First meetings of the Constitution Drafting project

On May 18 and June 1 2003 the Constitution, Law, and Justice Committee held the first two meetings on the Constitution by Broad Consensus Project.

Committee Chairman MK Michael Eitan (Likud) opened the meeting by stressing the historical significance of this first meeting of the Knesset Constitution, Law, and Justice Committee on the issue of a Constitution by Broad Consensus. This is, MK Eitan said, the continuation of a task started in 1949 and postponed when the first Knesset was founded and the decision was made to compose the constitution piecemeal with Basic Laws. MK Eitan pointed to a great deal of progress made over the years; perhaps, he said, we are the last runners in a great relay race that has passed a constitutional torch from generation to generation, from person to person, from committee to committee and from Basic Law to Basic Law.

Circumstances, MK Eitan said, have conspired to make this a time of opportunity. We have a chance, he pointed out, to complete the work started 55 years ago. We may not be the final torchbearers, and we may not write the constitution. But we will have tried and advanced the process, put together concrete proposals. At the very least we will have taken part, advanced the torch and handed it to the next runner.

The committee considered the question of the extant constitutional framework. MK Eitan pointed to the extant basic laws as the nearly complete body of Israel’s constitution; perhaps the only obviously outstanding basic law to be written is “Basic Law: Legislation” which will establish the legislative powers of the Knesset, the procedures for legislation, as well as constitutional review and the balance of powers between the legislature and the judiciary.

Some MKs pointed out that Israel has, de facto, a constitution made of Basic Laws and Supreme Court rulings; we cannot pretend we have the freedom to write on a blank slate as the Americans or Germans did, or even as we ourselves could have in 1948.

The committee discussed the balance which must be found between utilizing and respecting the constitution-in-progress that is the Basic Laws accumulated over 55 years, and the desire shared by many members of the committee to leave no sacred cows.

MK Eitan suggested we are urged on by the activism of the Supreme Court and its steps to legislate a de facto constitution of its own accord. The court has struck down legislation for perceived conflict with Basic Laws that are interpreted with a great degree of freedom. MK Eitan expressed a belief that when the court interprets Basic Laws as a constitution set in stone, it infringes on the authority of a legislative branch which never ratified any such constitution. This presents the Knesset with the responsibility and the opportunity to fill this lacuna with a real constitution.

Knesset Speaker MK Reuven Rivlin (Likud) added that the constitution’s foremost purpose is to defend minorities. None of the fears over balance of power should keep Israel from writing a constitution to defend the minorities which do exist in Israel, and whose need for a constitution will only grow.

The constitution will, MK Eitan said, be comprised of three main elements: a preamble, a part which deals with governmental structure and relations, and a bill of rights. He proposed starting with the governmental element. Members of the committee and visiting academics both proposed a minimalist approach to the text, pointing out that a constitution, once signed, is more difficult to amend than ordinary legislation. The constitution should be a concise text, the details to be filled out by ordinary legislation.

An idea was presented whereby the Knesset would back the committee’s work in advance, and authorize it to produce a number of drafts to be presented to the people in a referendum, thereby granting the committee’s work greater urgency and legitimacy, but that suggestion was ultimately rejected in favor of MK Eitan’s original idea outlined above.

The committee then considered the structure of the debate. MK Eitan brought up the importance of a schedule, to give a sense of what issues will be dealt with and when, considering the body of material that has accumulated on each to this point.

Several MKs discussed the extent to which certain issues have been predetermined, and further, the extent to which many important issues might be delayed to the end or put at the beginning. MK Avraham Ravitz (Yahadut Hatorah), for example, suggested starting with the most difficult issues and the preamble, but MK Yuli Tamir (Labor) disagreed, preferring to avoid getting mired down in the hardest issues at the very start. MK Gideon Sa’ar (Likud) insisted that discussions on the Basic Law: Legislation must be preceded by those on Basic Law: Government. MK Tamir agreed that the committee should first compile an arsenal of draft suggestions, and then a second round of voting and horse trading.

The problem was raised of allowing religious law to be legislated in ordinary Knesset procedure, and interpreted by a secular Supreme Court which depends on and is inspired by contemporary society and lifestyle. Some recommended getting into the Jewish/Democratic issue while the committee is fresh. The rest will then come easier. MK Eitan agreed not to leave the central issues to the end, but did not accede to the requests of some elements to deal with them first.

MK Eitan explained that the floor will be open to all proposals so long as the committee is dealing with a particular subject; but when the subject is closed, so is the opportunity to present new recommendations. This is in order to balance open debate with effectiveness and the ability to progress. MK Eitan stressed the importance of presenting a constitutional draft as a whole, rather than presenting important Basic Laws piecemeal, which he felt would take the wind out of the sails of the constitutional project.

MK Eitan pointed out that the constitution must be approved by the people, but that does not relieve the Knesset of the responsibility to act on their behalf. To this point, the people involved in the constitution have been largely the elite; but MK Eitan proposes to expand the circle. MK Eitan saw the definition of a “Constitution by Broad Consensus” as a requirement to ensure the committee did not approve a draft by just a single vote – so slim a majority would be easy to secure, but risked alienating significant sectors of the populace. Indeed, wherever the committee fails to get at least ten votes for a single proposal, they can offer several options where 10 members did not agree, and bring several options to the Knesset and, possibly, to a national referendum.

