Experts putting final touches on Israel's proposed constitution
No one expressed the traditional religious approach to the idea of a constitution in Israel better than former Shas leader Aryeh Deri. "Even if the constitution includes the Ten Commandments, we will oppose it," he said, expressing the fear that the constitution's normative superiority could provide the Supreme Court with the possibility of changing the religious status quo.
The next few weeks will reveal whether the ultra-Orthodox camp has indeed made a great leap forward from this position, to the point of being potential partners to the attempt to institute a constitution in Israel. The campaign started by the Israel Democracy Institute four years ago, "A Constitution by Agreement," will culminate in December with the publication of the text of the proposed constitution to the public and its submission to the Knesset.
The constitution was formulated by a public council consisting of 70 public figures including MKs from across the political spectrum and members of the institute. Now they are putting the finishing touches to it. "We are working behind the scenes now vis-�-vis the leaders of the various sectors," says institute president Prof. Arik Carmon. "We wish not only to get their agreement but also their comments. From the psychological point of view, when you get this type of text, it takes time to comprehend that this is a compromise. A religious person, for example, must understand that what he is reading is the result of huge concessions on the part of liberals."
The essence of the compromise between the religious and secular, which made possible agreement on legal arrangements on religious and state issues, is as follows. On the one hand, the religious representatives will agree to the inclusion of a "bill of human rights" in the constitution, such as those found in liberal constitutions in Western countries, including the right to equality, the banning of any form of discrimination, freedom of religion and freedom from religion. On the other hand, the secular representatives will agree to a list of "core religious issues" that are "free of the constitution" - that is, issues which it will be explicitly stated that the court has no jurisdiction to deal with, even if they affect constitutional principles.
The "core religious issues" are: legislation relating to joining a religion, belonging to one or leaving, it; laws that determine the authority of religious tribunals (including, of course, rabbinical courts), marriage and divorce and personal status; the way in which the Jewish character of the Shabbat is portrayed in public; and the keeping of kashrut in public institutions.
"We are excluding a limited but important number of issues from the purview of the constitution," says Prof. Yedidya Stern of the institute. "All the other subjects - such as the laws banning the sale of pork, relating to Tisha Be'Av, matza, civil burial and many others - will be open to review by the High Court of Justice. Our major achievement is that we have contained the differences of opinion between religious and secular. On the core issues, we will continue to argue in the Knesset and in court but the constitution will cover all the others. We are motivated by the desire to contain the friction between religion and state."
The ultra-Orthodox representatives, however, are not yet ready to declare support for the formula. "There are still some unresolved issues," says United Torah Judaism MK Moshe Gafni. He says that if the religious status quo is not upset, he believes the Torah Sages will not object. "We have agreed to go along with a constitution but we have not yet agreed on the model," he adds.
Avraham Ravitz, also of UTJ, says: "We have no intention of turning this into a theocracy. It will be a secular state, but Jewish. I told the people at the institute [that] if you put across this point, you will have an easy time with me." He believes the Torah Sages will give the go-ahead in such a case, or at least will refrain from opposition.
The constitution will be accompanied by several subsidiary laws, which will be affected by the political dynamic and will not be static like the constitution. One of these will deal with the status quo on Shabbat. The sides are currently working on a (not yet final) formula that would ban commerce, industry and services on Shabbat, including the closure of out-of-town shopping malls. In return, it will make possible the holding of cultural events, entertainment and sport, and will allow public transportation, "less frequently than during the week."
As for legal jurisdiction over issues in the constitution, this will be in the hands of the Supreme Court alone.
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