Constitutional Convention, Now
It is astonishing that in all the furor currently swirling in Israel about the coalition’s plans to upend Israel’s whole political and juridical system, our political DNA, we have not heard demands for a fix of the problem which underlies and enables the current crisis: Israel’s lack of a liberal constitution that defines Israel’s democracy.
The fundamentals of such a document have long existed, laid out in Israel’s founding expression, its Declaration of Independence, which promises equal rights for all, regardless or religion, ethnicity, or gender. A constitutional convention called to finish the job, therefore, would not start from zero, a situation which would rightly terrify all, from left to right, in which anything could be open to discussion and establishment, from the end of Israel as the Jewish nation-state to the creation here of a Jewish theocracy and fascist, majoritarian “democracy,” lacking all core principles of civil equality and human rights for all, and systems of balanced, transparent functioning—the now famous principle of “checks and balances” between executive, legislative, and judicial branches of government, unfamiliar to many Israelis until very recently.
In the endless debates which have gripped this country since the election of a radical, jingoistic, theocratic coalition last November, we have heard much critique of Israel’s existing system, in particular, accusations of an overly powerful judiciary that supposedly functions as a legislature, and assertions about systems in other countries in which there is political appointment of judges and legislative override of Supreme Court decisions. All this, to assert that there is nothing radical or threatening in these core goals of the coalition’s program. This assertion is made by cherry picking aspects of the systems of other countries which, unlike Israel, have bi-cameral legislatures, with specified divisions of competence between the chambers; multiple states in a federal system, with defined limits on the powers of each; and above all, Constitutions, which designate fundamental rights and obligations of citizens and government and the particulars of the relationship between the executive, legislative, and judicial branches of government, all of which, Israel lacks.
It is Israel’s lack of a Constitution with such specifics which has landed cases, from equal obligation to military service, directed at systematic, government-enabled, haredi draft evasion, to the dismantling of illegal settlements, which should have been handled in the legislature, in the hands of the Supreme Court. The criticism has long been leveled at Netanyahu, who has served as Prime Minister for most of the last 15 years, that he deliberately avoids having such politically unappealing cases brought to a vote in Knesset by his party, leaving civil groups to appeal such cases to the Supreme Court. The Court can then, conveniently, be blamed, in protests not just of the specifics of rulings but the very fact of making them, as acts of arrogant overreach.
The dysfunction Israel currently suffers, which enables demagogues with a totalitarian agenda, must be ended through the articulation of basic and inalienable civil rights and obligations of citizens and a structure of tri-partite governance, with checks and balances between them, all of whom and which are subject to the Constitution.
We all know at least the basics of why Israel’s founders did not write a Constitution at the time of the country’s founding, when it was attacked in a war of destruction and faced existential challenges in the years immediately following that war, with the feared impossibility of reaching consensus with religious elements and the imperatives of survival taking priority.
We have seen and are paying the price for the ongoing failure, 75 years later, to address and rectify this terrible lacuna in basic functioning. It is time for that rectification.
There has never been a time in Israel’s history in which society as a whole is roused as it is now about these issues, understanding as never before, how critical it is to have these matters settled in a binding structure, a skeleton holding the society and its different parts together. Over a million people have demonstrated over the past two months, the threat of a totalitarian theocracy no longer theoretical but being advanced at lightening speed by a coalition with a 4-seat majority in the Knesset. Individuals and parties whose nature, intent, and deadly seriousness may have been unknown or underestimated until now, are now open and known entities. Many of us never heard of Simcha Rotman until very recently. Suddenly, he is immensely powerful, and effective, running the Knesset Constitution (yes, that word actually appears), Law, and Justice Committee ruthlessly to rush bill after bill of the coalition’s program to the Knesset floor.
His ideology is now exposed for all to see, having been laid out in lengthy, detailed, print interviews, notably, in Haaretz; and publicized in clips of statements he made to students at Reichman University. Rotman, functioning as the executive arm of Justice Minister Yariv Levin to advance the coalition’s goals, has made us all aware of a radically new definition of the term, “democracy.” To Rotman, his mentors in the Kohelet Forum, and his followers, this means two things: simply and entirely, the will of the majority, regardless of content, explicitly including denial of equal civil rights, even the right to vote, if the majority so rules; and, the crucial second part—the word of God in the Torah, as adjudicated, necessarily, by rabbinic authorities Rotman, and Bezalel Smotrich, Itamar Ben Gvir, Avi Maoz and the other members of their parties and the haredi parties, recognize and authorize with this function. Majoritarian democracy and theocracy join inextricably in this system. Rotman says clearly that the adjective, “liberal” is an accretion to the basic term, “democracy,” and not at all, a necessary one; certainly not one that he and the rest of this coalition accept, specifically, about the rights of LGBTQ citizens. Principles of interpretation and the content of “democratic” rule are to come from theocratic authorities.
