By Asher A. Fredman
Asher A. Fredman ’08, a Government concentrator from Leverett House, graduates from Harvard College this year. This essay is based on his senior thesis.
As it enters its sixtieth year, the modern State of Israel continues to be one of the few democracies in the world without a written, formal constitution. The Declaration of the Establishment of the State of Israel (Declaration of Independence) explicitly stipulates that the Elected Constituent Assembly should adopt a constitution “not later than the October 1st, 1948.” Yet continued debates and disagreements over core issues relating to the identity and structure of the state have stalled the process. Since the controversial and contested 1992 ‘Constitutional Revolution’—which allowed the Supreme Court of Israel to review and strike down laws made in the Knesset (Israel’s parliament)—various political and civil society actors have come to see the development of a constitution as an attractive way to enshrine—or reverse—the results of the ‘revolution’. Amid fears of demographic changes—such as the growth of Arab and ultra-Orthodox Haredi populations—and over the spread of post-Zionist worldviews, many now believe that the adoption of a constitution has become particularly urgent.
In this essay I will outline some of the main issues in the debate and provide an overview of legislative activity in Israel. My observations are based on experience gained during two summers of working in the Israeli parliament, and on research conducted for my senior thesis, for which I interviewed many of the major players in the constitutional discussions. The core issues regarding the character and structure of the State of Israel which may be affected by a future constitution can be divided broadly into three categories (though the lines between them are often blurry.) They are the self-definition and character of the State, religion-state relations, and the structure of the government and political system. [1]
I argue that as long as the Supreme Court continues to play an aggressively activist role in all aspects of public and political life in Israel, it is unlikely that the members of the Knesset will have the motivation or willingness to make the compromises needed to resolve these debates and produce a constitution. The relationship and balance of power between the judiciary and the legislature has become a central point of contention, even eclipsing, perhaps, the ‘traditional’ core issues. It will therefore be necessary to structure the relationship in such a way as to ensure that complex and sensitive compromises reached by the various parties will not be overruled for conflicting with the ideological orientations of members of the court.
Definition and Character of the State
The vast majority of Israel’s Jewish population supports the idea that Israel should be both a Jewish and a democratic State. But Israelis have many different opinions about what the State’s Jewish character should entail. Should the State simply be a safe-haven for Jews persecuted or discriminated against in other lands? Should it be the nation-state of the Jewish people, as expressed in its primary language, Hebrew, and in its symbols such as flag and national anthem? Should the State actively promote the preservation, expression and advancement of Jewish culture? Or encourage Jewish settlement of the land. The position of the Arab minority is also the subject of debate. [2]
Similarly, there are questions about how the State should fulfill the practice and principles of democracy. Does democracy require simply that every citizen be given the right to vote, to hold office, and that public officials be held accountable through regularly scheduled elections? Or does it require the state to guarantee a broader spectrum of rights, and take positive action to ensure the economic and social equality of its citizens? Does it require that the State grant political or cultural autonomy to some or all minority groups?
There are many ways in which these questions may find expression in the constitution. The first is in the official definition of the state. One approach is to employ the formulation which defines the State as ‘”Jewish and democratic.” [3] Another is to divide the two elements, so that the first clause states that “Israel is the State of the Jewish People'” (or “The State in which the Jewish nation realizes its right to self definition'” or “A Jewish State and the National Home of the Jewish People”), while the next clause states that Israel is a democratic state which respects the human rights of all its residents. [4] The constitution proposed by Adalah, the ‘Legal Center for Arab Minority Rights in Israel’, defines Israel as “a democratic state, based on the values of human dignity, liberty and equality”, and elsewhere describes Israel as a “democratic, bilingual and multicultural State.” Other groups have proposed the using the phrase, “a state of all its citizens”. [5]
Some of the other provisions whose inclusion or non-inclusion would affect the definition and character of the state include [6]:
• A special connection between Israel and Diaspora Jewry; an imperative on the State to act for the safety and well being of Jews around the world; an imperative on the State to encourage Jewish immigration to Israel.
• The constitutional recognition of Israel’s Arab population as a ‘national minority’ or an ‘indigenous people’; the granting of collective rights and/or limited autonomy to the Arab or other minorities; the official status of Arabic.
• Neutral state symbols (such as flag, anthem and emblem) in addition to or in place of the current Jewish ones.
• An imperative on the State to inculcate knowledge of the Jewish heritage in the Jewish educational system.
