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Bryan Schwartz
Law Professor, Author of "Consoulation: A Musical Mediation"

Constitutional Reform and the Saudi Deal

The flailing and failing leadership of Israel continues a reactive agenda on the constitutional front. It is about undoing earlier assertions of authority by the High Court.

The agenda is driven in part by some rational, principled and  legitimate concerns – and largely by  outdated grudges and resentments. The political right has actually  been in power for most of the past decades. It has  secured many appointments to the High Court. It has  succeeded in enacting some fundamental reforms such as the Basic Law on  Israel as the nation state of the Jewish people.

Key actors like Minister Yariv Levin seem to have “target fixation.”  They are so obsessed with finally seizing the moment to  alleviate perceived wrongs of the past that they have lost sight of the  harm they are doing to the social fabric of Israel, its economy, and its international standing.

Even in addressing some overreaches of the past,  the Coalition could—but so far has not – crafted replacement provisions that leave the constitutional order better off.

This is the time, however,  to bring forward ideas that are not about undoing but adding;  about innovative and creative improvements to the constitutional order  that can secure wide agreement. Over the years, or during the recent tumult, even members of the current Coalition have acknowledged such possibilities.

One subject for addition to the Basic Laws could be provisions recognizing fundamental freedoms such as freedom of speech and assembly.

Another could be recognizing the individual right to equality under the laws of Israel. The High Court has already done so – using the Basic Law that recognizes “human dignity.”  Why not do so expressly, in a new Basic Law? The existing Basic Law on Israel as the nation state of the Jewish people would remain on the books. It would  require that any new provisions on individual  equality be construed and applied in a manner consistent with maintaining Israel’s identity as the Jewish homeland.

Israel could also adopt some laws, including Basic Laws,  that  confirm the rights of its national minorities. These are already recognized and observed in many respects under ordinary law and policies  and in some details of current basic laws.

An especially urgent need is to constitutionally guarantee the independence of “gatekeeper” positions in Israel, especially those in the  justice system. Prosecutors and chiefs of police need to be able to exercise independent judgment, rather than fearing retaliatory dismissals for doing their jobs honourably and effectively.

The “right to be unreasonable” Basic Law  passed by the Knesset  recently should have been refined to alleviate- rather than exacerbate – concerns about undue political interference with the police and prosecutions branches of the government.

Anti-Israeli activists at the international level are threatening to have Israel delegitimized, and its leaders and soldiers harassed, by actions such as arrests and prosecutions at the international criminal court. A major safeguard for Israel in international criminal law is that international interference is not required  – or in many cases even permitted – when a state properly supervises its own armed forces. Those who  serve Israel deserve clear assurances in Israel’s s own Basic Laws that Israel’s independent justice officials can do  effectively guide and review the for the use of force.

Constructive constitutional reform could heal internal divisions and project a positive understanding of Israel in the Middle East neighbourhood and international community. It would reassure nervous markets. It would provide desperately needed reassurance to many supporters of Israel in other countries – including Jews who would affirm Jewish  tradition and identity but are finding themselves even more beleaguered by hostility from outsiders and decreasing enthusiasm in their own communities for the Israel connection.

On the international front, the grand policy objective of the Prime Minister appears to be  achieving a peace deal with Saudi Arabia. Let us hope he succeeds. Doing so could counteract  the many current initiatives to delegitimate Israel  and pave the difficult but necessary road to a just, practicable and definitive  settlement with the Palestinians.

The opportunity for a Saudi deal might not come again. President Biden seems to be instinctively positive towards Israels and Jews at a time when many in his own party are becoming negative. He currently  has some advisors who appear to have been willing to spend considerable energy in trying to facilitate peace and security agreement  between Israel and Saudi Arabi and in crafting US-Saudi security commitments as part of such an overall settlement.

Almost everything the current government has done so far on the constitutional front  is instead making peace with Saudi Araba more difficult to achieve.  The government’s series of actions are recklessly jeopardizing Israel’s prospects more widely in international forums, including at  international courts and tribunals.

The constitutional and international dimensions of Israel’s challenges can be addressed in ways that are mutually reinforcing. The current leadership of Israel,  including the Prime Minister, should finally recognize this reality and act upon it decisively.

Basic laws, of course,  take time to draft, explain and negotiate. Not everything can be adopted quickly. But some key measures could – such as securing the independence of gatekeepers. And the Prime Minister could stop threatening an agenda that involves only reactive and divisive measures, and publicly set out – with clarity and specifics-  a commitment to a constructive program.

Having inflicted so much unnecessary harm,  the leadership of Israel should urgently seize its opportunities to do some great and connected goods.

 

 

 

About the Author
Bryan's Jewish-themed musical "Consoulation: A Musical Mediation" premiered in the Spring of of 2018; https://consoulation.com His new album will appear in the coming months. Bryan Schwartz graduated with a doctorate in law from Yale School and holds an endowed chair at the University of Manitoba Law School. He is the author or editor of over thirty books and collections of essays. Bryan also created and helps to deliver an annual summer program at Hebrew University in Israeli law and society. He has served as a visiting Professor at both HU and Reichman university. . As a practising lawyer, Bryan has argued a number of cases at the Supreme Court of Canada, advised governments, and served as an arbitrator at the provincial, national and international level.