Since she was appointed by Justice Minister Tzipi Livni last Monday to prepare a
draft constitutional provision defining the exact dimensions of what it means
for Israel to be a “Jewish and democratic state,” Prof. Ruth Gavison has been
subject to vicious attacks both on her positions and her integrity, from both
Right and Left, but especially the latter.
Even the Prime Minister’s
Office expressed displeasure regarding the appointment, but so far has not
What is it about Gavison that elicits such extreme reactions?
It is that she has chosen a middle way – a road of compromise – on some of the
most burning and fateful issues for Israel’s existence.
At the outset I
should like to point out that though I consider myself part of the Israeli Left,
I agree with Gavison’s basic approach, and am a great admirer of her consistent
and systematic academic and public work, conducted in the face of an unending
smear campaign against her.
What is all the fury about? Gavison refuses
to join the choir that claims Zionism is a reactionary movement, like all
national movements, yet does not take it for granted that Zionism will remain
enlightened and just without effort on our part.
She believes that Israel
can be both Jewish and democratic, even though there will always be those who
feel it could be more Jewish, or alternatively more democratic. At the same time
she insists that there is need for constant vigilance to ensure the delicate
balance between the two is maintained.
She believes one of the
preconditions for Israel’s being truly Jewish and democratic is the two-state
solution, based on the basic principle of the partition of Mandatory Palestine
approved by the UN in 1947, since only if there is a Jewish majority in the
Jewish state, and the Palestinian right to independence is realized, can Israel
be both Jewish and democratic vis-à-vis its Arab citizens.
that the only way to deal with the religious-secular rift is by means of
compromise, in which neither side will get everything it dreams of – i.e. Israel
cannot be a halachic state, and also cannot be a totally secular state in which
religion has no formal role at the state level.
She opposes the
preparation of a constitution based solely on one school of thought (i.e. the
secular-liberal one), but gladly cooperated with the efforts of the chairman of
the Knesset Constitution, Law and Justice Committee in the 16th Knesset, MK
Michael Eitan, to draft a “Constitution by Agreement,” and served as an adviser
to the committee’s work.
However, her greatest sin (at least in the eyes
of her left-wing opponents) is her objection to the extreme activism of the
Supreme Court, and her claim that the principles along the democratic-Jewish,
religious-secular, and Arab-Jewish axes should not be laid down by the Supreme
Court, but by the legislature – the Knesset, since it is only the latter which
truly represents the whole spectrum of opinions and beliefs in Israel.
is this position that cost her a place on the Supreme Court back in 2005, when
Justice Minister Livni supported her candidacy but court president Aharon Barak
placed his full weight against the appointment, claiming that Gavison “had an
Why did Livni decide to appoint the controversial Gavison of all
the available legal experts, and why now? Firstly, the record shows Livni is a
great admirer of Gavison. However, the main reason is the public furor created
around various proposals for a new Basic Law designed to define the nature of
Israel’s Jewishness and democracy submitted by MKs in the previous and the
current Knessets. Livni decided that rather than merely oppose the various
initiatives, most of which advocate breaking the balance between the Jewish and
democratic natures of the state in favor of the former, or are simply odd (for
example, the bill submitted by Ruth Calderon from Yesh Atid, which proposed
turning the 1948 Proclamation of Independence into a basic law), the time has
come to define the basic principles of Israel’s Jewishness and democracy, and to
lay down the basic rules for implementing these principles.
that Israel is to be both Jewish and democratic was indeed laid down in the
Proclamation of Independence. In the late 1980s it was enacted that no one can
run for election to the Knesset if in word or deed he denies the democratic and
Jewish nature of the State of Israel.
Another law stated that the
immunity of MKs does not apply to statements or acts that involve the denial of
Israel’s democracy and Jewishness.
Article 1 of Basic Law: Human Dignity
and Liberty, enacted in 1992, stated that “The purpose of this Basic Law is to
protect human dignity and liberty, in order to establish in a Basic Law the
values of the State of Israel as a Jewish and democratic
Nevertheless, the exact content of Israel’s Jewishness and
democracy, were never clearly explained or defined.
believes in compromise rather than dictates, and since she has many years of
experience in drafting principles in the relevant spheres – inter alia she has
written books on Israel as a Jewish and democratic state, on the principles
behind the 1947 partition plan, and in 2001 published a 300-page document which
she drafted together with Rabbi Yaacov Medan and which contains elaborately
explained proposals for a secular-religious covenant to replace the rather
archaic religious “status quo” in Israel – she appeared to Livni to be a perfect
Gavison is not expected to reinvent the wheel, and will
undoubtedly dig up all the old drafts, diligently prepared over the years by
numerous academics, jurists and ideologists (and some of which she herself
participated in drafting), and will come up with a well thought-out, reasoned
and feasible proposal.
Unfortunately, the chances that what she comes up
with will actually be enacted are slim. The mood in Israel today is not one of
compromise, but of sharpened positions – of absolute rights and wrongs, and
power struggles based on them. The strong feelings that her name and positions
elicit are also unlikely to serve a smooth and logical
Nevertheless the effort is worth making, and I personally should
like to wish Prof.
Ruth Gavison the best of luck.
The writer is a
retired Knesset employee.