Give Israel a Constitution

This article by Dr. Arye Carmon reflects on the progress of the drafting of Israel's constitution.

The State of Israel is on the verge of a historic undertaking: the enactment of a full constitution. During the 16th Knesset, for the first time since the founding of the state, the Constitution, Law and Justice Committee, headed by MK Mickey Eitan, made significant progress toward drafting an Israeli constitution.

Just prior to the elections for the 17th Knesset the Constitution Committee completed the introductory stage of this process. Now that the 17th Knesset has begun its term, the Constitution Committee, to be headed by the newly appointed MK Prof. Menahem Ben-Sasson, will be entering the historically decisive phase: that of choosing between various alternatives for the sections intended to delineate Israel's governmental and political system, to determine the identity of the state and, above all, to establish the nature and content of Israel's Bill of Rights.

The Constitution Committee under Ben-Sasson has its work cut out for it. In each of the areas mentioned above the committee will be dealing with highly controversial issues.

In recent years we have witnessed the emergence of a meaningful constitutional discourse that has given expression to a broad range of opinions. A few important facts should be noted in this regard—facts whose assimilation into the Israeli collective consciousness is an essential condition for the constitution's enactment.

Firstly, history shows that constitutions have always, in all parts of the world, been approved or established at critical historical junctures, such as political revolutions, in the aftermath of wars, or upon the fall of an old order and the rise of a new one. Israel's constitution, if passed, will be, apparently, the only one ever enacted at a less-than-critical historical moment. We are the only ones ever to have sought to formulate so important a document against the background of a pre-existing, pre-formed political system. It is therefore imperative that the constitutional document be accorded legitimacy by as broad a population base as possible.

Theoretically, and perhaps even practically, a majority in favor of the constitution could be assembled by representatives of a portion of the Israeli public—for example, representatives of the secular-liberal parties, etc. But an endeavor of this nature would not ensure ratification of the constitutional text by various existing minorities; it would actually undermine the entire process and render it meaningless.

The Israel Democracy Institute has submitted to the Knesset leadership a complete constitution draft based on principles of compromise and consensus. We, fellows at the institute, in drafting our proposed constitutional document under the leadership of former Supreme Court president Meir Shamgar, have devoted tremendous amounts of time, energy, and emotional and intellectual effort to formulating a model that demands compromise on the part of each of Israeli society's major component groups, while also securing for each of these groups significant benefits.

Criticism has been voiced in the pages of this newspaper of the institute's proposed constitution. This criticism has been heard by us, and it is being attended to elsewhere by parties across the political and ideological spectrum. Some have lodged criticism of our proposal from the liberal standpoint, while others have criticized it from the opposite perspective. It should be emphasized that no one from the Israel Democracy Institute who took part in formulating the draft constitution is happy with the final product. Each of us, had it been left up to him, would have drafted a completely different text.

However, the text to which we are all signatories does represent a spirit of concrete compromise without which, in our opinion, no constitution will ever be enacted. Had each of us not displayed the willingness to make concessions, even painful ones, we would not have reached the final stage of a constitution by consensus.

We have submitted our proposal, and perhaps a better one could be formulated. But without compromise and its attendant discontents no further progress can be made.

The effort to reach a consensus based on painful concessions is an important act not just because of its necessity in order to conclude the constitutional process. It also has far-reaching educational consequences: The effort to reach a consensus can and must be perceived as a transformative act for Israel's fractured and conflicted political culture. That is, the 'consensus' part of the term 'constitution by consensus' is of nearly equal weight to that of the 'constitution' part.

The Israel Democracy Institute's proposal is the first of its kind. It is the outcome of broad and comprehensive discussions held by the public council that the IDI established six years ago, a council composed of figures representing the various groups that make up Israeli society, including ultra-Orthodox and Arabs, women and social activists, new immigrants and veteran Israelis and, in particular, experts from all of the country's universities. The final text was approved by a decisive majority of the members of the public council.

The Institute's constitutional text takes four main sectors of Israeli society into account and represents concessions on the part of each of them. These sectors are not, themselves, homogeneous or monolithic. Each one contains within it various streams and sub-groups. The sectors were defined as follows: religious, secular-liberal, nationalist, and Arab.

In general, the compromise demanded of the religious sector is, first and foremost, that of accepting a document which, by its very nature, is secular. Such acceptance necessarily involves laying to rest the dream—whether publicly expressed or not—of a constitution based on Torah sources.

Not only that, but it precludes any possibility of religiously-based legislation. The main compromise demanded of the secular sector is that of divesting the Supreme Court of judicial control over four core issues: marriage and divorce, religious conversion, Shabbat, and kashrut in public places.

This means that tensions and conflicts in these areas would continue to be addressed as they always have been, via the political discourse of the legislature. However, as part of a package deal, the institute fellows propose two regular laws aimed at clarifying the issues of Shabbat, marriage and divorce, and defusing the tensions surrounding them. The Shabbat-related law proposed is based on the principle that everything connected with culture, enjoyment and recreation, including public transportation, should be permitted. Anything business or commerce related should be forbidden.

The second law, that which addresses personal status, offers a secular alternative to marriage by the rabbinate: an option called Brit Hazugiot which provides those who do not choose the religious track with a symmetrical and complete framework in which to formalize their relationships via a civil commission and the civil courts.

The constitution's opening paragraph proposes establishing the State of Israel's Jewish and democratic identity based on manifestly Jewish symbols and concepts. Nevertheless, the document recognizes the citizenship status of the country's non-Jewish minorities, and seeks to accord them full equal rights, including civil, political and social rights and, in particular, rights pertaining to ethnic and religious minorities.

Alongside the concessions that it demands of Israelis from across the political spectrum, the constitution offers outstanding benefits, the first and foremost of them being a rich, comprehensive and modern bill of rights.

The 17th Knesset's Constitution Committee, headed by MK Ben-Sasson, faces a particularly high hurdle. Strenuous efforts will be demanded of the committee, as well as a great deal of goodwill and an awareness that the adoption of a constitution by consensus is not merely our only choice, but also a choice that embodies signal achievements, a choice capable of creating a new reality of stability and certainty for Israeli democracy.

Dr. Arye Carmon is the Former President and Founder of the Israel Democracy Institute.

This article was first published in The Jerusalem Post on June 9, 2006 and has been reprinted with permission. Copyright © The Jerusalem Post

The opinions expressed herein are the author's own personal opinions and do not necessarily reflect those of the Israel Democracy Institute.