Constitution Now!

The Trick:

Both sides of the Judicial Reform kerfuffle want you to accept the fact that the government rules us, when it should be serving us.

The Judicial Reform may be an improvement on the current state of affairs in Israel.  Currently, Israel’s Supreme Court has no limitations on it whatsoever, and it holds the supreme power both to prevent actions by the government and the army — based on nothing more than the feelings of the justices that said actions are “unreasonable” — and to order actions by the government and the army.

But the Judicial Reform itself grants the Knesset something almost as far-reaching as the current authority of the Supreme Court.

Some people have argued that if part of the government is to have that kind of authority, it should be the part that gets elected by the people, and not the part that gets selected by a committee of 9 people, 3 of whom are already on the Supreme Court, two of whom are representatives of the State Bar association, and one of whom is the Attorney General, who is essentially the long arm of the Supreme Court over the government.

But that’s a shell game. It’s a trick, intended to distract you from the false assumption that “part of the government is to have that kind of authority”. Both sides of the Judicial Reform kerfuffle want you to accept the fact that the government rules us, when it should be serving us.

Note: Both the Knesset and the Supreme Court have in common the fact that they can act with impunity. Both have the power to arbitrarily suspend elections until further notice. Opponents of the Judicial Reform harp on the fact that the Reform would grant the Knesset that power, but the Knesset already has that power. And so does the Supreme Court. We, the citizens of Israel, have to rely on the good will of the government not to do things like that.

Is that what we want? Do we want to have to rely on anyone in the government having our best interests in mind?

I was searching around to see if there had been any proposals for an Israeli constitution, and I found only one that was more recent than last century. And it made some very interesting observations. One that really got me was the sentence uttered by David Ben Gurion back when Israel was actually trying to create a constitution, and which expressed his opposition to any constitution: “A new constitution will bind the hands of the legislator.” Yes, he actually said that. But that’s the point of a constitution. It is precisely to bind the hands, not only of legislators, but of judges as well.

Another was “A constitution is not a weapon by means of which one side in a country can impose its position on another side.” And let’s be honest. The reason we don’t have a constitution is, at least in large part, because we lack a unity of ideals.  And people who create constitutions always seem to want to inject their ideals into it. Questions of social justice, questions of policy, questions that we in Israel are far too divided on to include in any kind of constitution.

The Knesset website has a page called “Constitution for Israel“. On this page, it says:

In a democratic state, the constitution places limits on government, in order to prevent it from abusing its powers. The constitution also aims to prevent a tyranny of the majority, and therefore must protect both basic human rights and collective rights of minority groups.

In other words, “collective rights of minority groups”, rather than rights of individuals, must be, according to this page, baked into any constitution. But how can a country with so many different views on what that should mean include that in a constitution? This proposal for a constitution does include a Bill of Rights at the end (labeled as “suggested amendments” on the site), but they are general rights that apply to all people, and do not push any particular political position on others.  Which, in my view, is how it should be.

Notable Features:

I want to go over some of the things in this constitution that I think are particularly noteworthy. The first, most obvious thing, is that it’s based on the US Constitution.  Even if the author hadn’t said so explicitly, it’s obvious. And after the hellish years of rapid fire elections and coalition drama, I for one am happy to see that. I grew up in a country where elections were regular, and where we didn’t have to wait for groups to fight about ministry seats and nonsense like that. After 20 years living here, I still can’t wrap my mind around that sort of banana republicness. To me, and I know this is a subjective view, the Israeli political system looks like an amateur production compared to the American one.

Don’t get me wrong. The US Constitution is great for a lot of things. But it was never designed for a country of that size. And it had holes in it that only became visible in hindsight. But it’s kept the US going for well over 200 years, and I think it makes a solid basis for an Israeli constitution. With changes, of course.

The first thing that impressed me was probably the most controversial thing in the whole document. It proposes that voting in national elections be limited to people who have served the country. Not that it would take any voting rights away from anyone who already has them, but for new citizens and new adults, going forward, it would be a right that would need to be earned. And such service wouldn’t be limited to army service.