• The right of the State to set aside certain pieces of land for exclusive purchase or settlement by members of a specific ethnic or religious group.
Religion and state
The debates on the relationship between religion and state revolve around whether aspects of traditional religious law (halacha in Judaism, sharia in Islam) should have a role in the legal system of the state. The debate affects issues as basic and personal as marriage, divorce, conversion, burial, and which activities are permitted on the national Day of Rest (the Sabbath.) The historical roots of the religion-state arrangements in Israel, which differ significantly from those in the United States, are in the Ottoman millet system, which was preserved by the British in the Mandatory era. This system designated people as belonging to one of a list of officially recognized religious communities, each governed by certain religious leaders.
In 1947, the Jewish Agency and David Ben-Gurion negotiated with representatives of the ultra-Orthodox Agudat Israel movement and arrived at an understanding which became known as the ‘status-quo agreement.’ The agreement gave the Chief Rabbinate control over issues of personal status, which include marriage, divorce, conversions, the Jewish status of immigrants to Israel, and kashrut (kosher) certification. It provided that the Sabbath would be observed in the public sphere by the closure of businesses, government offices, and public transportation.
Competition between the two large party blocs meant that support from religious parties was necessary for nearly every government coalition. The religious parties in turn insisted that the preservation of the religion-state status quo be included in coalitional agreements. At the same time, strong challenges to the status quo emerged and violations became ubiquitous. Secular Israelis objected to the enforcement of religious law in matters such as marriage and divorce, and to the closure of places of entertainment, restaurants and public transportation on the Sabbath, their day off. Issues surrounding marriage and conversion became especially urgent with the massive waves of immigration from the former Soviet Union in the 1990s. Hundreds of thousands of these immigrants were eligible to immigrate under the Law of Return, but were not Jewish according to halacha, and therefore, lacked any official religion and could not legally marry within the State. [7] The Reform and Conservative movements within Judaism, despite still having relatively little presence or political influence in Israel, began to challenge the Orthodox monopoly over religious affairs. A number of their petitions to the Supreme Court on issues such as conversion were successful.
Several religious parties have opposed the creation of a constitution in the past, fearing that it would upset the religion-state status quo. Other prominent religious politicians have expressed staunch support for a constitution, because they believe the Supreme Court poses a greater threat to the place of religious life. Some of the proposals for a constitution explicitly single out the Jewish tradition as a source of inspiration for legal decisions and laws, while others discourage the incorporation of any aspects of religion into the legal system.
The constitutional issues related to the relationship between religion and state include:
• The authority of the rabbinical courts, and the leeway, which the Supreme Court may exercise in interfering with their decisions.
• The nature of Sabbath observance in the public sphere. Should restaurants, places of entertainment and retail shops be allowed to operate? Should businesses and factories? Should public transportation be allowed to operate in full or modified form in areas with significant secular populations?
• Personal Status. Should there be a right to civil marriage and divorce, or should these issues continue to fall under the jurisdiction of the Chief Rabbinate? [8] One interesting compromise proposal would create an institution known as a ‘pact of couplehood’ (brit hazugiyut), which would have the same legal status as marriage. When entering into the pact, the couple would have to declare that they did not intend to enter into a halachically-valid marriage, thereby avoiding, according to a number of religious authorities, many of the halachic problems which the introduction of civil marriage and divorce might create.
• The degree to which the Supreme Court may review arrangements and laws touching on religion and state. The constitutional proposal of the Israel Democracy Institute explicitly shields laws relating to four key areas—marriage and divorce, conversion, Sabbath, and religious dietary regulations (kashrut) in government buildings- from judicial review. It also states that when a judge comes to interpret a law relating to one of these areas, he or she is not required to do so in light of other principles found in the constitution. [9]
• Who is a Jew? This question goes to the heart both of the character of the State and religion-state relations. Currently there are different criteria employed for eligibility to immigrate to Israel under the Law of Return, and to be recognized as a Jew by the Interior Ministry for purposes of personal status. Connected to this area are standards for and control over conversion. On this issue, as well as many of the other issues discussed above, the constitution’s drafters may decide that it is better to avoid any mention of it in the constitutional text, and leave its resolution to the realm of ordinary politics.
Structure of the Government
The rules and procedures governing the different branches of government and the system of checks and balances between them are a central part of any constitution. An issue of great importance throughout Israel’s history has been the electoral process and the types of political alliances it fosters. Article 4 of Basic Law states that elections to the Knesset shall be general, national, direct, equal, secret and proportional. Israel currently has an electoral system which is proportional rather than majoritarian, and national rather than district-based. This means that people vote for a party rather than a particular representative of a district, and that each party receives a number of parliamentary seats (out of 120) in proportion to the percentage of votes they receive throughout the country. The result has been the proliferation of many small parties.
