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Israel’s Constitutional Moment

By Daniel Polisar




 

Israel’s first elections, in January 1949, were called to choose the members of a constituent assembly, whose sole aim was to draft a constitution. Yet the members of that body opted to transform themselves instead into a standing legislature, and to make do with a series of Basic Laws intended, at some future point, to form the basis for a constitution. As Prime Minister David Ben-Gurion, the architect of this decision, explained, “We don’t have time for this matter now. We need to build houses for new immigrants. We can create a constitution when we have some breathing room.” In his view, the citizens of Israel, making up less than 10 percent of the world’s Jewish population, lacked the authority to determine for future generations the character of the Jewish state: “When the Jewish people will come to Israel, it will create for itself a constitution…. When there are five million Jews in Israel, they can break their heads on drafting a constitution.”

In the 56 years since then, Israel has absorbed waves of immigrants, but has remained one of the world’s two democracies (alongside Great Britain) lacking a written constitution. In July 2000, however—less than a year before Israel’s Jewish population reached the five-million mark—the Jerusalem-based Israel Democracy Institute (IDI) launched the most ambitious effort in the country’s history to draft a constitution. Under the chairmanship of former Supreme Court President Meir Shamgar, IDI established a Public Council—approximately 100 legislators, public figures, jurists, and scholars representing a range of social and ideological groups—whose aim was to produce a “Constitution by Consensus.” After fewer than a dozen two-day sessions spread over three years, IDI’s Public Council handed the work over to an eight-member committee, chaired by Shamgar, and consisting entirely of IDI research fellows. Since February 2003, this smaller and far more homogeneous group has succeeded in hammering out a nearly complete text. In February of this year, this draft was formally presented to the Public Council, accompanied by a massive public-relations campaign. The next step, according to the IDI leadership, is to present a final version to the Knesset and ask that body to use it as the basis for creating the nation’s constitution.

People familiar with Israeli legal history might easily conclude that the IDI effort—like the 24 previous draft constitutions that have been prepared in the past by political parties, civic organizations, scholars, and rabbis—has little chance of passing the legislature. Such a dismissal would be wrong. IDI’s Public Council boasts an impressive and influential roster, including 22 current Knesset members and 18 former or current government ministers. More important, perhaps, is the fact that the IDI campaign dovetails with a major constitutional initiative on the part of the Knesset. Since May 2003, the Law, Constitution, and Justice Committee, which has the legal responsibility for developing a constitution, has undertaken the legislature’s first sustained effort in half a century to do so. Under the leadership of committee chairman Michael Eitan (Likud), committee members have held 55 working sessions and, according to Eitan, aim to complete a draft during 2005 and pass it on to the full plenum in advance of the next elections, scheduled for November 2006. Eitan’s goal is for the Knesset to debate, amend, and enact a constitution during the coming term.

Though there is no guarantee that Israel will adopt a constitution in the near future, the continuation of the status quo can no longer be taken for granted. And if a constitution does in fact pass, it will contain crucial provisions shaping the character and regime of the Jewish state for generations. The questions must therefore be asked: Is a constitution good for Israel? Should IDI’s “constitution by consensus” serve as its basis? And if not, what is the best way to develop and ratify a constitution that can provide a sound basis for a Jewish democracy?

 

The case for a constitution is as simple as it is powerful. Israel needs such a formative document in order to strengthen its democratic regime, which has been undermined by the growing inability of the nation’s elected representatives to steer the country’s course; and to preserve its character as the state of the Jewish people, which is being eroded by universalist and post-national ideologies that have made inroads in academia, the legal establishment, and the government bureaucracy.

Israel’s democratic governance suffers from a growing imbalance of authority among its three branches. The Knesset, which is the repository of the popular will and is charged with translating the values and interests of the citizenry into laws, possesses virtually unlimited powers in theory; Israel is, after all, a parliamentary democracy in which the executive lacks veto power and must maintain the confidence of the legislature to govern. In practice, however, the Knesset is permanently hamstrung by an electoral system that features the world’s purest version of proportional representation: Any party list that garners 2 percent or more of the vote earns seats in the 120-member legislature, in direct proportion to its share of the vote. This system, rather than creating a majority that can govern effectively, mirrors within the legislature all the key divisions in society, and gives an incentive for politicians to court the extremes in the hope of differentiating themselves from their competitors. In the January 2003 elections, for example, 14 separate lists earned seats; taken together, the two “major parties,” Likud and Labor, won fewer than half the available mandates. This fractiousness, coupled with the fact that the most talented Knesset members are elevated to government ministries, means that the parliament is rarely capable of independent action, especially with regard to the value-laden issues for which it bears primary responsibility.

The judiciary, on the other hand, has stepped into the void, and regularly makes decisions that by any conventional understanding of the division of powers should be reserved for the legislature. Supreme Court President Aharon Barak, who in 1992 declared a judicially-led “constitutional revolution,” is well known for proclaiming that “the whole world is filled with law” and that “everything is justiciable.” In keeping with this philosophy, the Supreme Court has involved itself in a series of value-laden controversies and issued rulings that flew in the face of legislative intent, such as criminalizing mild corporal punishment by parents, despite the fact that the Knesset had explicitly declined to take such a step when revising the criminal code; declaring “unconstitutional” the decades-old policy of Jewish settlement on land owned by the Jewish Agency, although the policy was grounded in legislation passed by the Knesset; and requiring the Interior Ministry to recognize the lesbian partner of a child’s mother as his second “mother,” even though Israeli law does not recognize homosexual marriages and stipulates that “adoption may be carried out only by a man and his wife together.” These and many similar decisions, which might well be reasonable were they made by a popularly elected legislature, constitute a clear flouting of the democratic spirit when they are enacted via rulings made by a handful of appointed judges.

What makes the court’s activism especially problematic is the unique Israeli system of judicial appointments, which functions without any effective democratic controls. The nine-member Judicial Appointments Committee is dominated by an unelected bloc consisting of the Supreme Court president, two of his court colleagues, and two representatives chosen by the National Bar Association. Together with the justice minister, who traditionally supports the position of the justices, this creates a working majority of six, and neutralizes the influence of the three elected officials who are supposed to reflect the public’s values. Supreme Court justices, in effect, choose their own successors, with the none-too-surprising result that the court’s members over time have become ideologically homogeneous—and generally hold views that lean far more toward abstract universals than toward affirming the particularly Jewish character of the state. As such, the views of the court have become largely inconsistent with the values of most Israelis. (See Mordechai Haller, “The Court that Packed Itself,” Azure 8, Autumn 1999.)

The executive branch, for its part, tends to wield too much power in its relations with the Knesset, and too little relative to the judiciary: A variety of ministerial bureaucracies make administrative decisions on profound questions of values, while the legislature lacks even the staff to carry out proper oversight, let alone the ability to step in and become involved in the decision-making process. In public education, for example, virtually all decisions—including radical changes in public-school curricula during the past decade—are made by appointed committees composed of academics whose views are often quite far from those of the parents, teachers, and students whose lives are directly affected by them. The result has been, again, a significant dilution of Jewish-national content in history, civics, and other classes that hold the key to shaping students’ understanding of the country in which they live.



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