Why is this a good thing? Where do I start? Here’s the biggest example of why this is a good thing. There are two segments of Israeli society that don’t regularly serve in the IDF. In both cases, there are exceptions, but I’m talking about the general rule.  These are Haredim and Arabs. And there’s a solid reason for it in both cases.

Haredim don’t want their children to serve in the IDF because one of the purposes of the IDF is, and always has been, to socialize Israelis into Israeli culture. Let’s leave aside whether that should be a purpose of the IDF. I don’t believe it should, but I know that I’m probably in the minority on that point. But Haredim have cultures of their own that are very important to them. That are a fundamental part of their Jewish identity. Why should they have to put that in jeopardy? Sure, there’ve been attempts to create special Haredi units in the IDF, but ultimately, those are tolerated, rather than embraced. The kashrut in the IDF is not up to Haredi standards, and the halakhic determinations by the IDF rabbinate regarding Shabbat, modesty, and a host of other issues, aren’t to their standards either. Drafting them is, in a way, an attempt to fundamentally change them. A lot of Israelis are okay with that, because they find them distasteful. I find that distasteful.

Arabs don’t send their children to the IDF, for the most part, because the state doesn’t trust them not to side with our enemies. Sure, the government will deny that, because, I mean, what a terrible thing to say about fellow citizens. But what other reason do you think there is? We’ve failed over the past 75 years to make most Arabs feel as though they are are part of the country. Yes, Israel is a Jewish State.  The Jewish State. But that doesn’t mean non-Jews can’t be part of it. The UK is an Anglican Christian state, but that doesn’t mean non-Anglicans have fewer rights than anyone else. It doesn’t mean they can’t be a fundamental and vibrant part of the country.

But despite understanding the reasons for Haredim and Arabs, on the whole, not doing any national service, we all realize that it’s wrong in some way. And even Israelis who don’t want to crush their Haredi-ness out of them still feel that they owe the country that supports and defends them, and should bear the same burden as everyone else in the country.

Separating out the one right of voting (and running) in national elections as something that must be earned is a good thing. And allowing a multitude of national service options can make that feasible. Someone who doesn’t do anything for Israel should still have the same personal rights as everyone else. But should they be entitled to decide on the direction of the country?

Note: if not for the “grandfather clause” ensuring that everyone who has the right to vote now will retain it, I’d be one of the people without a right to vote in national elections under this constitution. In such a case, I would absolutely seek out national service so as to earn that right.

Having the IDF be only one type of national service out of many would allow it to professionalize. To accept only the recruits that it actually needs, and to pay competitive wages to the professionals it employs.

An End to Party Rule:

Parties divide. Their very name in Hebrew means division.

The other changes in this constitutional proposal are more structural. Like separating the executive branch entirely from the legislative branch, splitting the Knesset into two houses, one elected regionally and one elected at large, and having all elections be for individuals, rather than for parties. Parties divide. Their very name in Hebrew means division. It also includes term limits for every government official. Even Supreme Court justices would be limited to a single twenty year term.

And elections are fixed. We would always know how long terms are and when it will be time to vote again. And, I almost forgot, it would stop the theft that happens every time we have a national election. Yes, theft. Every time we have national elections, a vast sum of money is given to every party currently in the Knesset — for each seat they have. Think about that. The people in power fund themselves — with our money — to remain in power. In 2015, the amount paid per seat was NIS 1,375,000. That means that of the half a billion shekels wasted on every election cycle, 167 million shekels, or a third of the total, is spent to help the parties in power stay in power. That’s brazen theft. A kind of corruption that most of us don’t even know is happening. And it would be forbidden by this constitution.

If I could have one wish, it would be for everyone on both sides of the Judicial Reform fight to sit down, shut up, and go to http://chukatyisrael.com/en/index_en.html and read up on a solution that would, in my opinion, satisfy everyone.

We can keep fighting about the things we disagree on. Nothing in heaven or on earth is going to stop that. But we can at least do so with a stable government that puts the people first.