Civil
liberties in Israel are under assault.
In December 2009, Anat Kamm was placed under house arrest. Kamm, a reporter for Israel’s Walla news, allegedly stole sensitive defense
ministry documents and gave them to a Ha’aretz
journalist who ran an article about IDF violation of Supreme Court orders. An Israeli court issued a gag order,
silencing the Israeli media and government officials, inhibiting free
speech. Until the foreign press
got hold of the story, the entire incident was under wraps. Richard Silverstein, an American
journalist at the forefront of breaking the news, queried: “In what kind of country does a journalist simply disappear
with other journalists and news outlets having no recourse to publish about it?
China? Cuba? Vietnam? Iran? North Korea? Is that what Israel is aiming for? To
be no better than countries ruled by despots?”[1] This would be an outrageous quashing of
freedom of the press, but no constitution exists to protect it. The “Anat Kamm Incident” is the latest
headline to expose the troubling shortcomings of Israel’s unsustainable
domestic status quo.
The State of Israel struggles to juggle Jewish identity,
social pluralism, and democracy without a written constitution. This is a bit like sword-swallowing
while walking the tightrope blindfolded—with no net. Demographic shifts favoring the Haredi and Arab populations,
and the growing empowerment of the nationalist Right threaten to undermine
Israel’s tenuous balance of democratic and Jewish identities. Without constitutional safeguards to
protect the liberal values on which the state was founded, it is only a matter
of time before the house of cards topples. As a juvenile state with deep social divisions, it is imperative
for Israel to enact a popularly-supported constitution that ensures long term
stability and peaceful (or at least tolerant) cohabitation through the defense
of civil and collective rights.
Part I: How Israel never got a constitution.
Explaining Israel’s pressing need for a constitution
requires mention of how it never got one in the first place. UN Resolution 181 advancing the
partition of Palestine also called for the drafting and ratification of a
constitution containing universal equality and suffrage, minority rights, and
“human rights and fundamental freedoms, including freedom of religion,
language, speech and publication, education, assembly and association”.[2] On May 14th, 1948, David Ben Gurion announced
the establishment of the State of Israel, founded on the principles of “freedom,
justice and peace”. In accordance
with Resolution 181, his speech promised “complete equality of social and
political rights to all its inhabitants irrespective of
religion, race or sex…freedom of religion, conscience, language, education and
culture” under a future constitution (emphasis added).[3] The Declaration of the Establishment of
the State of Israel is the basis for Israel’s unwritten constitutional
law. Ben Gurion further stated
that a constitution was to be drafted and ratified by the Constituent Assembly no
later than October 1948. Israel’s
state of emergency during the War of Independence delayed the constitutional
process until a ceasefire could be negotiated and the country stood on terra
firma.
During Israel’s War of Independence, Leo (Yehuda Pinhas)
Kohn drafted a tentative constitution based principally on the American and
French models. His draft included
a Bill of Rights and crafted the Jewish national homeland as a state of its
citizens—Jew and non-Jew alike.
Universal equality and suffrage registered high on the priorities of
this document. Article 4 ensured
equal political and legal rights for all inhabitants of the state regardless of
race, religion, tongue, or gender.
Freedoms found in the American Bill of Rights, such as freedom of
religion, expression, conscience, and assembly were protected under law, as was
the Jeffersonian sacrosanctity of life, liberty, and property (Articles 12, 13,
and 14). Protection of religious
minorities’ rights found legal assurance under Article 15. Protection of minority linguistic and
educational rights for Arab communities were protected under Articles 5 and
25. Kohn’s constitution embodies
Western liberal precepts in its emphasis on individual rights, tolerance, and
equality.
Wary of democracy’s overthrow, Leo Kohn asserted it
would be foolhardy for Israelis to delude themselves into believing that “nothing
like [the fall of German democracy] could happen in Israel”.[4] Having witnessed firsthand the downfall
of many European democracies in the thirty years prior to Israel’s founding,
Kohn recognized Israel’s need for a constitution that enshrines civil
liberties, prevents perfidious government action, and safeguards the individual. Kohn cites the interwar constitutions
of Poland, Czechoslovakia, and the Baltic states as exemplars for Israel
because of their “special guarantees of national minority rights alongside the
accepted guarantees of individual rights”.[5] Kohn’s constitution died in utero. Had it passed, Israel might have become a state of Jews
rather than the Jewish State.
