[Resurrected by the protest movement, the idea of a constitution
has been pursued throughout Israels history. But opposition to
equality foils its fruition.]
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WHY ISRAELI EFFORTS TO WRITE A CONSTITUTION ALWAYS FAIL  
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Dahlia Scheindlin
April 4, 2023
+972 Magazine
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_ Resurrected by the protest movement, the idea of a constitution has
been pursued throughout Israel's history. But opposition to equality
foils its fruition. _

Israeli Prime Minister David Ben-Gurion reading Israel's Declaration
of Independence in Tel Aviv, May 14, 1948. , Zoltan Kluger/GPO

 

“We won’t stop until there is a constitution!”  This slogan,
loudly chanted in recent weeks at Israel’s protests against the
government’s judicial coup, was not initially heard when the
demonstrations first began three months ago. Indeed, talk of a
constitution has been almost totally absent from the Israeli public
discourse for years. Suddenly, however, the idea has been resurrected.

Shortly after Prime Minister Benjamin Netanyahu announced a
“pause” in the legislation for judicial reforms, Yair Lapid, the
leader of the Knesset opposition, said
[[link removed]] that any negotiations with
the governing coalition to find a compromise would have to include
discussions over the drafting of a constitution, reiterating his
demand at a protest outside the Knesset that same day. 

Three weeks ago, Shikma Bressler, one of the leaders of the protest
movement, similarly called
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a constitution from the stage at Kaplan Street — the site of the
weekly protests in Tel Aviv against the reform — and more than
100,000 people echoed her call of “Constitution! Constitution!”
Numerous prominent figures, including former Attorney General Michael
Ben Yair
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have published policy papers and articles that promote a demand for a
constitution. One of the stipulations of President Isaac Herzog’s
proposed compromise [[link removed]], which the
government rejected, is to include a “Basic Law: Equality.”

Israelis have begun using the hashtag “#Constitution_Now” on
social media; one concerned citizen summed up the popular sentiment
when he wrote
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“Without a constitution, Israel will be erased.” Prof. Yaniv
Roznai, one of the leaders of a forum of legal scholars opposing the
judicial assault, wrote [[link removed]] that
the current crisis is “an opportunity for a constitutional
moment.” The Movement for Quality Government in Israel, one of the
country’s largest public interest groups, has launched a new project
under the name “A Constitution for the Homeland.” 

Even the Kohelet Policy Forum — a right-wing think tank that has
been regarded as one of the driving forces behind the government’s
judicial plans — snuck in its own proposal
[[link removed]] for a compromise to
resolve to the crisis (which is partly of its own making), saying,
“Our hope is that the reform will enable the adoption of an
agreed-upon constitution for the State of Israel, which would also
include a bill of rights.”

Taken together, these developments mark an important shift for the
protest movement. The judicial crisis has brought hundreds of
thousands of people into the streets and forced them to peer into the
abyss; now, perhaps, they are starting to realize that only a
constitution can stop them from falling into it. Israelis are finally
seeing that a constitution is fundamental to democracy, and a state
without one will be perpetually on the brink of demise.

Israelis protest against the government’s planned judicial overhaul,
in Haifa, March 27, 2023. Shir Torem/Flash90

I, too, believe in the need for a constitution. And yet, we must keep
in mind that the renewed demand is hardly the first of its kind.
Throughout Israel’s history, even before independence, there have
been multiple powerful attempts at drafting a constitution, and every
single one has failed. There are many reasons for these failures, but
one stands above all the rest — the opposition to enshrining the
principle of equality as a foundational law of the Israeli state.

CITIZEN OR SUBJECT?

The absence of equality lies at the heart of every constitutional
problem in Israel. To this day, there is no formal right to equality
for every individual citizen, nor is there collective equality. A
consequence of this is that Haredim (ultra-orthodox Jews), for
example, have the privilege of being exempt from society’s burdens
such as military service, while Palestinian citizens are excluded from
Israel’s social contract and much of its political and economic
life. The absence also affects the separation of powers, as the
elected branch, the Knesset, is always far stronger than the others
(the myth that the Supreme Court reigns unchecked has no basis in
reality).

