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ADALAH'S NEWSLETTER
Volume 34, March 2007
Interview with Adalah Attorney Marwan Dalal on the Publication of
“The Democratic Constitution” by Adalah
Kol al-Arab: Why is Adalah proposing a constitution, even if it is entitled “Democratic”? Are you aware that there is no chance of Israel adopting it in the current circumstances?
Marwan Dalal: The current situation in Israel is undoubtedly among the worst in which to discuss the idea of adopting any constitution, democratic or undemocratic. In addition, the historical experiences of various countries tell us that these constitutions are agreed upon at founding historical moments, such as the victory of a revolution, the declaration of a country’s independence or a fundamental regime change. Adalah’s interest in drafting a democratic constitution began following the serious attempts made by elite groups within Israeli Jewish society to persuade the Israeli authorities to adopt a constitution not based on rights or democratic values, but rather on the common denominator among the Jewish community in Israel. Most prominent among these efforts is the “Constitution by Consensus” campaign (Hoka Bihaskama). This project differs from its predecessors in its insistence and determination that Israel should adopt a constitution, even though the current composition of the Knesset would clearly block the production of any constitutional document which respects basic democratic norms. Thus, in response, we wanted to propose a constitution based on two assumptions which are lacking in all the current attempts by Jewish society to prepare a constitution for Israel. Firstly, the Arab community in Israel is a subject, which possesses a history, rights, interests and feelings and is not an object to be excluded or given charity. Secondly, the democratic nature of the constitution which we have prepared is non-negotiable, which necessarily poses a challenge not only to the aforementioned constitutional proposals, but also to the prevailing constitutional framework in Israel.
Kol al-Arab: How did Adalah go about drafting “The Democratic Constitution”?
Marwan Dalal: “The Democratic Constitution” was prepared over the course of two years, during which numerous valuable discussions were held among members of Adalah’s staff, Board of Directors and General Assembly. We also drew upon the accumulated political and intellectual experiences of Palestinian Arab society and other societies.
Kol al-Arab: What, practically speaking, distinguishes this constitution from other the constitutions put forward by Israeli Jewish elite groups?
Marwan Dalal: Numerous features set this constitution apart in addition to those I have already mentioned. First of all, it does not begin with the assumption that one group owns the state, its institutions and its natural resources. That is, it does not propose, of course, that Israel should be the state of the Jewish people or a “Jewish and democratic state”. In the constitutional democracy which we envision in our proposed constitution, the state is defined as democratic, bilingual and multicultural. Secondly, citizenship in the state is equal citizenship. Hence the current situation, in which any Jewish person is given preference with regard to citizenship under the Law of Return, while at the same time the family unification of Palestinians from either side of the Green Line is prohibited, contradicts our proposed constitution. Thirdly, we propose a parliamentary mechanism which would enable Arab Members of Knesset to block any proposed law which violates the rights of Arab citizens. Fourthly, we propose to guarantee the right of the restitution of land, property, and the Islamic Waqf confiscated by Israel during the many years which have passed since 1948. Fifthly, we propose to guarantee socio-economic rights, which are usually disregarded in constitutions and deemed to be of lesser importance than political rights. In our view, such an understanding of these rights is obsolete and represents an incomplete awareness of rights. A leading authority that directs us in this regard is an important decision delivered by the Constitutional Court of South Africa in 2000, in which it confirmed that political rights are devoid of meaning unless socio-economic rights are guaranteed.
Kol al-Arab: Did Adalah benefit similarly from the experiences of other countries?
Marwan Dalal: Yes. We tried to draw on the experiences of many peoples and countries, aware that every historical experience is unique. We studied the South African Constitution, which is considered one of the ideal democratic models, at least at the level of text. We also examined the constitutional arrangements in Canada, Belgium, The Republic of Ireland and Macedonia, for example, among others. In the case of Canada, we looked into the constitutional status of the English and French languages and into the definition of Canadian society as a free and democratic society. As for Belgium and Ireland, we examined the constitutionalization of the relationship between the various groups in each country. We also investigated the veto mechanism held in Macedonia by the parliamentary representatives of the minority against laws which infringe their rights. Similarly, we relied on international conventions dealing with human rights, minority rights and the rights of indigenous peoples.
Kol al-Arab: But have the tensions in these countries not continued, even after the adoption of democratic constitutions?
Marwan Dalal: Without a doubt. A constitution does not solve all the political problems of a country. However, its primary task is to organize the relationships between individuals and groups on the one hand, and the state on the other. We believe that using justice and integrity as the basis for adopting a constitution helps to reduce the tensions present in any country. But in the absence of a democratic culture, no constitutional text will stand up to the first test, however democratic it may be.
Kol al-Arab: You speak in the constitution of multiculturalism. But wouldn’t this open the way for the fragmentation of the Arab community?
Marwan Dalal: The multiculturalism which we speak of in the constitution ensures the building of elected institutions by the national minority. Further, the central authorities are obliged to provide budgets to these institutions, not as a good deed on their part, but as part of their duty towards a community with cultural specificity, and which pays taxes to the state. Institution-building can assist in protecting the social fabric of any society, and Arab society in Israel in particular. The constitution we are proposing guarantees the possibility of building elected institutions for a national minority, without the state expressing hostility towards them and thus violating basic rights of these citizens. Nevertheless, even this possibility cannot guarantee against the fragmentation of a society if social forces dictate as such. The solution is, of course, to oppose such social forces.
Kol al-Arab: What about the violation of the rights of individuals within the Arab community?
Marwan Dalal: The rights of the individual are also protected through the exercise by the elected institutions of their authority in accordance with the proposed constitution, as those institutions are thereby subject to the basic values of the constitution, which include the dignity, freedom and equality of the human being.
Kol al-Arab: Numerous documents dealing with the position of the Arab community vis-à-vis Israel have recently come under discussion. How does the “The Democratic Constitution” fit into these endeavors?
Marwan Dalal: Documents discussing the “Future Vision” for Arab society have been published, and other documents are currently being prepared. Their significance lies in the fact that each of them, with its own perspective and specialty, contributes to the discussion on the historical, social, economic and legal status and position of the Arab community in Israel. These documents are raised for deliberation in the public sphere, and are worthy of discussion.
Kol al-Arab: Are there any practical steps which Adalah intends to take following the publication of “The Democratic Constitution”?
Marwan Dalal: Yes. The goal is to have a serious discussion with the Israeli Jewish elite, which demands that Arab society either accepts the status quo – that is, for there to be no democratic constitution in the country, and very few, inadequate guarantees of rights in the form of the Supreme Court – or else demands that it agrees to constitutional proposals which ingrain the marginal status of Palestinian citizens of Israel and fail to guarantee them even a minimum level of equality or to achieve any justice for them. We will also launch a campaign to enlist international experts in the fields of human rights and constitutional law in backing our proposed “Democratic Constitution”, and to present it on international platforms.
[*] This interview was published by Kol al-Arab on 9 March 2007 in Arabic.