Once again, the Knesset Constitution, Law and Justice Committee is trying to bring up a discussion on the proposal for a constitution for Israel. At first glance, this seems like a worthy idea, because anyone who objects to the enactment of a constitution is immediately considered unenlightened and an enemy of human rights. In this connection, we will do well to recall what Max Nordau said: Modern states sometimes believe that a constitution belongs to the realm of good taste, just as every decent bourgeois home must have a piano, even if no one plays it.
We need to consider whether the harm in placing the subject of a constitution on the public agenda does not outweigh the benefit.
The passages recently published from the preamble to the draft constitution, which addresses the character of the state, its symbols, language, Jewish immigration, naturalization and the like, already augur the difficulties that can be expected in the public debate. These are issues of deep ideological and moral dispute: among the Jews, between the Jewish majority and the Arab minority, and between the various religious communities and the diverse secular approaches.
Does anyone think that agreement, or even a majority, can be reached on a particular formulation of the significance which accrues to Israel's being a Jewish state (or the state of the Jewish nation)? And how are religious and secular groups going to reach an agreement on the meaning of the state being a Jewish state?
Moreover, there is no doubt that Israel faces a complex challenge due to the fact that some 20 percent of its citizens are Arabs, many of whom espouse a problematic attitude toward the Jewish state and some of whom also deny its legitimacy. Does anyone think that if the Jewish majority declares in a constitution that the state is Jewish (and democratic), that this will change by one iota the problematic character of the status of the Arab minority, or draw it closer to the state's basic values?
It is perfectly clear that raising the issue in the form of a constitutional discussion of principles will only widen the gaps, sharpen the positions and encourage the extremists on both sides. What, exactly, will such a debate add to Israel?
After all, the reason that no constitution has been enacted is precisely the inability to reach agreement on these issues of principle. Nowadays, it is difficult to imagine a discussion of a constitution without someone from the right or left, or from both sides , wanting to include in it the demarcation of the state's borders. Once that issue is raised, there will be no way to ignore it, as ignoring it also means deciding it.
At a time when the political constellation and the public are deeply at odds on this question, and in the midst of negotiations with the Palestinians, it is clear that it will be impossible to decide the issue in conjunction with a constitutional debate.
There are some who maintain that a constitution is needed in order to anchor the rights of the citizen in a formative basic document. The fact is, though, that civil rights in Israel are enshrined quite impressively in several Basic Laws and in the Anglo-Saxon code Israel inherited from the British judicial system (habeas corpus, order nisi and so forth). Of course, Israel is far from perfect on this score, but there are few countries that are as strict about civil rights as Israel, even in wartime.
Suffice it to examine what happened in the United States after 9/11 or look at the British laws of administrative detention to see that we are in a far better situation than those well-ordered countries.
In the United States, with its Constitution more than 200 years old, hundreds of people have been incarcerated at Guantanamo for more than six years without any legal hearing or indictment, and many of them have not even met with a lawyer. For years, even their names were not made public.
The desire to enact a constitution is meritorious. But it is hard to see how this can be done in the absence of agreement on basic issues. On top of this, it is clear that the debate over the constitution will only hone the differences and radicalize positions. It will not produce the coveted consensus.
It would be best to drop this attempt. Neither benefit nor a constitution will come of it, but damage will be caused.
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