Israel’s refusal to enshrine equality into law is intimately
connected with its failure to draft a constitution, especially in the
state’s early days. Between 1948 and 1949, for example, Prime
Minister David Ben-Gurion argued
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a constitution should not be adopted right then, lest the generations
of diasporic Jews soon to immigrate to Israel be excluded from shaping
the country.

In so doing, Ben-Gurion granted superior status to these theoretical
citizens, some of whom may not yet have been born, at the expense of
citizens already living in Israel. The prime minister also opposed a
constitution on the grounds that it would tie the hands of legislators
and the government. In his view, there had to be equality between all
laws
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the state, with no law having supremacy over another (as, by
definition, a constitution does).

In truth, Ben-Gurion was not interested in equality, but rather sought
to maintain the superior power of the elected branch, which he
controlled at the time. In this respect, he was allied with an
unexpected group: the Haredim. From their first incarnations, the
ultra-Orthodox political parties — which then, as now, constituted a
minority in the Knesset — opposed 
[[link removed]]a constitution out of a desire to
maintain their disproportionate power in Israel’s coalition system,
and to dictate onto the population their preferred versions of family
law, kashrut, Shabbat observance, and other matters that formed what
came to be known as the “status quo.” This, too, was a violation
of the value of equality.

Nonetheless, a detailed draft constitution
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was intended to serve as the basis for political discussion was
submitted to the Provisional State Council, the proto-legislative body
that played a key role in the state’s formation. The document was
created in preparation for Israel’s Declaration of Independence; the
UN Partition Plan of 1947, which proposed dividing Palestine into a
Jewish and an Arab state, mandated that both societies adopt a fully
democratic constitution as a prerequisite for statehood.

Israeli Prime Minister David Ben-Gurion reading a state
correspondence, Sep. 20, 1949. (David Eldan/GPO)

The draft constitution was written by Dr. Yehudah (Leo) Pinchas Cohen,
and it contained every right an Israeli citizen would want. But at the
time of the first Knesset, Israel had yet to define who was even a
citizen and what constituted citizenship, finally doing so
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in 1952 — four years after its war of independence.

Without formal citizenship, and without a constitution detailing
citizens’ rights, it was far easier for the state to govern the
Palestinians who remained within its borders under a brutal martial
regime [[link removed]], depriving them of
their civil and human rights. And so, with the exception of the right
to vote — which was vital to maintaining Israel’s international
image as a democracy — Palestinian Arabs in Israel did not enjoy
democratic rights in any meaningful sense, having been relegated to
the status of “subject” until Israel ended its military rule in
1966.

ONLY PARTIAL VICTORY

After the 1950 Harari Decision
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in which the Knesset gave up on drafting a full constitution in favor
of a piecemeal approach of quasi-constitutional “Basic Laws” —
some politicians tried to legislate equality into law.

In his excellent book “The Birth of the Revolution
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former Likud MK Uriel Lynn explained how, in the 1960s, Prof. Yitzhak
Hans Klinghoffer, then an MK from the now-defunct Liberal Party,
proposed a full bill of rights — but the government, then controlled
by Ben Gurion’s Mapai party, blocked it early on in the legislative
process. In the 1970s, the retired judge Benyamin Halevi, then an MK
from Gahal (a forerunner of the Likud), tried to put forward a scaled
back bill of rights, but again was met with opposition from the
religious parties.

