The introduction to any constitution is considered to be one of its important parts, if not the most important part. Besides the legal importance of the introduction, it also has educational and public importance, and is even studied in schools in many countries. In addition the introduction has a symbolic and historical importance, because it expresses the fundamental principles of the state, is based upon its historical narrative, and defines the components of collective identity. Moreover, the introduction is a cornerstone for the subsequent articles in the constitution, which are to be interpreted in the spirit of the introduction; the interpretation of these articles should in no way contradict the introduction to the constitution.

Adalah published the “Democratic Constitution” just over two months ago as a proposed constitution for the State of Israel. One of the goals of publishing this document is to present an alternative to the various constitutional proposals put forward by Israeli groups in recent years – proposals that are not based upon basic democratic principles and refer to Arab citizens as foreigners and immigrants in their homeland.

The process of formulating the Democratic Constitution took just over two years. Publication of a draft version of the Democratic Constitution at this stage is aimed at generating a fruitful public discussion, in the hope of arriving at a final version.

This month, we have arranged a virtual roundtable discussion on the subject of the introduction to the Democratic Constitution, which addresses the educational and public aspects of the introduction as well as its narrative.

Dr. Ariella Azoulay* and Prof. Adi Ophir** The Forgotten Question of Citizenship The proposed “Democratic Constitution” makes a very important contribution to political discourse in Israel. The preamble to the constitution clearly sets out the standpoint of the Palestinian minority, and sketches in a legitimate and just manner the historical-political place from which the members of the minority speak, and challenges the prevailing voices in Jewish Israeli society. However, the implied speaker of the text of the introduction evades defining his status as a citizen, and continues to speak of his national identity as a member of a minority in a state that is not his own. If citizens from a single national group proposed a constitution for all citizens of the state, they would have to speak at once as members of the same group, and as citizens. They cannot suffice with presenting a complaint of the minority. They must also put forward a framework for a comprehensive partnership, which allows Jewish citizens, who are not members of the Palestinian national group, to envision themselves as a part of the universal subject to which the text refers. This framework of civil partnership must clearly articulate an obligation towards the a-national state, which is supposed to make civil partnership possible and preserve it, precisely because it is meant to protect national existence of each of the national groups of that live within it. Instead, however, the speaker in the introduction to the preamble (the word of the Chairman of the Board of Directors) presents himself as a Palestinian, while the preamble itself speaks of the Palestinian minority, making reference to the universal declaration of human rights on the one hand, and specific demands for the Palestinian minority on the other. The question of citizenship and its relation to the state is thus forgotten. * Ariella Azoulay is a senior lecturer at the Program of Hermeneutics and Cultural Studies, Bar-Ilan University. ** Adi Ophir is an associate professor at the Cohen Institute for the History and Philosophy of Science and Ideas, Tel Aviv University.

Dr. Ariella Azoulay Prof. Adi Ophir

Prof. Samera Esmeir *

What Constitutes the Constitution?

The preamble to Adalah’s “Democratic Constitution” is overwhelmingly tragic. Its tragedy lies not in the preamble’s indirect testimony of the particular life Palestinians were destined to suffer in a state that birthed itself by consistently negating them. The tragedy of the preamble is also not to be found in the political compromise that could have risked the singularity of the Palestinian narrative. For, as the authors of the Democratic Constitution implicitly tell us in the first explanatory remark, political compromise will characterize the preamble of the future constitution of the State of Israel, not theirs. In an act of disavowal of political compromise, the Democratic Constitution declares itself to have been constituted by universal human rights covenants and declarations. Hence, the first three paragraphs of the preamble, with the exception of the words “The State of Israel” that appear at the end of the third paragraph, could easily open the constitutions of other countries. They read beyond concrete histories, as though they belong not to Israel, to Palestine, or to any other place in the world, but to the imagined space of the universal that can now be translated into local realities. The following four paragraphs proceed to accomplish this work of translation. They relate the Palestinian narrative of subjugation and dispossession, while suggesting that the answer to this narrative can be found once Israel accepts the dictates of universal legalities. What is tragic about this preamble, then, is that it itself is constituted by what it disavows: a compromise between the universal right and the particular plight. The preamble goes even further to subject the second to the first. Put in a slightly different way, what is tragic about the preamble is that its admirable attempt to imagine, indeed to constitute, a new democratic political community can only succeed by prioritizing a singular universality and by neglecting multiple other narratives that could also constitute the founding law. But perhaps what should constitute this constitution are not pre-constituted international legalities, but particular histories, specific struggles, concrete identities, life stories, ethical belongings and historical losses that can birth a new law for a reconfigured political community. And yet, if such concrete work of constitution making were indeed to be possible, would we still be living in the same globalized world, and would we still need founding constitutions?

