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The Israel Democracy Institute has announced the publication of an English version of its "Constitution by Consensus." The title of the document takes some liberties with the word "consensus."
While the IDI appointed a variety of Orthodox and right-wing public personalities to its Public Council so as to lay claim to a consensus, these people actually rejected the initial draft, for a variety of reasons to be enumerated below. The final version does not address any of their grievances and, in fact, is considerably worse than earlier versions.
First and foremost, the IDI's document is designed to enshrine the power of the judiciary at the expense of the executive and legislature. Its excesses in this regard are so egregious as to lead to the suspicion that this is in fact the main purpose of the document.
The IDI proposes that the current method of judicial appointments - unique in the free world for the dominant role it assigns sitting judges - be included verbatim in the constitution. In fact, Dan Meridor, the main force behind the IDI's judicial appointments clause, has stated in public forums that he believes people with religious commitments must be prevented from serving as judges since their commitment to the law of the state is not total. No wonder he is deeply invested in an appointment process that is tightly controlled and sealed from public scrutiny.
Moreover, the IDI's document actually encourages judicial activism in a country already awash in it. Judicial activism is doubly dangerous when those legislating from the bench are immune to any appointments process that might ensure they reflect public sentiment. This is even more so when a divided society is badly in need of the kinds of compromises that only a legislature can provide; courts by their very nature must choose sides. Finally, judicial activism is downright destructive when, on divisive issues, the courts always choose the same side.
LET US CONSIDER how the IDI encourages judicial activism:
First, it includes among constitutionally protected rights the sort of vague rights that can be - indeed, have been - construed by the courts to mean just about anything the court wishes.
Thus, Paragraph 15a includes the right to "dignity" and 32a asserts that social and economic rights flow from such dignity.
Paragraph 16a enshrines "the right to freedom," which falls just short of the "right to rights" on the nonsense scale but is awfully useful for judges bent on inventing rights.
But if the rights themselves are vague, the limitations on such rights are even more vague. Paragraph 39 circumscribes the limitations that can be placed on rights via legislation to limitations that are "to an extent that does not exceed that which is necessary."
But as critics of the Canadian "Oakes Test," from which this is taken, have observed, the test is ambiguous in that it is not clear whether the intention is to ensure that the legislation not violate rights more than is necessary to achieve the purpose of the legislation; or if the intention is to achieve balance between the extent of the violation and the extent of the achievement.
The former interpretation is objective, but the latter practically invites the court to replace the judgment of the legislature with its own. In fact, the Supreme Court in Israel has deliberately exploited this ambiguity to intervene precisely when it suits them. If the IDI wished to clear up this ambiguity, a solution is at hand: It would be sufficient to amend the offending phrase to read "to an extent that does not exceed that which is necessary to achieve the purpose of the law."
Needless to say, the IDI resisted this solution.
THE GLORIFICATION of the judiciary is closely aligned with a very specific political agenda: the de-Judaization of the State of Israel. Among the foundations of Zionism are the following principles:
â€¢ The State shall cultivate relationships with Jewish communities in the Diaspora.
â€¢ The Israel Defense Forces shall, when possible, protect the well-being of all Jews.
â€¢ The Israeli educational system shall educate to an awareness of Jewish culture and values.
Incredibly, apart from the Law of Return, none of these principles appears in the IDI's document.
Indeed, according to the IDI, the purpose of the Israeli education system is to "develop the human spirit and ensure equality of opportunity," worthy goals, to be sure - but apparently to the exclusion of any awareness that Israel might actually exist for some Jewish national purpose.
IN FACT, so extreme is the IDI's allergy to anything that smells of Judaism that their constitution actually outlaws any legislation rooted in religion. The "wall of separation" that has (for the most part) served the United States well is both out of place and anachronistic in the Israeli context.
First, there is a single dominant religion in Israel that is tightly connected to the very purposes for which the state was founded. Second, in the 21st century many ideologies compete equally in the public marketplace of ideas. There is no logic in handicapping only religion among all other ideologies. Why should we be allowed to ban the sale of whale blubber as part of a green agenda or a socialist agenda, but not a Jewish agenda?
The IDI does throw religion a bone. Paragraph 164 specifies that the court "need not" interpret legislation regarding a small number of specified religion-state issues in accord with the constitution. Of course, the mealy-mouthed "need not" is a cruel joke, given that the method of judicial appointment ensures that the court will, in any event, always choose of its own volition to invoke constitutional safeguards against religion.
In fact, the single most significant issue on the list of protected religion-state issues is that concerning marriage and divorce. The concession to traditionalists is a half-baked immunity to court interference with any legislation on the matter, provided that the legislation provides for civil marriage, which - as is clearly implicit in an accompanying law - includes mandated same-sex marriages.
The IDI certainly has the right to propose a constitution designed to protect the interests of the narrow milieu in which its members circulate. But that hardly constitutes a "Constitution by Consensus."
The writer is chairman of the Israel Policy Center, a private research institute. He participated in the drafting of an alternative constitution which can be found at israeliconstitution.blogspot.com
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