Introduction / Prof. Avraham Diskin

This year’s festive Tu Bi’Shvat session of the Knesset, held on February 13, 2006 by Israel s sixteenth Knesset, focused on the subject of an Israeli constitution. The results of two years of work by the Knesset Constitution, Law and Justice Committee, headed by Knesset Member Michael Eitan, in preparation for the passage of aconstitution in Israel, were presented to the Knesset. Both the festive Knesset session and the Knesset committee appear to have been working from the assumption that the seventeenth Knesset, elected on March 28, 2006, would complete the passage of the Israeli constitution, an endeavor embarked upon even before theestablishment of the state.

Israel has a fairly well developed system of constitutional arrangements which are, however, incomplete and uneven in nature. Paradoxically, it has been the legislative developments and rulings on constitutional issues of recent years thathave increased the ambiguity and heightened disagreement regarding basicconstitutional issues. This situation underscores the need to pass a constitution as soon as possible.

 

Checks and Balances

Some emphasize the importance of passing a constitution that will be acceptable to all parts of the Israeli public. Unfortunately, there is considerable doubt as to whether it is at all possible to formulate a constitution that everyone can agree upon. Israeli society is divided in many respects and the State of Israel is a state whose very right to exist is even today still called into question by many, from both within and without. Under such circumstances, along with the desire to attaina broad consensus, there is a need to make unequivocal decisions regarding the basic principles upon which the state and its government are founded. The tension between the need to attain a broad consensus, on the one hand, and to make clearcut decisions on the other, is characteristic of the process that every country involvedin determining constitutional frameworks undergoes. In Israel, however, this tension – between the need to find a fine balance between conflicting demands and the need to make clear-cut decisions – appears to be one of the main factors contributing to the delay in the constitutional process.

Among the subjects that formal constitutions deal with, four central issues need to be clearly decided upon:

  1. The basic characteristics and principles of the state;
  1. The status of the individual and the citizen, and the setting of clear guidelines to determine the relations between the individual and the state’s officialinstitutions;
  1. The nature of the government and of the governmental authorities acting on behalf of the state – including the setting of clear guidelines to determine the nature of the relationship among the official authorities themselves and that which exists between them and the citizens of the state;
  1. The setting of guidelines for the pyramid of norms that are binding on the state and, in particular, determining the status of the constitution, as compared to primary legislation, and the effect of the system of norms when the actions and decisions of the legislature and executive are reviewed by the judiciary.

Making decisions on these subjects is not easy and each requires either a fine alance or a clear-cut decision – which are often mutually exclusive.

 

Nationstate and Democracy

Constitutions in enlightened countries aspire by nature to be democratic. But the question of the procedural and practical definition of democracy is no simple matter. History has shown us all too often that democracy must frequently contend with irreconcilable contradictions between its various demands. Moreover, most enlightened countries developed as nation-states. Some might claim that there is an inherent contradiction between the character of a state as a nation-state and its character as a democratic one. Nevertheless, in practical terms, it would appear that most countries have managed to attain a balance whose results are fairly dichotomous, making it reasonably easy to determine if a given regime is democratic, practically speaking, or not. In the Israeli context, decisions have to be made regarding the essence of the state as the national home of the Jewish people, the rights of its minorities and questions of religion and state, which some maintain have been the principal factors responsible for the delay in passing the constitution.

No basic human or civil right is absolute. From this it follows that there exists no absolute freedom or equality. This is all the more so where the contradiction between freedom and equality is concerned, to say nothing of the additional contradictions between other freedoms and rights. A democratic constitution seeks to present not only a “complete” list of rights, but also keys to understanding the contexts inwhich freedoms may be limited and the nature of the decision that must be made when it becomes evident that there is a contradiction between conflicting basic rights.

In view of the collapse of advanced democratic regimes in the twentieth century, we must not forget that every democracy has the right and obligation to defend itself. It must defend itself not only against those who would use violent means to fight it, but also against those who seek to exploit the rules of democracy itself in order to undermine it. This is all the more so in the case of Israel, which findsitself having to combat consistent attempts to oppose its very essence as a Jewish state and even its very existence. A sizeable minority of Israel’s citizens belong to a people a large part of which, regrettably, views itself as Israel’s sworn enemy.

That democracies need to defend themselves against those who would destroy them has been underscored in a number of laws in democratic states and is recognized as a prominent principle of natural law. In the words of Chief Justice Barak, “A constitution is not a recipe for suicide and civil rights are not a vehicle for national destruction.” It is incumbent, therefore, upon the constitution to give expression to the requirement of a democracy to defend itself.

 

Constitution, Law and the Judiciary

The decision regarding the basic characteristics of the form of government is far from philosophical. There is no dearth of examples showing how constitutional arrangements on the questions under discussion can produce the seeds of rifts and division to the point of causing the democratic entity to collapse. In the Israeli context, it would be wise to draw conclusions from changes that have been madein various directions in recent years. In addition, especially salient in the Israeli case is the importance of maintaining the stability of the government and its ability to govern, on the one hand, and of safeguarding the representativeness of thegovernment and its branches, on the other.

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