MK Avraham Burg (Labor) objected strongly to a referendum, saying they detract from the Knesset’s power to decide on matters of national policy. Other objections to a referendum included the notion that it could allow a tyranny of the majority over the religious-Haredi minority, and that going to “the people” for decisions in between elections is dangerous and destabilizing; the people empower the Knesset to make decisions for them every elections, and the Knesset retains this responsibility.

The committee considered whether they even have the authority to draft a constitution, or whether only the true sovereign – in this case, none other than the Israeli people themselves – could approve a constitution at this stage in the game, requiring a national referendum.

Knesset Speaker MK Reuven Rivlin felt the constitution must be accepted by the overwhelming majority of Israel. Professor Aryeh Carmon, chair of the Israel Democracy Institute, agreed that the importance of consensus cannot be overstated, particularly considering the late stage at which this is taking place. This does not mean, on the one hand, granting veto power to any particular party or interest group, but all need to consider from the start that the possibility that when the work is finished no one will be satisfied. The effort to reach a consensus may require crossing many red lines to complete the task. MK Sa’ar said a constitution must satisfy the four elements he saw in Israeli society: religious, liberal, social, and national, each of whose demands must be satisfied in order to complete a constitution by real consensus.

We must, MK Eitan says, establish broad consensus for a constitution on the basis of Israel’s character as a Jewish and democratic state; it is between these two poles that the central struggle takes place, with some powers trying to pull to the Jewish edge and others to strengthen the democratic pole. Our task is neither to take a stance nor to affect the outcome of this game, but only to define the rules of the game and to station the goalposts. The MKs dealt with the difficulty of defining the role of the Jewish character of the state and the concrete expression of this statement.

MK Nissim Ze’ev (Shas) proposes that the central and difficult issues are the Law of Return, Religion and State, and the Jewish/democratic dichotomy. He says we cannot escape from the fact that the Basic Laws from 1992 call Israel a “Jewish and democratic” state, with the ‘Jewish’ first. However at the same time he claims that by definition, those who want Israel to be ruled by religious law rather than by a constitution are not seated in this house.

MK Reshef Chayne (Shinui) said that the “State of all its Citizens” option is not on the table; MK Eitan agreed, but pointed out that we do all believe that the state belongs to both its Jewish and its Arab citizens.

The committee debated the possibility of a section expressly defining the Jewish State, possibly a Basic Law constitutionalizing such issues as the Law of Return, the Jewish symbols of the state, and the anthem, among others. Reactions to the idea were mixed, including concerns about separating the Jewish from the Democratic issue, and the proposal that any such text be balanced by a parallel text on the democratic issues in Israel. MK Eitan proposed dealing with these legitimate but non-binding possibilities later on in the debate.

The committee discussed the status of the judiciary and the relationship of power between the various authorities. They considered the way the constitution might define the rules of the game for judicial review, which is currently exercised by the Court at its own discretion. Some of the questions raised included, how can laws be repealed? Which courts will have the powers of judicial review? Should the justices of the court given the power to review legislation, e.g. the constitutional court, be nominated differently than the current Supreme Court justices are nominated? Should the nominations be more political, or the composition of the court be intentionally engineered to reflect something different from the current courts?

Several MKs, noting that the Supreme Court makes ethical and moral judgments, not only procedural and constitutional ones, supported the establishment of a constitutional court with special appointment procedures and a variety of voices and mindsets on the bench. They felt this court would be more qualified to make decisions on issues that involve the “expression of our national values” than the current Supreme Court is to strike down laws that contradict the free and democratic character of the state. Supreme Court decisions, they claim, are not merely technical and professional – it would be incorrect and artificial to say that there is no expression of worldviews in such decisions, and as such we must have a different array of people to decide these most basic ethical and moral questions.

Several MKs also said the court must consider the legislator’s intent. We need a constitutional court, they explained, to dedicate itself to interpreting the legislators’ intent if religious Jews are to put their faith in the constitution. The Supreme Court should not oppose this, they argued, it will not detract from its status.

Knesset Speaker MK Rivlin, however, spoke out against the notion of a “Constitutional Court” because creating such a court creates two political systems, which essentially combine the legalistic-interpretative considerations with political considerations, which is an unacceptable situation He brought up the natural conflicts that arise in the checks and balances between legislature and judiciary, noting that the court has the power to interpret law, and that parliament must figure out how to react to that. Other MKs joined in strong opposition to such a court, believing that the current Supreme Court is both strong and experienced, and should be kept in its current configuration and charged with the sole power to review legislation. The damage that would be done to the court with the structural changes involved in establishing a Constitutional Court would, they explained, outweigh the benefits.

MK Eitan concluded that a Constitutional Court is not inherently unacceptable, and it would be wrong to rule it out without debate.

Some pointed to the danger of self-selection of interest groups in the committee’s work. While MK Eitan may leave the floor open to any suggestions, the only ones that will ever make it onto the table will be those of communities with access to the Knesset and the funds and energies necessary to put together proposals. While the work of the Israel Democracy Institute and the various think tanks are quite important, they ignore large social and economic groups whose voice will never be heard in the committee’s deliberations. MKs Bishara and Cohen agreed, and MK Eitan added that he both appreciates and utilizes the suggestions of groups like the IDI, and at the same time promises them that he will constantly look for the alternatives the positions they suggest.