Adalah Attorney's Article on the Constitution-in-the-Making Published in Ha'aretz

Ha'aretz, 19 February 2004

Translated from the original Hebrew by Adalah

A Constitution for Jews Only

There is no chance that in Israel a democratic and liberal constitution will be created similar to the South African constitution

For the past few months, the Knesset's Constitution, Law and Justice Committee has been holding meetings to discuss the creation of a constitution. The hope of this Committee, as well as that of extra-parliamentary organizations pushing for the creation of a constitution, is to establish a constitution based on the consent of all segments of the public in Israel, despite the many disagreements dividing them. Yet it is doubtful that the social-political conditions and the political power relations in the Knesset will enable the creation of a democratic and liberal constitution that protects basic constitutional rights. It is obvious that the potential content of the constitution will be very far from the values of the new Constitution of South Africa, for example, which is considered the most progressive in the world. 

Drawing on the experience of a dark regime of discrimination, South Africa created a constitution that could provide an excellent source of inspiration. The constitution opens by presenting four principles upon which the Republic of South Africa is based: (a) human dignity, the achievement of equality and the advancement of human rights and freedoms; (b) non-racialism and non-sexism; (c) the supremacy of the constitution and the rule of law; and (d) a multi-party system of democratic government. The constitution also recognizes 11 languages as official languages and sets forth the duty of the authorities to use at least two languages at all times in its interactions with citizens.

 

The composition of the Knesset's Constitution, Law and Justice Committee as well as that of the Knesset does not elicit hope of creating a constitution that respects basic constitutional rights. The Right has a clear majority in the Committee. Most members of the opposition in this Committee, similar to the Right, share the belief in basic principles, that are not necessarily liberal, that will be included in the constitution. The Knesset adopts, very easily and by a large majority, laws that violate the principle of equality: infringing the right to child allowances for Arab citizens and banning the naturalization and family unification of Palestinian spouses from the Occupied Territories. Bills proposed by Arab elected representatives to include the principle of equality in the Basic Law: Human Dignity and Liberty are rejected by a large majority in the Knesset. The government advances actions, on a daily basis, the purpose of which are a gross violation of human rights: home demolitions of Arab Bedouin citizens in the Naqab; racist statements by senior ministers including the Prime Minister that address the Arab population as a "demographic problem"; and the adoption of an economic plan that aims to harm disadvantaged communities and more.

 

The probability that there will not be a democratic constitution in Israel is also derived from the positions of those who advocate a clear and sharp separation of powers. Those who hold these views direct their criticism toward the Supreme Court, despite the fact that the latter rules according to the national Jewish consensus when discussing cases stemming from the national conflict. This Court, for example, continues to legitimize the military's activities in the Occupied Territories.

 

The argument of those who criticize the Supreme Court is that the Court intervenes more than it should in the decisions of the executive and the legislature, and by doing so it thus harms the public trust as well as the social fabric, which is based on the separation of powers. Those who argue this do not confront the source of the need for the separation of powers: balancing and restraining the immense power of the executive. According to them, the separation takes precedence over rights. But what meaning is there for powers, even if they are separated, if their actual policy is none other than infringing basic rights? 

 

It is worth emphasizing that the existence of a constitution does not guarantee the realization of a democratic and liberal regime.

 

The US Constitution did not prevent the annihilation of the native population in the country. The 14th Amendment to the US Constitution, which mandates that the government should apply the rule of law equally to all citizens, was adopted only in 1868, and women were guaranteed the right to vote only in 1920. African-Americans started to achieve recognition and some of their rights only after years of struggle, which included, among other things, civil disobedience. On the other hand, in other places such as England, the lack of a constitution did not prevent the development of a democratic regime. In Israel, there are two powers - the executive and the legislature (the latter is supposed to confirm the constitution) - that do not relinquish any measure, which infringes basic human and civil rights. It is obvious, therefore, that one thing is guaranteed in the constitution-in-the-making - the state of Israel as a Jewish state or as the state of the Jewish people. The Constitution of South Africa, it seems, will not provide an inspiration.