Many experts argue that the political system would function better if elections were held according to districts and candidates were accountable to specific constituencies. Assuming that each district elected only one representative (a majoritarian or winner-take-all system), the result would most likely be a reduction in the number of political parties represented in the Knesset.
The minimum percentage of nationwide votes needed for a party to receive seats in the parliament is unsurprisingly controversial, in the context of Israel’s party system. Since 2004 the minimum threshold for receiving seats has been incrementally raised from 1.5% to 2.5%. This threshold is one of the lowest in the world, and many analysts argue that in order to reduce the number of small parties—which in their view cause political instability and polarization—the threshold should be raised much higher. Some have advocated for even more radical changes in the Israeli political system, such as moving from a parliamentary to a presidential or semi-presidential system.
There are those who see the creation of a constitution as providing the best hope for bringing about significant changes in this area. It is unlikely that changes with far-reaching consequences will be passed within the framework of ordinary, day-to-day politics. A constitution which lays down for the first time the structure of the entire political system in a sweeping, holistic manner, could create these changes in a balanced and deliberate way, to ensure that the various reforms are compatible and complementary to each other.
Legislative-Judicial relations
At least until 1992, Israel had generally been viewed as operating under the doctrine of parliamentary sovereignty, similar to Great Britain. Power rested primarily in the legislature, whose acts were not subject to review by the judiciary. The judiciary tended to take a more restricted view of its role, only occasionally foraying into contentious political or ideological debates. It claimed the right to exercise powers of judicial review only in very limited circumstances. However from 1983 to 1995, during Meir Shamgar’s term as President of the Supreme Court, judicial practice began to change. Firstly, the court virtually eliminated the requirement that a petitioner demonstrate ‘standing’, i.e. a personal stake in the case. Whereas a person in the United States, a person must have a personal “case or controversy” in order to bring a matter before the court, the Israel Supreme Court allows NGOs, advocacy groups and even private citizens to challenge legislation and government policies, even if the petitioners themselves are not actually affected by it. Secondly, the court gradually broadened the range of issues it considers justiciable—or within its mandate. It became particularly eager to hear cases that may concern human rights. In the U.S., the Supreme Court has generally refrained from becoming involved in questions it believes to be inherently political, and therefore properly the jurisdiction of the other branches of government, such as matters of military and diplomatic policy and decisions relating to the national budget. Aharon Barak, Justice and later President of the Supreme Court from 1995-2006, on the other hand, has declared that “anything and everything is justiciable.” [10]
In 1992 the Knesset passed the first two basic laws dealing specifically with human rights. These were Basic Law: Freedom of Occupation (chofesh ha’isuk), and Basic Law: Human Dignity and Freedom (kevod ha’adam ve’chairuto.) The Freedom of Occupation law, which was passed 23-0, protected the right to engage in any occupation or employment not prohibited by law. The Human Dignity and Freedom law, which was adopted by a vote of 32-21, guaranteed the right to life, physical integrity, dignity, property, privacy, freedom of movement and freedom from unlawful search. Aharon Barak, then Justice and later President of the Supreme Court declared that these developments constituted a ‘Constitutional Revolution’, as a result of which “every branch of law had to change its fundamental concepts and its fundamental outlook.” [11] A new balance of power had been created, according to Barak, in which the judiciary had acquired much broader powers to oversee acts of the executive and legislature in order to ensure their compatibility with the ‘constitution’.
Barak’s and others’ designation of the events of 1992 as a constitutional revolution, and their use of that idea as a justification for a greatly expanded role for the Court, has proven very controversial. In my opinion, Barak’s description of the revolution as a conscious decision by the Knesset acting in its role as Constituent Assembly to transform the essential nature of the political system is unconvincing. [12] According to Members of Knesset from Labor, Likud, and the ultra-Orthodox Degel HaTorah whom I interviewed, there had been no special atmosphere or sense in the Knesset at the time of the passage of the laws that an act of particular significance was taking place. Revolutions are not generally carried out by one-fourth of the legislature, as in the case of the Human Freedom and Dignity law, or by one-sixth, as in the case of the Freedom of Occupation law. Of the four main speakers who spoke in favor of Human Dignity and Freedom in the Knesset plenum, two (representing two different segments of the religious population) were explicitly opposed to the idea that the law granted the Court the power to interfere in delicate issues. Uriel Lynn, then chairman of the Constitution, Law and Justice committee, also seemed explicitly opposed to the idea that the law would transfer power to the judiciary, though he may have employed a degree of creative ambiguity. Only then-Justice Minister Dan Meridor clearly took a different stance, indicating that the law would lead to greater power for the judiciary vis a vis the other branches of government. The general public including the media did not seem to attach particular importance to the passage of the laws. [13] Several other technical factors relating to the content of the laws also serve to make Barak’s claims problematic.