One of the main areas of life and law which Ben Gurion and the other founders of this country sought desperately to avoid, therefore, is front and center now, demanding clarification and restraint: the role of religion in Israeli life. It has long been known that the resolution Ben Gurion came up with—giving a recognized State rabbinate control over “personal status” issues—marriage, divorce, birth, death—of Jewish citizens, is dysfunctional and has led to corruption and abuse. It is now crystal clear that the lack of definition—limits—on the respective spheres of State and religion is leading us to catastrophic crisis and the potential end of Israeli democracy. The can kicked down the road in Israel’s early years has become a mine, threatening the cohesion and existence of this State. This question can no longer be ignored; it is staring us in the face now with the threat of a theocratic regime in which women are denizens, at best, their rights not anchored in constitutional law but subject to the rule of men wedded to patriarchal misogyny as the word of God.
Not long ago, Roni Kuban did one of his signature, in-depth, TV interviews, this time, with former Chief Justice of the Supreme Court, Aharon Barak, the central bogey man in the furious, aggrieved, vindictive, narratives of those behind the current system upheaval. Asked if he saw himself as “privileged,” a chief accusation hurled against the current “elites,” who supposedly run the country against the “people’s” will, Barak answered in the negative and defended his statement. I won’t go into those specifics but do wish to note that Barak, having enunciated rights which, in his mind, are critical for Israel’s legal system to defend, tossed off marriage and divorce as properly delegated to rabbinical authorities. There could be no clearer example of wholly unconscious, patriarchal, male privilege.
In this country, which lacks an option for civil marriage and divorce, the default system of marriage for Jewish citizens is one in which the man, accurately enough, called the “baal,” or “master,” “owner,” acquires exclusive access to his wife’s sexuality and reproductivity, which he sanctifies in the legal enactments of kinyan and kiddushin. These acts are inherently, fundamentally, degrading to women, treating them as sex objects in the act of marriage. They are also the origin of iggun, Jewish marital captivity, to which each and every woman who marries in this manner is subject and into which she can fall in an instant. It is high time that women have a foundational say in matters that affect their life and liberty in this country.
A Constitutional Convention should be called now to debate all this and draft a Constitution. The people already have elected representatives in Knesset. They should begin this process, inviting jurists and legal scholars but also NGOS who represent the unprivileged and underprivileged in this society, people well familiar with the dysfunctions and failures in real time of Israeli democracy to protect the weaker segments of society, those in most need of a Constitutional framework which makes the right to such protection basic and inalienable for all citizens.
At last week’s demonstration in front of the President’s Residence in Jerusalem, former Supreme Court Justice, Elyakim Rubinstein addressed the estimated 15,000 assembled, of whom, I was one. Afterwards, I found myself walking alongside Rubinstein, whom I have encountered in the long process of pressing for enforcement of Jewish women’s already-recognized right to full religious expression at the Kotel in a case before the Court, as we found our ways home. My sign at these demonstrations calls for enactment of Israel’s Declaration of Independence as a Basic, or Constitutional, Law, something former Justice Minister, Tzipi Livni proposed long ago. I asked Justice Rubinstein why he does not participate in convening a Constitutional Convention at which this and the other urgent questions would finally be addressed. His response, echoed by several around him, was that this has been tried many times, and gone nowhere.
But now is very different; indeed, a time unprecedented in Israel’s history. Now a cumulative mass of millions in the streets don’t just see but feel in their bones the urgent need for anchoring basic civil and human rights—and a full, tri-partite system of government, with defined functions for each branch and checks and balances between them, all subject to constitutional law setting limits on what is legal—in a Constitution.
The time is now. Elected representatives can and must call a Constitutional Convention, based on Israel’s Declaration of Independence, and finally, carry that unfinished job to conclusion.