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Martin Sherman

Into the fray: A constitution, the ‘excuse du jour’

The raising of the issue of a constitution as a potential way out of the political impasse over the future of Israel’s legal system is nothing but a red herring on the part of the opponents of judicial reform

I don’t think it is right for the Supreme Court to change fundamental things in accordance with what it refers to as the judgment of ‘the reasonable person.’ That’s an amorphous and completely subjective definition that the Knesset never introduced to the legal codeYair Lapid, articulating his opposition to the reasonableness clause.

If the reasonableness clause is abolished, all lines will have been crossed. It will demolish the authority of the Supreme Court and our democratic structureYair Lapid, articulating his support for the reasonableness clause.

As the obsessive, borderline-maniacal Bibi-phobic opponents of judicial reform continue with their destructive and lawless demonstrations-cum-riots across the streets of Israel, protesting all — and any — government decisions of which they disapprove — whether major changes in the judicial system, minor changes in the judicial system, the dismissal of elected ministers or appointed bureaucrats — a new demand is emerging as a panacea-like balm for the nation’s tribulations. This is the idea of a constitution for Israel. Usually touted as to be based on Israel’s Declaration of Independence, it is suggested that the formulation of such a constitution would placate the demonstrators opposing the coalition’s legislative initiatives.

Seductive and deceptive

A constitution for Israel is a seductive idea and gives the impression of adopting the example of the USA, the leader of the democratic world. But it is also a highly deceptive notion — being far more declarative than substantive in terms of being an effective template that determines the functioning of the political system.

For, the existence of a constitution is no guarantee of individual rights or civil liberties or any of the enlightened goals that the opponents of judicial reform profess to cherish. Indeed, a brief jaunt through Google would reveal that countries such as the USSR (and later, Russia), North Korea, and Upper Volta (later Burkina Faso) all boast constitutions that include(d) an array of lofty human rights. Yet the demonstrators are very unlikely to endorse any of these states as a model democracy for Israel to emulate. Thus, it should be clear to any serious student of political science that an authentically substantive constitution cannot, in and of itself, create societal values. On the contrary, it can only reflect them. For if it does not, it will remain nothing more than a worthless piece of paper, bearing meaningless words and empty promises.

Reflective, not creative

Just how irrelevant the text of a constitution can be, when it does not rest on values a society embodies, is vividly portrayed by the words of the 1991 Rwandan Constitution, formulated just three years prior to the brutal genocide that ripped through that luckless country. It read: “The National Council for Development, meeting as Constituent Assembly …Faithful to democratic principles and concerned about ensuring the protection of human rights and promoting respect for fundamental freedoms, in accordance with the ‘Universal Declaration of Human Rights’… Does establish and adopt this Constitution for the Republic of Rwanda…”

Of course, the terrible carnage that followed soon after the instatement of the constitution served to underscore the staggering distance that can separate noble words and benign intentions from the gory realities in several “constitutional democracies.”

To illustrate the point, consider Article 31, of Burkina Faso’s 2015 Constitution, which proclaims that “Burkina Faso is a democratic, unitary and secular State. Faso is the republican form of the State.” Yet, describing realities on the ground, Human Rights Watch paints a dour picture: “Burkina Faso’s human rights situation seriously deteriorated in 2022 as deadly attacks by Islamist armed groups against civilians surged, military forces and pro-government militias committed violations during counterterrorism operations, and political instability deepened as a result of two military coups.”

Accordingly, with religious radicalism, government abuses, and military rebellion, so much for a “democratic,” “unitary,” and “secular” state, as optimistically set out in the constitution.

Structure vs. substance

This all goes to underscore the vast potential disconnect between the formal structure of a national polity and the mode of its substantive political routine.

Take Pakistan for example. The formal structure of the Pakistani political system has many similarities to that of the US.

Like the US, Pakistan has a bicameral legislature, a federal system of government, a president elected separately from parliament, and a constitution, which purports to ensure civil rights. Yet Pakistan is only in the 102nd place (out of a total of 164 counties) in the 2023 Democratic Index Rankings. Significantly, the US ranks 26th, below Israel in 23rd place! (This finding is not a quirk of this particular ranking system. Indeed, very similar results emerge from an alternative 2023 assessment, with Israel surpassing the US democracy score, while Pakistan — despite its president, bicameral legislature, federal system, and constitution — ranks far lower than both.)

Of course, the converse is no less telling. Just as a formal constitution is no guarantee of substantively democratic governance, so the lack of a formal constitution does not necessarily mean the lack of democratic governance. Thus, eminently democratic countries such as New Zealand, Britain, and Canada—like Israel—do not have a formal constitution. Yet this has not prevented them from providing their citizens with political freedoms and human rights that are among the most comprehensive on the face of the globe.

Constitution: Nothing but a red herring

Of course, the raising of the issue of a constitution as a potential way out of the political impasse over the future of Israel’s legal system is nothing but a red herring on the part of the opponents of judicial reform. A constitution has been an elusive ideal of Israel, literally from its very inception. Indeed, the Declaration of Independence, Israel’s founding document, stipulates that a constitution should be drawn up by October 1948—yet for three-quarters of a century it has not been formulated because of hitherto unbridgeable fissures in Israeli society.

However, despite not having a formal constitution, Israel has for almost eight decades, developed, progressed, prospered, and withstood changes of government, political assassination, grave external threats, and internal unrest, while managing to provide its citizens with domestic freedoms and material welfare among the highest in the world.

So while, in principle, a formal constitution may be a worthy objective, its absence has hardly precluded democratic governance or economic development. Moreover, the opponents of judicial reform know full well that just as no agreement could be reached with them on the reforms, no agreement with them will be possible on the content of an overarching constitution for the country, which would go well beyond the scope of the judicial system and extend to many other walks of life in Israel, over which there are also deep divides.

* * *

Accordingly, the offer of the advancement of a formal constitution for Israel in exchange for dialing down the maliciously and mendaciously choreographed protests against judicial reform is nothing but a devious deception to delay the advancement of the reform. Indeed it is an offer that those proposing it cannot deliver on—nor do they wish to.

As such it, should be robustly rebuffed.

About the Author
Dr. Martin Sherman is founder and executive director of the Israel Institute for Strategic Studies a member of the research team of the Israel Defense & Security Forum (IDSF)-Habithonistim, and a participant in the Israel Victory Project. . He served for seven years in operational capacities in the Israeli Defense establishment, and was a ministerial adviser to Yitzhak Shamir's government. Sherman also lectured for 20 years at Tel Aviv University in Political Science, International Relations and Strategic Studies. He holds several university degrees: a B.Sc. (Physics and Geology), an MBA (Finance), and a PhD in political science and international relations. He was the first academic director of the internationally renowned Herzliya Conference and is the author of two books, as well as numerous articles and policy papers on a wide range of political, diplomatic and security issues. Sherman was born in South Africa and has lived in Israel since 1971.
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