The Israeli government’s failure to
reach a consensus on a constitution between 1948 and 1950 is ascribed to two
matters: disagreement over the Jewish State’s national identity, and power
politics between First Knesset parties.
Orit Rozin recognizes identity politics as the greater impediment that
prevented the ratification of a constitution. Inasmuch as any constitution would define the state’s
religious, cultural, and ideological identity, opponents argued that “the
identity-forming aspect of the constitution was liable to ignite a cultural
controversy and even a Kulturkampf”.[6] With mass immigration anticipated from
across the Jewish world, some parliamentarians were hesitant to set the stage
before most of the actors arrived.
Even among those present there was little agreement as to how Israel
should brand itself. Some secular
representatives found the religious overtones of Kohn’s draft distasteful and
pushed for a revision completely devoid of such implications.[7]
Religious representatives opposed liberal ideologies—like gender equality and freedom of
religion—that contravened Orthodox norms, and were dead set against any
document that would effectively supersede the Torah as the Law of Israel. Although a minority, political
solidarity among the religious contingents allowed them to punch above their
class and prevent the passing of a constitution. Both sides of the religious divide questioned the status of
non-Jews in the Jewish State. How
a one-nation state identity could reconcile the existence of a non-Jewish
minority—in addition to determining what rights and responsibilities that
minority would have—was a matter of great debate. Perhaps the biblically-versed MKs recalled Exodus 1:10, when
Pharoah spoke of the Israelite slaves, and applied it to Israel’s Arab minority:
“come, let us deal wisely
with them, lest they multiply, and it come to pass, that, when there befalleth
us any war, they also join themselves unto our enemies, and fight against
us”.
Prime Minister David Ben Gurion’s unwillingness to
relinquish power, not only ideological opposition to a constitution, is another
consideration. Mapai, Ben Gurion’s party, had secured a
majority in the First Knesset and he understood that enacting a constitution that
would limit parliamentary power could undermine government capability at a
critical juncture in Israeli history.[8] A more cynical approach argues Ben
Gurion’s disinterest in divesting himself and his party of unbridled
parliamentary dominance through the passing of constitutional limitations. The Israeli parliamentary system grants
unchecked power to the ruling coalition—headed then by Ben Gurion and the Mapai party. Governments amass, not relinquish, power. Instances of the latter are exceedingly
rare, and Ben Gurion was not one of them.
Rather than engage in the requisite “negotiation and
painful compromise among different groups”, the Constitution, Law and Justice
Committee opted for what became known as the Hariri Compromise: a compromise
not to compromise.[9] Everyone agreed to disagree and let no
constitution be written, and on 13 June 1950 the Knesset resolved to
agglomerate basic legislation chapter by chapter. The First Knesset did not sort out critical state formation
problems of political and national identity, the role of religion and
non-Jewish minorities, and civil rights, and left them to fester unresolved.
In the past sixty years, the Basic Laws of Israel have
been gradually written, ratified, and amended. Starting with the Basic Law: the Knesset in 1958, they now
also include the Basic Laws of the Presidency, the Government, the Judiciary,
the Israel Defense Forces, Jerusalem, Lands, the State Comptroller, the State
Economy, and Human Dignity and Liberty, and Freedom of Occupation. The last two are the most recent
additions to the legal compendium, having been passed by the Twelfth Knesset in
1992 and 1994, respectively.
Supreme Court Justice Aharon Barak proclaimed their passing a “constitutional
revolution” and considers them a de facto Israeli constitution.[10]
Since their ratification, Barak claims, the Israeli public, executive, legislative,
and judicial branches recognize “that democracy is not just formal democracy
but also substantive democracy, based on the supremacy of values such as the
separation of power, judicial independence, rule of law, and human rights.”[11] Barak spoke overzealously. No such revolution occurred. Israel’s Basic Laws are too inadequate
to assume the title of constitution.
Part II: Constitutions
Constitutions are multipurpose documents that, in part,
fill the role of the social contact.
