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Making do with the Declaration of Independence By Ze'ev Segal Tags: constitution Given Israel's lack of a written constitution, the High Court of Justice has used the Declaration of Independence as a basis for defining individual rights. But the declaration is not a constitution that can supersede laws that contradict it. Rather, it is the credo of a Jewish and democratic state that respects the rights of all its citizens, guaranteeing equal political and social rights and freedom of religion and conscience while forbidding discrimination on the basis of race, religion or sex. Had the founding fathers enacted the declaration as a constitution, various Mandatory laws that are inappropriate to a democratic state - such as the Emergency Defense Regulations and the Press Ordinance - would have been annulled almost automatically, while laws such as the Rabbinical Courts Law (Marriage and Divorce), which violate the freedom from religion enshrined in the declaration, might never have been enacted. But the declaration never set itself up as a constitution. Rather, it spoke of the need to establish elected institutions of government "in accordance with the constitution" to be drafted by the constituent assembly. That assembly was chosen in January 1949, through general elections in which an enviable 87 percent of the 500,000 eligible voters participated. But it promptly enacted the Transition Law, thereby turning itself into the First Knesset. This name change indicated that it did not intend to grant the country a formal constitution - one that would have supremacy over Knesset legislation, and that could only be amended by a special majority. Advertisement The First Knesset, at the urging of David Ben-Gurion, also rejected the idea of enacting a formal constitution. Instead, it proposed a "piecemeal constitution" - one enacted gradually, chapter by chapter, with each chapter constituting "a fundamental law in and of itself." These "fundamental laws" became the 11 Basic Laws that have been enacted to date. Only in 1992 did the Knesset adopt the first Basic Laws aimed at protecting human rights: the laws on Human Dignity and Freedom, and on Freedom of Occupation. In 1995, the Supreme Court ruled that it had the power to overturn ordinary legislation that contradicted the rights anchored in these two Basic Laws. Later, it ruled that it also had the authority to overturn ordinary legislation that contradicted any of the other Basic Laws. The Basic Laws are supposed to be united into a formal constitution some day, but that day keeps refusing to arrive. All that remains of the idea of a constitution is the name of the Knesset's Constitution, Law and Justice Committee, a reminder of its ongoing task of finishing the process of enacting a constitution. The method of finalizing a constitution by enacting additional Basic Laws has effectively been blocked since the new version of the Basic Law on Freedom of Occupation was enacted in 1994. The enactment of a new version of the Basic Law on Government in 2001 was merely a repeal of the earlier version that instituted direct elections of the prime minister; it was not an indication of willingness to continue the process. For some time now, there was been talk of the need for Basic Laws that would explicitly recognize the rights of equality, freedom of expression and the legal rights of people during investigation and trial, but nothing has been done. The same is true of a proposed Basic Law on social rights, as well as the proposed Basic Law on Legislation, which is supposed to define and anchor the special status of the Basic Laws. Former Shas MKs Aryeh Deri and Shlomo Benizri have been quoted as saying that they would oppose the enactment of any new Basic Law, even one enshrining the Ten Commandments, as long as the Supreme Court was the one interpreting it. The current coalition agreement stipulates that new Basic Laws will be enacted only with the consent of all coalition parties. In practice, this agreement effectively blocks the process of enacting the new Basic Laws that are supposed to comprise the state's constitution. But in the current situation, this need for consensus has advantages: It makes it hard for Justice Minister Daniel Friedmann to advance his proposals to limit the High Court's authority and change the composition of the Judicial Appointments Committee, since enacting these proposals would necessitate amending the Basic Law on the Judiciary. Two Knesset Constitution Committee chairs - incumbent Menachem Ben-Sasson and his predecessor, Michael Eitan - have invested great effort in trying to advance the adoption of a complete constitution. Eitan submitted a draft constitution to the previous Knesset, and the Knesset passed a non-binding resolution supporting it, but the draft was never brought for even the first of the three required formal votes. In the current Knesset, Ben-Sasson is leading a similar process, and has held dozens of meetings that produced drafts of important sections of a proposed constitution. However, its chances of being adopted seem slim. Bookmark to del.icio.us   Stronger than its ills The 60th anniversary celebrations are accompanied by a bad taste. Rise in racism Israeli Arabs say institutionalized racism has increased.

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