A better explanation for the promotion of the idea of a Constitutional Revolution was the desire of Barak and other justices to ensure that the actions and policies of the State would be tested against the Court’s conception of what was proper and legitimate in an ‘enlightened democracy’. They were supported in this by old societal elites, largely liberal, secular and Ashkenazic, who saw transfer of policy-making power to the Court as a way of preserving their policy preferences against the vagaries of democratic politics and assertive minorities. This claim is of course is controversial and subject to wide debate within Israeli politics and academia. [14]
The Israeli Supreme Court under Barak, who served as its president from 1995-2006, evolved into one of the most activist in the world, becoming involved in many of the most divisive political, economic and social issues facing the State. The Court ruled (or claimed the authority to rule) on economic questions such as the permissibility of welfare cuts and allocation of the national budget, on military questions including the conduct of the army while actually engaged in combat, and the route of the security fence, on policy questions such as the legality of the disengagement plan, and on sensitive ideological and religious issues such as the ban on the importation of pork, the recognition of homosexual marriages performed abroad, and the right of the state to prevent the naturalization of the Palestinian spouses of Israeli citizens.
Debates between those who support and those who oppose the Court’s activism and apparent ideological leanings are manifested in different proposals for aspects of the constitution. Those who wish to restrain the Court and who argue that it is the democratically-elected parliament which is most qualified to decide on these sensitive issues of ideology and policy seek to include within the constitution provisions that would grant the legislature greater power vis a vis the Court. Those who believe that the protection of those human rights that should be guaranteed in an enlightened democracy requires the careful guardianship of professional justices seek to ensconce within the constitution the current powers and jurisdiction of the Court.
Some of the central issues involved in the debate over the power of the judiciary and over judiciary-legislature relations include:
• The method for selecting judges. Israel’s method for selecting judges is different to that in other countries. They are selected by a special committee made up of current justices including the Court President, members of the Israeli bar, Members of Knesset and government ministers. The dominant voice in the committee is that of the Court President. This has allowed the Supreme Court to decide who may and may not join its ranks and has led, according to the Court’s critics, to the ideological homogeneity of the court bench. Supporters of the current system claim that it ensures a professional judiciary, untainted by the factionalism that would ensue were politicians given a stronger voice in the selection process. Some of those who advocate reform of the selection committee, including current Justice Minister Daniel Friedmann, argue for the alteration of the committee’s makeup in order to give more of a voice to the executive and legislative branches. Others would like to see the power to nominate and confirm justices actually transferred to the legislature or executive.
• The ‘Override’ or ‘Nonwithstanding’ Clause. These types of clauses essentially enable the legislature to ‘disagree’ with the Court’s interpretation of the constitution under specific circumstances. An override clause would allow a special or absolute majority in the Knesset (80, 70, 66, and 61 members have all been suggested as the minimum number) to decide that a law does not in fact conflict impermissibly with a right guaranteed in the constitution, despite a Court decision to the contrary. Basic Law: Freedom of Occupation contains an override clause, which was used to overrule the Court’s determination that the ban on importing pork violated rights guaranteed by that basic law. The Canadian constitution allows legislatures to attach preemptive nonwithstanding clauses to laws, which determine that the law is valid notwithstanding a future court decision to the contrary. There are those who advocate this kind of clause in the Israeli system as well.
• The Roles of the Supreme Court. Should the highest court of appeals also serve as the constitutional court, as is the case in the United States, or should there be a separate court for constitutional questions, as in Germany and France? At least on the European continent, separate constitutional courts have tended to be subject to greater influence by the legislative and executive branches.
• Standing and Justiciability. Should the constitution require that a petitioner to the Supreme Court have standing in that case? Can the areas over which the Court is or is not allowed to exercise jurisdiction be delineated in some viable way?