They define the nature of society’s political arrangement (monarchic,
democratic, totalitarian, etc.), blueprint
government machinery, and draw the purview of its branches’ powers. Out of an inherent distrust of
power-holders, democratic constitutions are “the process by which governmental
action is effectively restrained”.[12] Systems of checks and balances
circumscribe the power of the branches of government, as exemplified by the
American Constitution. A
constitution also acts as the authoritative rulebook for running government,
the qualification and election of officials, and the induction and dissolution
of government.
Outlining basic and inalienable civil rights is the next
major role. First conceptualized
in the American Bill of Rights and the French Declaration of the Rights of Man,
civil rights fall into three major categories. First is the protection of the individual from governmental
impingement and universal equality under law. These are typified by the American Constitution’s First
Amendment right of petition, Fourth Amendment protection against unlawful
search and seizure, and Amendments V-VIII’s guarantee of due process, habeas corpus, trial by jury, and
punishment fitting the crime. Equivalents
are found in the Declaration of the Rights of Man, in the German Basic Law of
1949, and most other Western constitutions.
The second category is measures to protect the
individual from social injustice.
In his text On Liberty, John
Stuart Mill states that aside from safeguarding the people from the government
there needs
protection also against the tyranny of
the prevailing opinion and feeling; against the tendency of society to
impose, by other means than civil penalties, its own ideas and practices as
rules of conduct on those who dissent from them; to fetter the development,
and, if possible, prevent the formation, of any individuality not in harmony
with its ways, and compel all characters to fashion themselves upon the model
of its own.[13]
These manifest themselves as the constitutional guarantees of freedom of
conscience, freedom of religion, and freedom of speech. Personal freedoms, according to the
German Basic Law of 1949, France’s Declaration of the Rights of Man, and
American Supreme Court interpretation, are curtailed only in the case of harm
to others.
With
the emergence of multinational states in the 20th century, legal
protection of the cultural, ethnic, and/or linguistic rights of minority groups
found their way into constitutions.
Papua New Guinea (PNG), the most linguistically and culturally diverse
country in the world[14], has
constitutional “recognition that the cultural, commercial and ethnic diversity
of our people is a positive strength, and for the fostering of a respect for,
and appreciation of, traditional ways of life and culture, including language,
in all their richness and variety”.[15] The PNG constitution takes extreme
measures compared to most constitutions to protect linguistic the rights of
Papua New Guineans. If arrested, a
citizen is entitled to state-provided interpretation so they understand the
charge, the nature of the offense, and any subsequent courtroom
proceedings. In a country where
only 12% of the population lives in urban centers in contact with global
cultures, preservation of traditional village communities and their customs is
important. Minority lifeways find legal
protection from majoritarian intrusion under the constitution. Though the American State Department
reported PNG human rights abuses including
arbitrary or
unlawful killings by police, police abuse of detainees, poor prison conditions,
police corruption and impunity, lengthy pretrial detention, infringement of
citizens' privacy rights, government corruption, violence and discrimination
against women and children, discrimination against persons with disabilities,
intertribal violence, and ineffective enforcement of labor laws,[16]
there were no reported instances of linguistic, cultural, and religious
minority rights violations, demonstrating the efficacy of the constitution in
smoothing those points of conflict.
A constitution also acts as the paramount law—a “norm of
norms”—above the government and people alike. The English Magna Carta of 1215 was the first Western law
code to place king and subjects under a common law. The Magna Carta was the seed from which a British political
culture developed. That culture of
the rule of law and democratic values upholds British democracy without need
for a formal constitution, but in that regard Britain is an exception. Hearkening back to the spirit of the
Magna Carta, the drafters of the American Constitution proclaimed:
This
Constitution…shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.[17]
A constitution’s sacrosanctity is usually protected by a requisite
supermajority vote to be amended. The
German Basic Law, for instance, requires a two-thirds majority in Parliament to
pass amendments. The Bill of
Rights found therein(Articles I to XX), however, are impervious to alteration
altogether.[18] Such measures prevent alteration on a
whim and protect the constitution from its opponents.
