws) that outline the legal and political structures of the country. Until 1988, nine Basic Laws were passed that pertained to the institutions of the state. Thereafter, in 1992, the Knesset passed the first two Basic Laws that related to rights. These two documents - Human Dignity and Liberty and Freedom of Occupation - are both incomplete in the legal sense of a Bill of Rights (more so since the former document does not include the right to equality, as it aims to anchor the values of the State of Israel as a Jewish and democratic state), but they have gradually constituted the basis of the powers of Judicial Review by the Supreme Court.

Over the years, a number of successive attempts were made to introduce proposals for a constitution. As far back as August 1987, for instance, the Public Council for a Constitution for Israel launched a campaign to enact a constitution. The group, led by Ariel Reichmann, Dean of the faculty of law at Tel Aviv University, argued that most of the Basic Laws were merely regular laws that could be amended by a simple majority vote of the Knesset . A written constitution, in contrast, would spell out the relationship among the different branches of government and establish a type of secularised bill of rights between the individual and the state. Although unsuccessful, the group advocated, inter alia , the safeguarding of all Basic Laws so that only a two-thirds or three-fifths parliamentary majority could rescind them.

Prior to the Israeli elections of 28 th March, some EU-based pundits had mooted the idea that the newly elected Knesset might conceivably address itself the task of drafting such a document. According to some reports, a new 9,000-page constitutional draft already offers no less than four alternatives, complete with commentary, for many of its provisions. One version of the first clause stipulates that "Israel is a Jewish and democratic state." Draft alternatives identify Israel as "the state of the Jewish people" or "the state wherein the Jewish people are realising their right to self-determination." A fourth option avoids the issue entirely, advising against making a statement about the state's character.

In my opinion, Israel today faces two key challenges in its attempts to codify a constitution. The first one is the fact that its religious parties have consistently striven to entrench the monopoly of the Orthodox rabbinate on personal status issues such as marriage, divorce and burial of Israeli Jews let alone on commerce and transportation restrictions on the Sabbath. This intra-Jewish challenge, however, becomes even more tenuous when considering that there is also a parallel debate in Israel querying whether the term "Jewish" carries with it a secular Zionist or religious meaning. The monopoly, therefore, is one that not only pits concepts of "secular" versus "religious" in Israeli Jewish society, but also pits political establishments against the grip on power by the haredim religious parties. Hence arises one deadlock that becomes manifest in the fractious - and ultimately short-lived - coalitions of successive Israeli governments.

Another major challenge hampering the codification of a constitution is the paradoxical - and often conflictual - dual identity of Israel as a state that contends to be both Jewish and democratic. Indeed, this overwrought disparity is perceived across many sectors of society, from cultural to welfare and educational. For instance, Section 7A(1) of Basic Law The Knesset 1958, as amended in 1985, simply bars the participation of candidates or lists in elections if they deny 'the existence of the State of Israel as a Jewish and democratic state'. This law is further cohered by Section 5(1) of the Law of Political Parties 1992 that repeats the same bar as well as by the Knesset Regulations whereby the Knesset will not approve a bill that 'denies the existence of Israel as the state of the Jewish people'.

There is constitutional inequality in Israel between the majority Jewish citizens and the Palestinian minority forming roughly 20% of the population. This clear inequality is often glossed over, even in Israeli courts if one reads the law reviews of cases such as Ben Shalom (1988, about equality in political participation) or Ashgoyev (1988, about national identities) that have afforded primary status to the Jewish character. Such unequal distinctions focus on Israel's Jewish identity and immigration policies that favour Jewish citizens and exclude non-Jewish ones. Over the years, the Palestinian minority in Israel have opposed this policy, and the Arab political parties in the Knesset (10 seats collectively for Balad , Hadash and Mou'akha today) as well as non-governmental organisations working in Israel have endeavoured to defend the rights of this minority group, and therefore to protect it against further institutionalised discrimination. Such tactics notwithstanding, I would argue that equality for the Palestinian minority would not be achieved through individual rights alone. It is true that Israel's Declaration of Independence promised those citizens equal rights, and recent Supreme Court rulings have given those rights further grounding, but the Palestinian minority continues to suffer from severe discrimination and many of its daily concerns (in addition to political ones) remain unaddressed - among them, the decades-long lack of better schools, roads, health care and job opportunities in their towns and villages.

Any document that purports to become a constitution with broad and equal rights for all its citizens mutatis mutandis should recognise the rights of the substantial Palestinian minority, not merely regard them as individual citizens or religious minority groups. But there is an inbuilt and unprocessed flaw: as a nation-state, Israel views itself as being mono-ethnic, not bi-national or even civic, and therefore the group-differentiated rights of the Palestinian minority become non-inclusive. The need for change is self-evident, but it is fraught with political and ideological problems. This is why it is almost a non sequitur to aver that democracy requires the protection of all religious liberties and civic equalities. However, having worked in the country for a number of years, I suspect that such a distinction might not work fully in a polarised country founded as a Jewish state and with a Jewish ethos and majority that are virulent at times in favour of their Jewish identity - just as they are dismissive of any other. Nonetheless, Israel has legal obligations under international instruments it has ratified, not least Articles 26 & 27 of the International Covenant on Civil and Political Rights 1966, and a codified constitution could help remove those discriminations between its citizens.

My question today is whether Israel could 'hammer out' a constitution amid the country's vortex of conflicting principles and commitments. I suspect not, especially in this rather grey and drab parliament. However, this is not an excuse, since a proper constitution that subscribes to universal norms and values could provide a new legal paradigm upon which future generations would debate the terms of any possible synthesis between Israel's Jewish identity and the principle of democracy. F or the success of any constitutional process, however, lawmakers must break free of archaic, exclusivist and ethno-national dogmas that constitute zero-sum strategies. They should work instead to establish a functional balance that produces constitutional democracy according to Patrick Henry's obiter - in this case, one that undoes the stranglehold of the religious parties and also grants full and equal rights to the Palestinian minority.

© Dr Harry Hagopian   |   2006   |   18 April


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