Justice Minister Tzipi Livni this week appointed law professor Ruth Gavison to
draft a constitutional provision defining the precise meaning of Israel’s
“Jewish and democratic” attributes. Livni insisted that this is the “first-ever
comprehensive effort” to grapple with the thorny issue.
Be that as it
may, Israel’s Declaration of Independence has thereby become the proverbial rope
in a curious political tug-of-war that has largely evaded the attention of the
public. It all has to do with the “democratic and Jewish” catchphrase that has
gained broad but unfounded acceptance as the Declaration’s clear decree
regarding the state’s character.
The plain and incontrovertible fact of
the matter is that the word “democratic” does not appear in Israel’s Declaration
of Independence. It only cursorily lists assorted fundamental individual
freedoms “in the light of the vision of the prophets of
Considering the authors’ meticulous attention to every nuance
during a series of ultra-exhaustive consultations, this omission was no
Moreover, David Ben-Gurion, who worded the Declaration’s final
version, repeatedly argued that “this is no constitution,” and that the terse
reference to civil liberties was required by the General Assembly Partition
“We inserted the basic elements demanded of us by the UN,” he
explained to members of the People’s Council (the embryonic
Nonetheless, in recent years, the Supreme Court has treated
the Declaration’s imaginary conjoined adjective as an unassailable
quasi-constitutional directive. Moreover, more frequently than not, the justices
confer substantially greater weight to “democratic” than to
Critics of the court’s interventionist proclivities see this as
a dynamic that might turn Israel into an amorphous “state-for-all-its-citizens,”
at the direct expense of its “national-state-of-the-Jewish-people”
During the last Knesset’s term, this sufficiently alarmed MK
Avi Dichter, then of Livni’s Kadima faction, to submit legislation that would
secure the Jewish-state characterization and accord it preference in judicial
Dichter’s bill has lately been resubmitted, in a
significantly softened version, by MKs Yariv Levin (Likud) and Ayelet Shaked
It is against this bill that Livni has recruited Gavison
and launched her quest for a “constitutional provision.”
pitted herself directly against the Levin- Shaked proposal. She claimed that
Prime Minister Binyamin Netanyahu had given his blessing to her
Not only is this hotly denied in Netanyahu’s bureau, but he
is reported infuriated by the assertion.
Caught in an obvious untruth,
Livni was forced to back down. Her amended account is that Netanyahu knew about
Gavison’s appointment but didn’t support it. The bottom line is that he let
Livni busy herself with whatever alternative formulations Gavison constructs for
her but that these by no means oblige the government, the prime minister or any
As is, this is at most a PR stunt that might generate
something only acceptable to Livni and Gavison.
Although Livni bears the
chief onus in this instance, it is a shame that Gavison – an Israel Prize winner
and a candidate for Supreme Court justice – allowed herself to be exploited. She
should at the very least have demanded that a team be assigned to work alongside
Livni is of course free to wage her political battles as she will,
but it is regrettable that she dragged so eminently gifted and esteemed a jurist
as Prof. Gavison into this.
Deciding on the underlying definition of the
state – whether one prefers Jewish or democratic – is not a oneperson
undertaking by any criterion.
Even the great Ben-Gurion did not attempt
it alone and did not assume sole responsibility for what he insisted (with
considerable foresight) was not a constitution-indisguise.
constitutional authority be remotely claimed for the “constitutional provision”
that Livni purports to produce.
This is too heavy a load for any one
person to lift and bear, regardless of Gavison’s undisputed professional
Assessments regarding the rights of the Jewish collective in
this land should never have been imposed on Gavison alone. In so doing, Livni
did not honor her but far more likely did her an injustice.
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