In praxis and in language, constitutions emulate divine
writ; they serve as an inviolable legal authority above state and citizen alike. In as such, modern constitutions
supplant human figureheads and abstract notions of patria as the object of
paramount loyalty. “The
constitution tends to become a symbol, and its provisions become so many
symbols in turn. It is this
symbolic function of words which
makes the constitution a political force,”
writes Carl Friedrich.[19] This modern social phenomenon has been
termed constitutional patriotism. By “proclaim[ing] all the values their
framers believe essential to a good society” constitutions create a common
identity for the entire citizenry based on “the norms, the values and, more
indirectly, the procedures of a liberal democratic constitution” regardless of
cultural, linguistic, religious, or racial differences.[20]
[21] The principles found in the
Constitution of the United States define the American people just as the Grundgesetz defines Germanness. Further, it is to the values enshrined in these texts that
utmost allegiance is paid. The
United States Oath of Allegiance reads “I hereby declare…that I will support
and defend the Constitution and laws of the United States against all enemies,
foreign and domestic,” and its contents are mirrored in the Presidential oath
of office and the armed forces oath.[22] It is to the Grundgesetz that utmost fealty is sworn, as the foreword to the Basic Law of 1949 reads: “We
Germans have every reason to be proud of our Basic Law and to defend it to the
best of our ability”.
Part III: Shortcomings of the Status Quo
The absence of an Israeli constitution bodes ill for
many reasons. There is a complete
lack of provisions for the primacy of the Basic Laws over future Knesset
legislation or the hodgepodge of existing Israeli laws. The Basic Law: Human Dignity and
Freedom—the closest thing Israel has to a Bill of Rights—is not legally
entrenched like its foreign counterparts.
It doesn’t require a supermajority, or even a regular majority, to be
amended.[23] The Supreme Court has ruled that “the
Knesset could do pretty much what it wanted,” including suspend or abolish a
Basic Law, “to protect the Jewishness
of Israel”.[24] Until now the Supreme Court has been a
bastion of liberality in supporting civil rights and striking down violating
legislation, but this is happenstance. A determined parliamentary coalition under an
non-interventionist Court could revoke civil rights in the name of a nebulous
notion of “Jewishness”.
Just as the Basic Laws can be amended or repealed by
ordinary Knesset proceedings, so too were they created. Unlike the American Constitution, which
was assembled by a constitutional convention outside governmental politics, the
Israeli Basic Laws were drafted and ratified by elected officials with
political interests. Inasmuch as
“the people are the source of authority for the constitution and the values and
institutions it affirms”, the Israeli Basic Laws insufficiently encapsulate the
will and identity of the Israeli populace.[25] Representatives of the body politic
outside government have little to no role in their creation. Few governments legislate limitations
on its purview of power; any such modifications must come from without by
persons with no vested interest in maintaining the status quo.
Granting the Knesset such unchecked power is
dangerous. In the American Constitution
a tripartite division of governmental power limits the potential for abuse. Free-reigning legislature is shackled
by a Supreme Court that can strike down unconstitutional statutes. Gordon S. Wood warns that a
constitution-less state like Israel that “appoints a legislature, without any
reservation of the rights of individuals, surrenders all powers in every branch
of legislation to the government”.[26] The current configuration accords
unchecked power to the Knesset with no real regulation. The Supreme Court’s authority to
interpret constitutional matters is not firmly grounded, being limited
exclusively to legislation contravening entrenched statutes. Prejudicial or conflictual legislation
found in the rat’s nest of Israeli law predating 1995 can not be retroactively
uprooted. New laws may be reviewed
but problematic ones, like the Law of Return and the British Defense Emergency
Regulations 1945, are untouchable.
Judicial review is limited in theory and practice to “cases in which
there is a fundamental divergence from the basic principles of the system,”
those being, in the words of the Basic Law of Human Dignity and Liberty, “the
values of the State of Israel as a Jewish and democratic state” in that order.[27] Former Supreme Court Justice Meir
Shamgar argues that an entrenched constitution would
provide for a
framework of ordered freedom within a set of rules which prevents both
majorities and their elected parliamentary representatives from acting against
the basic freedom of individuals, minorities, or the definition of the power of
public authorities.[28]
Without an
interventionist judiciary preventing parliamentary abuse of power, the Basic
Laws gird civil liberties in paper-thin armor. As we have seen in the Anat Kamm Incident, a Supreme Court
ruling against assassinating terrorists when arrest is possible was flouted by
the IDF. The only repercussions
were those Kamm suffered for exposing this dangerous erosion of Supreme Court
authority.