Conclusion
At the opening session of the constitutional discussions of the 17th Knesset, there was a debate within the Law, Constitution and Justice Committee over which course of progress would most likely produce tangible results. One member suggested proceeding directly to issues of religion and state since these had historically been the most contentious, while another suggested beginning with the sections dealing with the powers of the judiciary. Committee Chairman Menachem Ben-Sasson however, insisted that the opening sections dealing with the basic definition and character of the state be addressed first.
I believe that the second approach would be the most effective. Successful constitutional discussions will require willingness on the part of the representatives to compromise and make painful concessions in return for other benefits. Representatives will be unwilling to work out multifaceted compromises on contentious issues if they fear that, no matter what is agreed to, the Court may step in and alter the arrangements. Those who find their views supported by the Court will have less incentive to engage in negotiations and compromise, since the prospects for success via judicial victories are greater. At the same time, those who are opposed to the content and nature of the court-developed constitutional norms will deny their legitimacy, leading to greater political instability and polarization.
There is a growing realization among the Members of Knesset that more important than the actual phrasing of constitutional clauses is the identity of their authoritative interpreter. The most important question is ‘who decides?’ Constitutional proposals which seek to establish substantive compromises on contentious issues, but which fail to make structural changes in the current balance of power between the various branches of government, will not reassure those who are wary of the Court’s willingness to reinterpret statutes and expand its oversight. Furthermore, while the focus had traditionally been on matters of religion and state, current debate over the role of the Court concerns the Court’s involvement in a wide range of economic, political, military, and civil issues. In order for the Knesset to be able to create a constitution successfully, mechanisms must be in place to ensure that key issues relating to Israel’s identity and character will be determined primarily by the representatives of the citizenry and not by self-selecting and unaccountable judges.
NOTES
1. An Israeli constitution would not necessarily need to touch on all of these issues. Yet most modern constitutions contain the three elements of 1) ‘rules of the game’ (structure of the political system), 2) credos or basic principles and values of the society, and 3) a bill of rights.
2. On the one hand, a number of Israeli Arab politicians, intellectuals and NGOs have called into question the legitimacy or desirability of Israel defining itself as a Jewish state. On the other, a poll conducted by the Israel Democracy Institute in 2007 concluded that 75% of Israel’s Arab population would support a constitution defining Israel as a Jewish and democratic state as long as equal rights for minorities were guaranteed. See Yoav Stern, “Poll: 75% of Israeli Arabs support Jewish, democratic constitution”, Haaretz.com, 4/29/2007, (http://www.haaretz.com/hasen/spages/853564.html) Last accessed 4/2/08.
3. This approach was taken in the 1992 Basic Law: Human Dignity and Freedom and is found in the constitution proposed by the Israel Democracy Institute, and in alternative A of the draft presented to the 16th Knesset by the Constitution, Law and Justice Committee.
4. This approach is taken in alternative B of the 16th Knesset’s draft constitution, and in the constitution proposed by the Institute for Zionist Strategies.
5. Though this term is problematic in the Israeli context, as it is unlikely that its proponents actually intend the type of system generally described by that term, which exists in states such as France. In such a system, as nationality is seen as congruent with citizenship, no national minorities may be recognized or supported. There would be little room for separate state-supported Arabic educational or cultural institutions, such as those that currently exist, under such a system.
6. In this and the following sections I do not attempt to list all of the relevant or important issues, only some of the prominent ones.
7. Many Israelis went abroad to get married, particularly to Cyprus. These marriages were then given legal recognition in Israel.
8. The issue of civil marriage would also likely affect the possibility of officially recognized gay and lesbian marriages.
9. At the same time, the IDI’s constitution largely preserves and institutionalizes the expansive scope of the powers which the Supreme Court has assumed for itself. The debate over the Court’s powers and jurisdiction will be discussed in the next section.
10. Quoted in Ran Hirschl, Towards Juristocracy, p. 169 (Harvard University Press; Cambridge, Mass, 2004.)
11. Aharon Barak, “Human Rights in Israel,” Israel Law Review 39, no. 2 (2006), p. 18.
12. See Barak’s opinion in United Mizrahi Bank v. Migdal Cooperative Village (CA 6821/93, 1908/94, 3363/94), particularly paragraph 57.
13. For example, the Jerusalem Post relegated a story on the passage of Human Dignity and Freedom to page 12 of the next day’s issue.
14. For a detailed argument in this direction, as well as a contextualization of the Israeli case within the worldwide trend of increasingly powerful judiciaries, see Hirschl, Towards Juristocracy.
New Society 