POLITICS: Israel Debates Having A Written Constitution

By IPS Correspondents Reprint | | Print |

Ben Lynfield

JERUSALEM, Aug 30 2000 (IPS) - Israel, which prides itself on being the only democracy in the Middle East, is having trouble deciding whether or not it wants a written constitution.

The issue, simmering throughout the Jewish state’s 52-year history, came to the fore last week, when Prime Minister Ehud Barak suddenly announced plans for social reforms, with legislation of a constitution as the centerpiece.

Israel identifies itself as both a democratic and a Jewish state. Religious and secular Israelis differ, however, over whether its Jewishness is to be expressed through shared culture and heritage, or by adherence to religious law and norms.

“I, as a religious Jew, already live with a constitution. It is called the bible. Our fear is that a constitution is liable to nullify every law that is aimed at establishing the state of Israel as a Jewish state,” says Avraham Ravitz, a member of Knesset from the Torah Judaism party.

A constitution would have to address whether or not liberal democracy prevails in a fashion more decisive than the individual pieces of key legislation, known as Basic Laws, that have gradually gained Knesset endorsement since the state’s birth.

The Basic Laws cover topics ranging from how the Knesset should function to the preservation of Liberty and Human Dignity. But they have, for the most part, dodged the thorniest issues of Arab- Jewish relations and religious-secular relations.

For secular Israelis, the power of orthodox groupings is felt in many aspects of daily life. Israel’s orthodox chief rabbinate enjoys a monopoly over conducting marriage and divorce. this means that several thousand couples who want a civil marriage travel abroad each year, most of them to nearby Cyprus.

Israeli civil libertarians look to a written constitution with a bill of rights as the means to enable and ensure individual freedoms, to stem what they see as religious coercion, and to promote equality between Arab and Jewish citizens.

“It won’t ensure that discrimination will immediately stop, but it will be a very powerful tool against discrimination,” said Dan Yakir, a lawyer for the Association for Civil Rights in Israel.

The concerns of religious groupings about a constitution revolve around the Chief Justice of the Supreme Court, Aharon Barak, who has sought to infuse the bench with a liberal democratic approach.

The fear is that with a constitution in hand, Barak would, in the name of democracy, undermine the Jewish basis of Israel’s identity, according to Charles Liebman, a political science professor at Bar-Ilan University, near Tel Aviv.

For example, taken to its conclusion, Aharon Barak’s approach could call into question the now sacrosanct Law of Return, which enables any Jew to immigrate to Israel and immediately become a citizen, says Liebman.

The law cuts to the heart of Israel’s self-view as a country that is in gathering Jewish exiles and restoring Jewish sovereignty after a 2,000 year dispersion.

With a constitution, Aharon Barak might be empowered to strike down the Law of Return as violating the rights of people who are not Jewish, adds Liebman.

Ehud Barak, in taking up the issue, appears to be motivated more by political calculations than idealism.

With a breakthrough in negotiations with the Palestinians not materializing, he wants to try out a new issue on the Knesset and the public, much of which resents the enormous power wielded by religious parties and would like to see them reined in by any means, including perhaps a constitution.

Acting Foreign Minister, Shlomo Ben-Ami, came close to conceding this Wednesday, telling reporters: “In Israel, you need to always have an additional agenda to the peace process if you want to maintain broad parliamentary support.”

Whatever his intention, Barak has added fuel to the debate over whether a constitution would help, or hinder, Israel in resolving its identity crisis.

One of Israel’s leading specialists on constitutionalism, Yehezkel Dror, is wary of Barak’s initiative.

Dror, a Hebrew University political scientist, who has advised several developing countries on drafting their constitutions, says: “Functionally, Israel already has a constitution in the form of its Basic Laws, court decisions and customs in the same way that the UK has a functional constitution.

“But some people are demanding a document that would be defined as a constitution and have a special status. To speak in principle about having a constitution without going into what it says is a slogan. The UK is certainly a working democracy and there is no [written] constitution.”

In Dror’s view, it would be best to leave room for the religious-secular issue to evolve in coming years rather than impose a solution in the form of a text.

But Israeli civil rights activists take issue with Dror’s approach, countering that a text is necessary to ensure the evolution is democratic.

“The role of a constitution is to have an enshrined document, which any majority cannot simply change because it does not feel like having the [stated] rights protected,” says Yakir.