Judaism
is a comingling of nationhood, religion, and culture. Therein lies the problem of Israel’s definition as a “Jewish
and democratic state”. To what
extent ought the Jewish religion play a role in the running and identity of the
Jewish state, and who says which interpretation is authoritative? At Israel’s inception, Ben Gurion
consulted Jewish scholars worldwide about civil identity and how the Jewish
state should mitigate religion.
Sir Isaiah Berlin’s reply in 1959 is as relevant as the day it was
written:
…the civil status
of the State of Israel must be sharply and definitively divided from Judaism as
an established religion … and that this is the moment to establish once and for
all the principle that a modern liberal State is, and must be, secular in
character and that the religion of its citizens must be, in so far as it is a
state and nothing else, indifferent to it….[29]
No such arrangement segregating religion and state materialized. As Western democracies go, Israel has a
greater intermingling of religion and state than any other.[30] Freedom of religion does not exist in
the Holy Land.
Ben Gurion’s Status Quo Agreement conceded public
observance of the Sabbath and kashrut,
separate state-funded religious schools, and rabbinic management of personal
status in exchange for political support from the Orthodox parties.[31]
Insofar as the state is concerned, Orthodoxy is the only Judaism, and who
qualifies as a Jew is determined by the Orthodox Rabbinate. In Israel, citizenship and nationality
are two separate concepts. Those
Israelis considered Jewish by the Orthodox establishment are Jewish nationals,
whereas non-Jews are conferred national status based on their religion
affiliation. There is no civil
marriage under Israeli law.
Although foreign marriage certificates are recognized, in Israel Jewish
citizens can only marry Jews, and the ceremony must be presided over by an
Orthodox rabbi. Burials must have
a rabbi present, and only Jews can be buried in state-sponsored cemeteries.
Official preference of one faith over another in
religiously divided societies breeds conflict. India, Canada, and Republic of the Philippines exemplify divided
societies that utilize constitutions to establish the rule of law and protect
individuals as well as ethnic, linguistic, and religious communities. Each country consists of a number religious
groups lumped into a single state, and each mitigates majoritarian maltreatment
of minorities through constitutional measures. Canada makes no specific separation of church and state—some
Catholic schools are government-funded—but grants the unbounded practice of
religion. The Indian government,
reigning over a subcontinent chock-full of faiths, takes a stance termed
“principled distance”, whereby the state can interfere in religion (either
helping or hindering) in order to reduce intra- and inter-religious conflict.[32] The Philippines takes an American-esque
approach by completely removing religion from state affairs.
Secular Jews and non-Jews together
constituting a majority of the country’s population, the time has come for
Israeli identity to be divested of its religious trappings. How can a large portion of Israel’s
population uphold the current state if they do not associate with its abstract
concept of judeonationalism?
As it currently stands, the Jewish religion’s privileged role in state
affairs undermines national cohesion by excluding those who do not identify
with the official state religion—over 30% of the population. A constitution that recognizes citizens
as individuals rather than members of a nationalist grouping is necessary to
prevent a national identity crisis.
An Israeli constitution needs to separate Israel from Judaism the
religion and make the state indifferent to the religious identities of its
citizens.
How can this democracy endure without
endowing its populace with democratic constitutional patriotism? The Basic Laws not only do not define
Israeli national identity, but do not instill democratic principles upon the
citizenry as the American constitution does. Whereas in the United States the principles found in the
Constitution serve as the foundation for American patriotism, no such guiding
light or expression of “We the People” exists in Israel. Professor Rafi Cohen-Almagor notes the
absence of the teaching of democratic principles—liberty, fallibility, equality
and tolerance—to Israeli schoolchildren, and that Israel does not
have a shared
raison d’être with 20 percent of its population—Arabs….And then there is
another 25 percent Orthodox or ultra-Orthodox who’d be happy to replace
democracy with theocracy….On top of that, we have another 20 percent,
immigrants from the Soviet Union, who know nothing about what democracy is all
about, who are suspicious about government and have never lived under
democracy.[33]
An Israeli constitution should encapsulate these missing values in a
digestible form so as to bestow a passion for democratic principles and a sense
of constitutional patriotism that Arab, secular, and religious Jew can rally
around.
