Israel is going to elections. The reason? Benjamin Netanyahu’s proposal to add to Israel’s Basic Laws to enshrine Israel’s Jewishness alongside its already enshrined democratic principles. What seems at face value as a relatively uncontroversial, and logical, measure, clearly touched a nerve with some coalition members. Political leaders of ostensibly centrist Jewish parties were willing to lose power, influence, and their place in the coalition over a law recognizing the Jewish State’s Jewishness.
In reality the issue with the Bill was more one of marketing than of substance. Other than for Tzipi Livni, whose fundamental principle is to be unprincipled and would probably oppose any measure strongly emphasizing Jewish identity, the real issue was one of optics. By approaching the issue in isolation, the laws that already exist to protect democratic principles were glossed over and criticism was directed at this law alone. If Mr. Netanyahu wants to enshrine Jewishness into Israel’s very legal soul, one Basic Law is not the approach he should take. Rather, he should embark on a much more ambitious task: achieve consensus for a real, comprehensive constitution. If Bibi could put together a consensus for a real constitution, who could possibly object to the legitimacy of whatever results?
The need for a comprehensive constitution was evident to me from just one encounter I had in the past. When I heard former Supreme Court President Aharon Barak speak in the early 2000s, as a young Canadian law student, I almost couldn’t believe my ears when he claimed Israel had a constitution. Barak described as a constitution the aggregate of laws passed in the same manner as any other law, without a special majority, and at various points in time. To a Canadian who studied the broad-based negotiations and consensus required for constitutional changes in Canada, I found Barak’s beliefs nothing more than a rationalization for advancing his own views of what ought to be.
Israel could adopt a number of approaches to building its constitution. However, I believe the Canadian constitutional documents are uniquely suited as building blocks for Israel’s constitution for three reasons:
a.) Canada, like Israel, is multicultural with a significant distinct minority group within its borders.
b.) Canada’s Charter of Rights and Freedoms is relatively modern, with principles that can easily be adapted to Israel’s needs.
c.) Canada’s constitution is a model for balancing a hierarchy of rights, something Israel requires constantly.
By no means am I suggesting a verbatim adaptation of Canada’s constitution. However, certain principles could be used. Take, for example, how Canada’s Constitution deals with Quebec and francophone rights. Quebec is given a special status and its cultural rights are protected. Like the French language, Arabic could be recognized as having a special status, and Arabic signs could be required in Arab-majority regions. To the extent they are acceptable in a free and democratic society, Arab culture and freedom of practice of the Muslim religion would be protected as well.
Like Canada, Israel will also have some enshrined prima facie discrimination permitted based on the historical circumstances that led to the formation of the country. For example, in Canada, Ontario is allowed to discriminate based on religion and fund Catholic, but not Jewish, private schools due to circumstances at the time of the original Constitution. Likewise, Israel could enshrine certain laws, along the lines of those being proposed by Prime Minister Netanyahu, as immune from the part of Israel’s new constitution dealing with Rights and Freedoms. Institutional respect for areas of Jewish Law like dietary laws, keeping of the Sabbath, marriage (among Jews) and the Right of Return would be protected. Individual liberties would also be protected (for example, a person can eat on Yom Kippur in their private residence), but institutional liberty would be restricted (businesses and government services would be shut down on Yom Kippur)
Most importantly, the people, not the courts, decide what is most important to the State’s identity. Israel’s Supreme Court would be reigned in as a natural consequence of the new Constitution. Canada’s Supreme Court, arguably too intrusive even with a constitution, is radically deferential compared to Israel’s Supreme Court. Unlike in Canada, where standing is required to bring a case to court, Israel’s high court is almost a complete free-for-all of cases. Importantly, there would be some predictability, and High Court judges would not be free to trample the line between interpreting the law and making it.
In addition, the Israeli Supreme Court too often wades into matters of security and foreign policy best left to the Government. One purpose of a constitution is to define the role of judicial review: if laws don’t offend the constitution, they are permitted; if they do offend the constitution, they may be judicially reviewed and changed to the extent necessary. As long as the government acts within its sphere of power and within the constitution, Israel’s Supreme Court should not weigh in. Gone will be the days of the Court reviewing the route of the security barrier mile by mile. Like in Canada, in some cases the High Court will still have a role, but that role will be both limited and restrained.
Israel isn’t a baby country anymore – it is all grown up. A sign of its maturity ought to be the adoption of a Constitution which, subject to changes permitted by whatever amending formula is agreed upon, will finally provide a stable, predictable framework for deciding the constantly evolving issues Israel faces.