* Prof. Samera Esmeir is an Assistant Professor in the Department of Rhetoric, University of California at Berkeley.

Dr. Aeyal Gross*

The preamble to the democratic constitution of South Africa declares: "We, the people of South Africa … believe that South Africa belongs to all who live in it, united in our diversity. We therefore … adopt this Constitution … so as to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights." This preamble is the most salient example of an introduction to a modern constitution that tries to fill a unifying and reconciling role, and to serve as a bridge between a regime based on discrimination and an egalitarian and democratic regime. Could the preamble to a future Israeli constitution play this kind of role?

The introduction to the “Democratic Constitution” proposed by Adalah speaks of learning the lessons of the past, of historic reconciliation based on recognition of injustice, and of the participation of deprived groups in the process of setting constitutional norms. But in order to achieve historic reconciliation, mutual recognition is necessary. Mutual recognition does not mean an equal share of responsibility for causing the injustice. Thus, for example, there is no symmetry between occupier and occupied in the Israeli-Palestinian context. But if recognition is only demanded from one side, it is hard to think of historic reconciliation and the ability of the constitution to serve as a bridge between the past and a democratic and equitable future. The introduction proposed by Adalah deals at length with the injustices that Israel has inflicted on the Palestinians, and demands that Israel recognize these injustices and its responsibility for them. This is a legitimate demand. However, the introduction lacks a demand for mutual recognition by each of the two main groups, Jewish and Palestinian, of the other's connection to the State of Israel. The introduction includes a discussion of the Palestinians' connection to the land, but not that of the Jews. There is no mention of the injustice caused to the Jews throughout the conflict, particularly in the context of violent activity and acts of terror that were often directed against civilians. One could argue that the introduction deals with the Palestinian Arab minority in Israel, while injustices of this type were caused by Palestinians living outside Israel. However, since the introduction speaks about reconciliation with the entire Palestinian people, and about the need to withdraw from the occupied territories, it is difficult to accept this argument.

Article 9 of the introduction to the Democratic Constitution stipulates that Jewish and Arab citizens should respect each other's rights to live in peace, dignity and equality, and that the different groups should be united in the recognition and respect they accord to the differences between them. These are important things, but they are not enough.

In order for the introduction to be able to fulfill the role of reconciliation, recognition and democracy, language is needed that speaks to all of the citizens of the state. As noted, this does not mean symmetry. Only mutual recognition, however, can lead to a constitution that begins, perhaps, in the spirit of the South African constitution, with the words, "We, the citizens of the State of Israel, believe that Israel belongs to all who live in it."

* Dr. Aeyal Gross is a senior lecturer in constitutional and international law at Tel Aviv University.

Dr. Johnny Mansour*

The introduction of the “Democratic Constitution” contains the foundations of every regime that has adopted democracy, principally equality, justice, freedom and human dignity. It also includes central and basic fixed elements for the Palestinians in Israel, the most important of which is their reliance on what strengthens the Palestinian national identity, as a central component of their belonging to their homeland and the Arab heritage.

The introduction proposes a basis for reconciliation between the Palestinian and Israeli peoples, as an opportunity to open a new page in relations between the two sides. This proposed basis is Israel’s acknowledgment of responsibility for its actions in 1948 in terms of expulsion, destruction, killings, looting and the ethnic cleansing of the Palestinians, as well as its acceptance of the resolutions issued by the international community, first and foremost UN resolution 194, which guarantees the right of return.

The introduction deals with the fact that a solution to the conflict will not come about except through a return to the legitimate and just UN resolutions regarding the Palestinians, and that any solution that does not ensure dignity for the Palestinian people will not succeed.

