22 April 2007 - Constitutions

A frequent complaint among human rights activists is that Israel does not have a constitution, only a set of Basic Laws establishing the fundamental rules and institutions of the state. A country does not need to have a constitution to uphold human rights—there have been many that have violated human rights despite having a constitution—but having one might make those rights more enforceable.

At a deeper level the debate about an Israeli constitution forces Israel to decide certain questions about the identity of the state that it has preferred to leave unanswered. These include: whether Israel is to be a Jewish state, or a state of all its citizens; whether and to what extent religion will be separated from the state; what rights and protections will be guaranteed to the Arab minority, and so on.

In addition, there are a number of other political questions that a constitution would have to answer, such as: the extent of judicial power to review legislation, the role of the military in society, and so on. Past attempts to write a constitution have failed, and recent attempts have also stalled. However, several proposals have established the basic outlines of a what an Israeli constitution would look like.

The Knesset Constitution, Law, and Justice Committee presented a draft constitution—really a collage of proposals—in February 2006. The draft includes detailed (and contradictory) suggestions about the structure of government, as well as an extensive set of rights, including socioeconomic rights. Nothing much has happened since the draft was presented; it seems to have been overtaken by events.

A number of civil society groups have undertaken constitution-writing projects of their own, such as the Israel Democracy Institute (whose proposals, unfortunately, are still only available in Hebrew, and while I am pretty fluent it takes me a while to get through the technical terms). One group that has published a constitution in English is Adalah, the legal center for Arab rights in Israel.

The constitution proposed by Adalah is actually quite rudimentary, more a sort of outline of what a constitution might look like. The most developed section is the preamble, which does not begin with Israel’s identity as a state but with the Universal Declaration of Human Rights and a list of Palestinian grievances against Israel. More thought seems to have been put into this than the rest of the document.

The rights in the Adalah constitution also seem more like a list of demands. There is an extensive Bill of Rights that is largely adopted from the South African Constitution, including its largely unenforceable socioeconomic rights. There is also a section on the restitution of property that would allow claimants to take back land that was confiscated before Israel existed, under laws of the British Mandate.

Some sections are really so simple that they seem rather trite. The section on the judiciary, for example, merely states that the judiciary “has the power to adjudicate, including the power to annul laws which are in contradiction of the Constitution.” This does not address the controversy over the separation of powers which is a hot topic in Israel, with the Knesset trying to tame the Supreme Court’s jurisdiction.

A section on decision-making aims to give the Arab minority power a kind of veto power over Knesset legislation, provided that seventy-five percent of the members of parties defined as Arab parties oppose it. On issues of language, culture and identity, Arab parties will have half the seats on a committee that reviews all such legislation. This would be a kind of “political affirmative action” for Arab parties.

The really surprising thing is that after all these proposals, the Adalah constitution stipulates in a “Miscellaneous” section that the constitution may be amended by a two-thirds majority, which means the Arab parties would lose their veto anyway. Adalah suggests that revising the veto power of Arab parties should require an eighty percent majority, but even this would seem to leave those parties vulnerable.

Another odd proposal is that Israel should be a bilingual state—i.e. Arabic and Hebrew. This sounds at first like a welcome nod to multiculturalism, except that Israel already has three official languages: Arabic, Hebrew and English. Suggesting that Israel become a bilingual state is effectively the same as suggesting that it get rid of English—that it become less multicultural, in fact, than it currently is.

Overall, the Adalah constitution seems somewhat sterile. It presents Arab grievances with a certain pathos, but lacks the sense of aspiration that is present in most real constitutions. Perhaps that is because it is an opening proposal and not the product of intense negotiations. But Adalah seems somewhat agnostic about Israeli nationhood to begin with; perhaps that is why the text is so passionless.

Emerging Israeli constitutional law is really quite fascinating, and something I would really like to learn more about. I once visited the Israeli Supreme Court building in Jerusalem, which as an extensive international law library because the court has to draw on many international precedents, lacking a constitution of its own to refer to. Perhaps I’ll be able to study this topic more in the months ahead.