Israel Needs a Constitution That's for the People and by the People

A constitution like Israel's own Basic Laws is one of the main means for the preservation of control by the elite groups.

Yuval Albashan
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Yuval Albashan

KATMANDU, NEPAL - The founding convention building in the heart of Katmandu is accustomed to "dignitaries" (in the best tradition, nearly all of them buttoned-up men in suits ) who pass through its gates in order to help establish the constitution that will reshape Nepal after hundreds of years of oppressive monarchy and a bloody civil war. Contrary to expectation, the tens of soldiers scattered around the building did not cock their rifles at the sight of a large group of villagers approaching the building at the end of last week, wearing traditional dress and carrying huge fishing nets and placards. These were representative of the fishing communities in the Terai region, at the edge of the mountainous country, who had come to demand that their rights, too, be recognized in the developing constitution.

The soldiers' reaction suggests that this is a common scene. For the past four years, hundreds of members of the founding assembly have been meeting and discussing the basic questions that will make up the constitution: the government's power vis-a-vis the authority of the Supreme Court; how the value of equality will be reconciled with the caste system; what rights women will be granted, and whether these will also apply to groups and classes that still view women as property - endless questions of paramount importance. Initially, two years were allocated to the process, in accordance with the recommendation of Western experts on constitutional law who are aiding the process. But then a strange thing - at least from an arrogant Western perspective - happened and marginal groups like those fishermen, who for many years had been, for all practical purposes, controlled by the elites and did not really take much interest in a constitution, received information and help from social organizations (first and foremost the United Nations ) and started demanding that their voices be heard, too.

It said the legal community, headed by the Nepalese Supreme Court justices, were opposed to this and demanded that the process end within the allotted time. "In a country with more than 100 languages and innumerable religions, classes and groups," explained one of them, "it is impossible to take everyone into consideration." Sad, but not surprising. Most of the constitutions in the West were written in secret, by strong interest groups and without the participation of the public. That was the formulation method of the American Constitution, which, contrary to the misleading myth, was not written in order to protect the weak minorities but rather in order to maintain the supremacy of the strong, wealthy minority. For that reason, social rights were entirely absent from it.

This is also what has happened with Israel's own Basic Laws. The people with clout, who were represented in the Knesset by ostensibly independent research institutes, lobbyists and Knesset members on their behalf, are the ones who dictated the sanctification of property rights and the exclusion of welfare rights. It is not by chance that the Basic Law on Human Dignity and Freedom was passed in the middle of the night by a minority of Knesset members and without public debate, even for the sake of appearances. A constitution of this sort is one of the main means for the preservation of control by the elite groups.

This is what was supposed to have happened in Nepal - until other, nonjurist professionals came along and demanded integrating marginalized groups into the process that, until then, had not been taken into account. The protests they organized in the streets compelled even the Supreme Court justices to extend the time frame for writing the constitution, open the ranks of the exclusive club and bring more chairs to the constitutional table.

It is possible that this process, in such a fragmented society, will not lead to the desired constitution, but if it does succeed, it will be a real constitution of the people and by the people. For the attention of our own constitutional "experts."

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