The introduction also touches on the form of the state and its future content, rejecting the concept of the “Jewishness of the state”, and adhering to the concept of “a bilingual, multi-cultural, democratic state,” which will provide respect, peace and dignity to the two peoples.

I would like to identify some points which, if added or appended to this introduction, would strengthen and consolidate its overall content.

1. The issue of the collective memory of the Palestinians, as a part of the legacy they carry with them constantly, out of the firm belief that it is part of their historical, existential and national make-up, within their connection to the past, the land and the people who have lived and remain on this land, without leaving it.

2. The issue of a more pronounced emphasis on the fact that the Palestinians in Israel and in Palestine are, together, the original inhabitants of this land, and represent the extension of their ancestors over thousands of years. I believe that it is necessary to emphasize effective partnership in all the economic, natural, administrative and other resources and wealth of the country, as a step towards a genuine reconciliation between the two peoples.

3. An emphasis on the fact that reconciliation is a central and important matter, as it constitutes a basis for arranging the future of the country and those who live in it, who benefit from living their lives in it, and are of benefit to it in return.

* Dr. Johnny Mansour is a historian and a lecturer at Mar Elias College in the Galilee.

Antwan Shalhat*

The Awakening of the Present from the Ruins of the Past

One of the important features of the preamble to the “Democratic Constitution,” proposed by Adalah, lies not in its reliance on the norms and culture of human rights alone, although the importance of this should not be overlooked, but also in the attempt to awaken the present from the ruins of the past.

It is not possible, indeed inconceivable, to think of the reality of the Arab citizens in Israel and their desired future without taking this past into consideration, which has not been destroyed. The issue is the same, from our side and from that of the other, to whom this past shows itself like a bogeyman or Medusa, which should not be heeded or approached.

However, this consideration at the same time entails a noble cultural position, and this is merely because it departs from blind imitation, and from alienation or nihilism, in a way which responds above all to the general conception of our national identity. This is the conception that profoundly informs that the identity is what personifies the self, and what distinguishes it at the same time, within the framework of a domain rich in indications of the openness of the age and of the other.

The awakening of the present remains an extremely important mission for many notable reasons. Whatever these reasons may be, two of them must be paused over:

Firstly, our present has been cut off from the past by the act of an external and known agent, which the preamble of the “Democratic Constitution” identifies unambiguously, out of concern for the need for it to face the consequences of its actions.

Secondly, the desired future is dependent on the rebirth of the present and the conduct of the powers active in it, within the correct orientation.

* Antwan Shalhat is an author, literary critic and a translator of Hebrew and Arabic literature. He has also worked as an editor for the Al-Ittihad and Fasl al-Maqal newspapers.

Prof. Ramzi Suleiman*

The Presence of the Absentee

The dry legal style of the draft of Adalah’s “Democratic Constitution” does not deceive me, because the human spirit that imbues the text is easily discernible between its lines. However, an important element is missing from this text: the complete other. After all, even if the other is a tyrant and an oppressor, he is also a human being. As such, he is also entitled to have the laws of justice applied to him.

It is true that the symbiosis in the relations of oppressor-oppressed binds both in its chains, and that the liberation of the oppressed also loosens the fetters of their oppressors. But the same extent of asymmetry in the relations of the oppressor-oppressed exists in the opposite direction regarding their respective levels of responsibility when seeking to be rescued from their shared shackles. It also exists in the opposite direction with regard to the magnitude of the assurance that each side must give the other, promising that his life will not be harmed, and will even improve, after the releasing of these shackles.

Did the authors intentionally push the other beyond the lines of their text? Did they seek thereby to grasp the illusion of imagined power with regard to the other? I do not think so at all. I believe this to be a case of unconscious forgetfulness on the part of members of an oppressed minority, who do not always succeed in liberating their consciousness from the dictates of the existing power structure. It is as if the controlled consciousness says to its owner: Who are you to dare to chatter about the rights of the sovereign?

There is no stronger expression of the presence of the oppressing other than the absence of the other from the text. These lines are a plea to my dear friends, the authors of this formative text, to open the gates to the other. The invitation of the other into the text is likely to help him to become weaker and thus make him more human.

* Prof. Ramzi Suleiman teaches in the Department of Psychology, The University of Haifa.