Social justice! Welfare! Health! Housing! These are the slogans we hear nowadays
from every street corner. But one outcry is missing: Constitution! And this is
despite the fact that the absence of a written constitution is at the root of
the current crisis.
Indeed, it would be true to say that Israel has a
constitution, at least in the substantive sense. The basic laws of the state are
its constitution. But that is a partial one, a limited and crippled one. The
current situation is unsatisfactory. The protesters are asking to “change the
rules of the game,” and this public protest has to be used to promote elections
for a constituent assembly that would draft a constitution.
A
constitution presupposes the existence of an original constituent power. It is
established by the will of this power and is valid because it derives from a
constitution-making capacity.
In the modern era, the constitution of a
nation is regarded as a creation ex-nihilo, receiving its normative and
universal status from the political will of the people to act as a
constitutional authority, and through which “the people” manifest themselves as
a political and legal unity.
The original constituent power is never
exhausted; it remains present, alongside and above every
constitution.
However, it only manifests through constitutional events
such as declarations of independence, revolutions, constitutional plebiscites,
popular initiatives or special constitutional conventions. In order for the
original constituent power to be direct, these forms must have a special
character – i.e., separate from other public functions – thereby replacing
revolution with peaceful means, incorporating actual, deliberate, free choice by
society’s members.
The important feature is the collective nature of the
original constituent power – the word constituere marks the act of founding
together, jointly. The present public outcry can be such a constitutional event:
hundreds of thousands of people going out to the streets mark the beginning of
the awakening of the public collective, the resurrection of the original
constituent power. There is a reason the leaders of the public outcry announced
that “there is a feeling of reestablishing the state.”
The process of
utilizing this awakening is not as complicated as it seems at first glance. The
materials are out there. As of 2003, the Knesset Constitution, Law and Justice
Committee has been working on drafting a national constitution. It has held
dozens of meetings, received thousands of pages of background papers, all with
the participation of academics, organizations and members of the public. Based
on the committee’s debates, its staff prepared a detailed draft of a
constitution that includes different alternatives and versions for various
issues and is accompanied by explanations and proposals for discussion. This is
a comfortable base on which to begin.
It has to be clear: A constitution
and economic growth are inseparable. Constitutional stability can provide the
essential predictability for markets to flourish. Moreover, research shows that
constitutional stability is negatively associated with crisis propensity and
positively associated with political stability, democracy and GDP per
capita.
A new constitution could also explicitly incorporate the social
and economic rights neglected so far – the right to health, housing, education,
etc. Such a move may help block the expansion of the existing economic
inequality and spread an additional protective net for the citizens.
One
has to look beyond the immediate demands of the outcry. Any solution that the
government would propose would be no more than a cosmetic change – a slight
renovation, a rearranging of the furniture. But we need a basic structural
change. Therefore, the current momentum has to be utilized to promote the
election of a constituent assembly separate from the Knesset. That assembly
would have a single mandate: to prepare a constitution. Its work ought to be
limited in time, and at the end, the constitution should be brought to the
people in a referendum.
The current outcry is an opportunity that will
not reappear any time soon. This is the time for a constitution.
The
author is a PhD candidate at the London School of Economics and Political
Science (LSE).