After some progress in attempts to enshrine fundamental rights in the
late 1980s, by the start of the 1990s, the political conditions were
ripe for the passage of two of Israel’s best-known Basic Laws
— Human Dignity and Liberty
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and Freedom of Occupation
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Legislating them was not easy. Facing staunch opposition, the
legislators were forced to divide a broad, human rights-focused Basic
Law into four pieces; two of them were never passed. Lynn, then the
chair of the Knesset’s Constitution, Law, and Justice Committee,
worked on these laws with Prof. Amnon Rubinstein, then an MK from the
centrist party Shinui, following the efforts of the Justice Minister
of the time, Dan Meridor.

Rubinstein later detailed
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rejection of religious parties to the principle of equality in a 2012
article, characterizing their approach as “over our dead body.”
Rubinstein explained that their opposition was rooted in multiple
concerns: that the Law of Return, enabling any Jew in the world to
immigrate and be naturalized in Israel, would be canceled; that Haredi
exemption from military service would be revoked; and, above all, that
equality would be granted to non-Orthodox denominations of
Judaism. As an aside, it seems likely that granting fair recognition
and equality to other Jewish denominations in Israel would have
dispelled, or even prevented, some of the resentment many secular Jews
feel toward religion — which stems in part from the imposition of
Orthodox tradition on all Jewish life in Israel.

The MKs who advanced these laws realized that they were poised to
achieve a partial victory, but only by giving up on the principle of
equality. This painful compromise, among many others, enabled just two
of the four quasi-constitutional anchors to be adopted. The result was
that Israeli human rights law was incomplete, lacking its most crucial
tenet: equality among all its citizens.

A BODY WITHOUT A HEART

This brief history, of course, does not capture the full picture.
Despite the glaring absence of equality in the Basic Laws, Israel has
still promoted the value of equality in an alternative way: point by
point, and clause by clause. The Knesset adopted, for example, a law
mandating gender equality
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the early days of the state (1951); a law demanding equal pay
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men and women in 1964 (and which was replaced in 1996); and
an anti-discrimination law
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2000 — one of the very laws the current government wants to target.

President of the Supreme Court Esther Hayut and other Supreme Court
Justices arrive for a court hearing in Jerusalem, January 5, 2023.
(Yonatan Sindel/Flash90)

The issue of equality even made its way into Human Dignity and Liberty
by way of a 1994 amendment
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that the law includes the “spirit of the principles of the
Declaration of Independence.” Various rulings by the Supreme Court
— like the Ka’adan case of 2000, which ruled that, at least on an
individual basis, that the policy of leasing land exclusively to Jews
was a form of prohibited discrimination — reinforced the value of
equality.

This forward movement, however, was halted in the last decade under
Netanyahu’s rule and his populist-right coalitions. The peak of his
efforts came with the enactment of the Jewish Nation-State Basic Law
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one of the most discriminatory laws in the state’s history.
Ironically, the passage of this law kicked off a discussion about the
importance of equality: a poll [[link removed]] by
the Peace Index, an arm of the Israel Democracy Institute, found that
64 percent of Israelis thought the Nation-State Law should have
addressed a commitment to full equality among all citizens.

Now, with the sudden reemergence of debate over a constitution, and
with protesters chanting for equality, that principle must no longer
be up for grabs or used as a bargaining chip in political
negotiations. Any serious treatment of constitutional questions now
must establish, once and for all, that a constitution without equality
is like a body without a heart, or a heart pierced by a bullet.
Putting metaphors aside: a constitution that is not supreme over other
laws is hardly a constitution, and a democracy without equality as a
fundamental value is no democracy at all.

_This article first appeared in Hebrew on Local Call. Read it __here_
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_DAHLIA SCHEINDLIN is a leading international public opinion analyst
and strategic consultant specializing in progressive causes, political
and social campaigns in over a dozen countries, including
new/transitional democracies and peace/conflict research in Israel,
with expertise in Eastern Europe and the Balkans. She works for a wide
range of local and international organizations dealing with
Israeli-Palestinian conflict issues, human rights, peacemaking,
democracy, religious identity, and internal social issues. Dahlia
holds a PhD in political science from TAU, and she is the co-host of
The Tel Aviv Review podcast._

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