As they presently stand, the Basic Laws do not meet the needs of the
Israeli body politic. None of them
address the deep ethno-cultural rifts in Israeli society, leaving subgroups
vulnerable to legal and social marginalization. Several fundamental rights remain unprotected by law—most
notably freedom of expression, freedom of demonstration, freedom of religion,
and freedom of assembly—and their absence “leave[s] the door open, at least
theoretically, to contradictory legislation” that would strip Israelis of their
inalienable rights.[34]
Erosion of rights seems underway already in light of the infractions
against said freedoms thus far in 2010.
The Mossawa Center reported in March that the Knesset tabled at least
twenty one bills discriminatory against Israel’s Arab population, up from
twelve in 2009 and eleven in 2008.
The authors of the report were quoted in Haaretz as saying: “there has never been a Knesset as active in
proposing discriminating and racist legislation against the country’s Arab
citizens”.[35] Further, bills were proposed that contradict
freedom of expression. One such
bill called for the incarceration of anyone who publishes or says anything that
would “bring contempt upon or discomfort to the country”. In another instance from January,
Minister of Culture and Sports Limor Livnat pulled Israeli Film Fund financing
from the controversial movie Lipstikka, a
Palestinian adaptation of director Jonathan Sagall’s mother’s Holocaust
survival story. Livnat’s decision
to withhold NIS 1.3 million killed the project. Noam Sheizaf of the Promised
Land blog aptly commented: “Allocating funds
according to the political message of films means that from now on only certain
views would be allowed to be shown”.[36] That same month Hagai El-Ad, head of the Association for Civil
Rights in Israel, was among several arrested for protesting the usurpation of
Palestinian homes in Sheikh Jarrah, East Jerusalem. Cracking down on left-wing protests comes in conjunction
with Justice Ministry attempts to pass legislation that would allow the
government to scrutinize foreign funding of left-wing organizations.
The Israeli government retains British Mandate Defense Regulations
of 1945 that were originally enacted to quell Jewish resistance and maintain
order. Despite multiple attempts
to repeal them in the intervening sixty-five years, Regulation 88—executed in
the ongoing Anat Kamm Incident—allows the Israeli Army Censor to “prohibit the
importation or exportation, or the printing or publishing of any
publication…which, in his opinion, would be, or be likely to be or become,
prejudicial to the defence of Palestine or to the public safety or to public
order”.[37] Other regulations in this legal
heirloom, claims Sammy Smooha,
enable the authorities to
issue military injunctions on a regular basis, and not necessarily during the
conduct of war, to detain or restrict the movement of activists, to outlaw a
publication or organization, or to declare areas as closed and lands as
confiscated. These excessive
powers are kept for making it easier to deter, police, and punish those among
the Arab citizens of the state contemplating hostile acts. It is plausible to assume that these
Draconian emergency regulations would have been repealed had the Arab minority
not been perceived as a liability to national security.[38]
These outdated provisions
are antithetical to the spirit of the Israeli Declaration of Establishment and
constitute a chink in the armor of Israeli democracy. While the floodgates of tyranny may not have broken
open yet, these factors testify the fractures forming in Israel’s liberal
façade. Now, more than ever,
Israel needs reforms to halt the rise of government tolerated or approved
racism and protect personal liberties.
In
the past decade the Israeli constitutional process revved, stalled, and is now
propped up on cinderblocks, waiting for rust to set in. Several years ago, Knesset
Constitution, Law, and Justice Committee Chairman MK Michael Eitan spearheaded
a “Constitution by Broad Consensus Project” meant to jumpstart the process
through popular involvement. A
proposal was proffered to the Knesset in February 2006, but considering that
their website[39] has not
been updated in close to four years, it can be safely inferred that this
project has ground to a halt. For
the better part of two decades, Israeli government energies have been focused
on “national security” and the peace process. Constitutional reform has become an eldorado, spoken of like
an ever-distant messianic time that will arrive after peace comes to
Israel. The defense establishment (read:
government) in Israel opposes the drafting of supra-governmental law until
arrival at a final settlement with the Palestinians. Many academics, David Kretzmer and Chaim Gans for instance, consider
Israel’s political environment unripe for drastic constitutional change until
final agreements with the Palestinian Authority are made.[40] With the unresolved Palestinian issue
looming like a white elephant in Israel’s living room, with Hezbollah fuming
and arming on the doorstep, and Syria just next door, many argue that national
security takes precedence over domestic issues. Deal with the Palestinians first, politicians and
constituents alike say, then we will address “bringing Israel’s democracy up to
code” with the rest of the West.[41] This mentality impedes progress towards
constitutional reform, but it is not alone. The religious population, comfortable with the status quo,
is opposed to constitutional reform that might compromise religious governance
of public life and/or public funding for religious organizations. Religious parties—as well as the other
major factions-- are fearful of giving up the advantages of legislative
supremacy inherent to the present system.[42] Like Ben Gurion, none are interested in
constitutional reform that would divest them of legislative power.
