Basic laws aren't enough [pg. 13]

But who should draft Israel's constitution and how should it be ratified?

In the winter of 1948/49, with the just born Jewish state not yet sure that it had won its war of independence against local Arab guerrilla armies and those of the surrounding Arab states, Israeli leaders were nevertheless confident enough to proceed with its first parliamentary elections. In fact, the elections were not for the first Knesset, but for a Constituent Assembly which would write and adopt a constitution for the new state whose total population was about one million - one-fifth of them Palestinian Arabs. Sometime in the first days of the convening of this assembly it was decided (in a highly non-democratic fashion) that that body would not prepare a constitution at all, but would instead transmogrify itself into the country's first parliament which would in turn choose the executive government. In the ensuing 56 years Israel has never managed to adopt a constitution, making do instead with a series of "Basic Laws" which some hoped would eventually form the basis of a formal constitution. The president of the Supreme Court, Aharon Barak, has been claiming for the past decade and more that the adoption in 1992 of two Basic Laws: "Human Dignity and Freedom" and "Freedom of Employment" constituted exactly that sort of "revolution" needed to turn the Basic Laws into a written constitution. There is good reason to suspect that his far-reaching interpretation will not long outlive Justice Barak's retirement from the court (due to his reaching the mandatory retirement age of 70) next September. First of all, those two, supposedly revolutionary, basic laws were adopted by mere pluralities rather than by solid majorities of the Knesset. Secondly, the ensuing 13 years have shown that instead of serving to mobilize an impressive popular majority around a constitution-based consensus, which formal constitutions are supposed to do, the country's social and political divisions have grown to threatening proportions. In recent years, especially after the fiasco surrounding the adoption and then the undoing of the amendment for the direct popular election of prime ministers, there has been renewed interest in the proper adoption of a constitution. The Knesset Law Committee under MK Michael Eitan, has just completed such a proposal to be submitted for a first reading. The Israel Democracy Institute has also prepared a draft for a constitution. BOTH BODIES are pushing for speedy consideration of their proposals. Despite being a long-time supporter of Israel's having such a written constitution, I am nevertheless opposed to speeding up the process for its adoption. We have learned to our regret that intentionally speeding up the all-important deliberative aspect of legislation results in bad laws, or in the debatable involvement of the High Court in taking upon itself the interpretation of these badly drafted laws. What we do need in the first stage of a constitutional process are decisions in principle as to the body which should draft the constitution and the process for its final adoption and ratification. In regard to the first of these issues, I would much prefer a constitutional commission as opposed to the Knesset itself. We have witnessed, in recent years, a spiraling decline in the quality of the individuals who make up that body. A Knesset of poor-quality politicians who made it into the legislative branch via badly tainted political parties would only come up with questionable compromises and a bad constitution. Until the quality of the Knesset changes for the better (count on the Messiah to arrive before then), I believe that continuing with no constitution is preferable to adopting a bad one. Luckily, Israel is full of excellent candidates for a constitutional commission, who are not now working politicians. I can envisage such a commission made up of former prime and justice ministers, former leading MKs from a broad range of parties, rectors of our law schools and leading professors of law and political science, and journalists who have distinguished themselves in legal commentary. The guiding principle should be: no currently working politicians but the best and brightest from the civic world, academia and law. As for ratification, a final draft emerging from the such a commission should be submitted to a popular referendum. We have one of the most politically savvy populations in the world. If decisions on aspects of the European Union can be submitted to popular referendums in France, Holland and other constituent EU states, we can certainly submit such momentous questions about the makeup of our belated constitution to the ratification of our own electorate. There are countries - Bolivia comes to mind - which have had scores of constitutions (not merely amendments, which can be counted in the many hundreds); that makes their constitutions and democracy meaningless. If our constitution is to have the impact we would wish for it on the conduct of our public affairs, it should start off with the advantage of approval (or partial rejection) by an impressive majority of our electorate.