Talking with Professor Bernard Avishai about the
prospects of an Israeli constitution in the coming years is a grim affair. With no impetus for changing the status
quo from any of the major parties, it is an unrealistic vision. The presiding Supreme Court Justices
who defend civil liberties are remnants of the European-educated, bygone
generation. They are a rearguard,
he remarked, a dying breed, and once they are gone there is no saying what
stance the Court will take on executing judicial review.
Short of a constitutional revolution that could result
in catastrophic upheaval, the sole realistic possibility rests in the “Bulgaria
option”. Bulgaria’s 1991
constitution provisions for the protection of minority rights. Like Israel, Bulgaria is a
self-declared one-nation state, approximately 20% of which is non-Bulgar
minorities. Bulgaria addresses
this conflict between exclusive national identity and minority populations
through constitutional and extra-constitutional means. Articles 44(2) and 162 ban
ethno-national or linguistic discrimination and protect the linguistic rights
of non-Bulgar speakers. Bulgaria
concedes legislation specific to minority rights to the international treaties
to which it is party as an EU member state. Though not wholly perfect in practice, Bulgarian minorities
nonetheless enjoy equal rights under law and proportionate representation in
the National Assembly—31 of 240 seats, or 13% overall. Israel could take a similar,
extra-constitutional approach of adopting legislation from without—by joining
the European Union and becoming a signatory to the Charter of Fundamental
Rights like Bulgaria. But from
this end of the Mediterranean the EU seems a long way off.
The bottom line is that “rights are constitutional, not natural”.[43] A democratic establishment without a
constitution is prone to mob rule,
and individuals are subject to the “tyranny of the majority” Mill cautioned
against. In the coming years,
pressure on liberal institutions unbolstered by constitutional law will
continue to increase, threatening to topple Israeli democracy and supplant it
with theocracy or Judeo-fascism.
Israelis—religious, secular, Jew and non-Jew—must sit down and make the
difficult decisions and painful concessions their forefathers failed to
make. Kohn’s exhortation not to be
deluded into believing “nothing like [the fall of German democracy] could
happen in Israel” should ring in the ears of every Israeli. It would be a shame to see the Middle
East’s sole functioning democracy—imperfect though it may be—go the way of the
Roman and Weimar Republics.
[1]
Qtd. in Miller, Judith. “Israel’s
Censorship Scandal.” The Daily Beast. 3 April 2010. Accessed online at
on 6 April 2010.
[2] The United
Nations. “General Assembly
Resolution 181.” Part 1, Section
B. Accessed online at
on 21 March 2010.
[3] “Declaration
of the Establishment of the State of Israel.” 14 May 1948.
Accessed online at
on 21 March 2010.
[4] Kohn, Yehuda
Pinhas. A Constitution for Israel.
Tel Aviv: Government Press, 1949.
p. 18.
[5] Ibid. p. 19.
[6] Rozin,
Orit. “Forming a Collective
Identity: The Debate over the Proposed Constitution, 1948-1950”. Journal
of Israeli History. 26:2, p.
253.
[7] Ibid. p. 256.
[8] Gavison,
Ruth. “A Constitution for Israel:
Lessons from the American Experience.”
Azure. Winter 2002. Section 4, para. 6.
[9] Ibid. Section 1, para. 4.
[10] Barak,
Aharon. “Human Rights in Israel.” Israel Law Review. 39.2, 2006. p. 18.
[11] Ibid. p. 20.
[12] Friedrich,
Carl. Constitutional Government and Democracy. Ginn and Co.: Boston, 1950. p. 129.
[13] Mill, John
Stuart. On Liberty. New York:
Appleton-Century-Crofts, 1947. p. 5, ll. 148-157.
[14] Aside from
the official languages of English, Hiri Motu, and Tok Pisin, Papua New Guinea
is home to approximately 860 indigenous languages, more than a tenth of the
world’s total, and thousands of individual communities with unique customs and
traditions.
(https://www.cia.gov/library/publications/the-world-factbook/geos/pp.html)
[15] Constitution of the Independent State of
Papua New Guinea. Preamble:
Article 5, section 3. Accessed online at
on 20 March 2010.
[16] U.S. State
Department. Advancing Freedom and Democracy Reports, May 2009: Papua New Guinea. Accessed online at
on 20 March 2010.
[17]
Constitution of the United States.
Article VI. Accessed online
at on
20 March 2010.
[18] “Basic Law
for the Federal Republic of Germany.”
Article 79(3). Accessed
online at on 20 March
2010.
[19] Friedrich,
Carl J. p. 170.
[20] Müller,
Jan-Werner. Constitutional Patriotism.
Princeton, N.J.: Princeton University Press, 2007. p. 1.
[21] Edelman,
Martin. “The Status of the Israeli Constitution at the Present Time.” Shofar. 21.4, 2003. p. 5
[22] Accessible
online at the U.S. Citizenship and Immigration Services website: .
[23] Edelman,
Martin. p. 12.
[24] Avishai,
Bernard. The Hebrew Republic.
Harcourt Inc.: Orlando, 2008.
p. 57.
[25] Gavison,
Ruth. Section 3, para. 1.
[26] Qtd. in
Jacobsohn, Gary. Apple of Gold. Princeton University Press: Princeton, NJ, 1994. p. 98.
[27] Navot,
Suzie. The Constitutional Law of Israel. Kluwer Law International: The Netherlands, 2007. p. 163.
[28] Shamgar,
Meir. “On the Need for a
Constitution.” Israel Affairs. 11:2, 2005. p. 348.
[29] Berlin, Isaiah. " ‘Who Is a Jew?’: —Professor Isaiah
Berlin's Memorandum to the Prime Minister of Israel, 23 January
1959." Israel Studies 13.3
(2008): 170-177. 13 Mar. 2010.
[30] Fox,
Jonathan and Sandler, Shmuel.
“Separation of Religion and State in the Twenty-First Century.” Comparative
Politics. 37:3, April
2005. p. 326.
[31] “The ‘Who
is a Jew?’ Controversy.” U.S.
Library of Congress. Retrieved
from 13 March 2010. Para. 2.
[32] As related
by Rajeev Bhargava at conference on “Constitutions and Democracy in Divided
Societies”, Tel Aviv University, 5 January 2010.
[33] Avishai,
Bernard. p. 40.
[34] Shamgar,
Meir. p. 354.
[35]
Khoury, Jack, and Weiler-Polak, Dana.
“‘Current Knesset is the most racist in Israeli history.’” Haaretz. 21 March 2010. Accessed online at on 1 April 2010.
[36] “Cultural
Boycott? It’s already happening in
Israel.” Promised Land. 27
January 2010. Accessed at
on 1 April 2010.
[37] “Defence
Emergency Regulations.” 88.1. 1945. Accessed online at
on 8 April 2010.
[38]
Sammy Smooha,
“Part of the Problem or Part of the Solution: National Security and the Arab
Minority,” in National Security and Democracy in Israel, ed. Avner Yniv
(Boulder, CO: Lynne Reinner, _993). p. 115.
[39]
www.cfisrael.org
[40] As per statements
at conference on “Constitutions and Democracy in Divided Societies”, , Tel Aviv
University, 6 January 2010.
[41] Avishai,
Bernard. p. 123.
[42] Barak-Erez,
Daphne. “From an Unwritten to a
Written Constitution: The Israeli Challenge in American Perspective.” Columbia
Human Rights Law Review. Volume
26. p. 355.
[43] Friedrich,
Carl J. p. 171
