A Constitution Is Born

The draft of the preamble to Israel's constitution appears here in print, for the first time.

Frantic MKs who read Haaretz last Monday called the chairman of the Knesset's Constitution, Law and Justice Committee, Menachem Ben-Sasson, to find out if he really intends to hold 10 hours of weekly discussion on the constitution. So here's a clarification: It won't be 10 hours. It'll be 12 hours.

Ben-Sasson is hoping to hold these discussions with at least 10 MKs. To ensure that they do not get bored, the hearings on the constitution will be divided into three units of four hours per week: basic rights, Basic Laws, and amending existing Basic Laws.

Another advantage of this method: Even if the committee does not manage to present the state with a constitution in time for its 60th anniversary, as Prime Minister Ehud Olmert promised in his speech at the opening of the Knesset's winter session, it at least will be able to vote on a piece of the constitution. That, too, is a fairly festive occasion. Olmert now has two tracks to help him go down in history, the political track and the constitutional track; it is unclear which is more precipitous.

b The name of the state: the State of Israel.

The character of the state:

b The State of Israel is a Jewish and democratic state

b The State of Israel respects the human rights of all its residents

b The State of Israel shall enable all its residents to preserve their identity, language, religion and heritage in accordance with their ideology and pursuant to the laws of the state

(From the draft of the preamble to the constitution)

Since it began its term, the Knesset Constitution, Law and Justice Committee almost has completed a draft of the preamble to the constitution. The completed parts are appearing here in print for the first time. The committee worked mostly with three versions: the constitution proposed by the Israel Democracy Institute; the right-wing proposal submitted by the Institute for Zionist Strategy and the drafts by the Movement for Progressive Judaism's Israel Religious Action Center. The committee also invites citizens and organizations to submit suggestions.

Ben-Sasson knew that if he held votes on every section, the process would blow up in his face, right at the beginning. Therefore, instead of holding votes, he only checked positions. A section that had the support of an overwhelming majority was included in the draft. When two positions received significant support, Ben-Sasson included both. He plans to hold the votes in another few months, after the section on "basic rights" is completed.

Is there anything to argue over in the very trivial matters that appear under "the character of the state"? Apparently there is. Last Thursday, Israel Harel attacked Ben-Sasson for using the term "the Jewish state" instead of "the Jewish national state." Right-wing members of the Knesset Constitution, Law and Justice Committee also want separate clauses for the state of the Jewish people and a democratic state. The Jewish state, of course, will come first.

b The flag of the state is white with blue stripes near the edges and a blue Star of David in the middle

b The symbol of the state is a seven-branched menorah with olive branches to the sides and the word "Israel" beneath it

b The national anthem is "Hatikva"

The demonstrative absence of Arab MKs from the committee's hearings has prevented serious discussion of questions such as adding an anthem, or another stanza to "Hatikva," that would enable Arabs to identify with it. But Ben-Sasson intends to submit a proposal to change the symbol of the state so that the word Israel appears below the menorah, in both Hebrew and Arabic. In terms of language, the committee has set a hierarchy:

b Hebrew is the official language of the state. Arabic is an official language, as will be determined by law

Some on the right feel the words "official language" are too strong, and suggest stating instead, "The Arabic language will have a special status in Israel."

Israeli citizenship is granted to the following:

b Anyone born in Israel whose mother or father is an Israeli citizen and resident

b Anyone born outside of Israel whose mother of father is an Israeli citizen (alternate proposal: and resident) provided that the parent's citizenship was not obtained by virtue of this clause

b A Jew who immigrated to Israel by virtue of the Law of Return shall be eligible for Israeli citizenship in accordance with the terms and timetable determined by law

b Regulations on awarding of citizenship for other reasons and on waiving or revoking citizenship shall be determined by law

Attention should be paid to the fact that citizenship is not automatically granted to every immigrant, but "in accordance with the terms and timetable determined by law," such as after several years in Israel and passing a Hebrew test.

b The State of Israel shall encourage the ingathering of the exiles and Jewish settlement in the land

b Every Jew is entitled to immigrate to Israel (proposal for limiting this section: "provided that he declare allegiance")

b An immigrant is eligible to become a citizen in Israel by virtue of the Law of Return in accordance with the terms and timetable to be determined.

Former Supreme Court President Aharon Barak has said on more than one occasion that the Law of Return should be part of the constitution. But the prevailing trend in the committee is for the constitutional section on this to be very general, in order to leave out the question of "who is a Jew." The objective is to simultaneously present the Knesset with a new Law of Return, that omits the grandfather clause (allowing non-Jewish grandchildren of Jews to immigrate to Israel) but includes a clause enabling anyone who is a member of a Jewish community to immigrate, even if he is not halakhically Jewish.

b Shabbat and Jewish holidays are the days of rest in the State of Israel. Non-Jews retain the right to days of rest on Shabbat and their own holidays

Olmert left no room for misunderstanding, and made it clear that this is "an agreed-upon proposal for a constitution, and I stress agreed-upon." Because the Arab factions boycotted the discussions on the constitution (only MK Talab al-Sana of Ra'am-United Arab List participated in two sessions), one may conclude that this refers to proposals with Jewish content; MK Ahmad Tibi (Ra'am-UAL) interprets the clause "the State of Israel is a Jewish and democratic state" as "democratic to the Jews and Jewish to the Arabs. Why are the Arabs not defined as a national minority?" He concludes: "The constitution will not be by consensus, and we won't be at this celebration."

And here the question arises: Would defining the Arabs in the constitution as a national minority and defining national rights in areas such as culture and education bring the Arabs, or at least some of them, back to the celebration?

The director general of the Constitution by Consensus Association (an organization established by the Israel Democracy Institute), Amir Abramowitz, argues that on this subject, there is a large gap between Arab politicians and their constituents. A poll the organization conducted six months ago found that some 70 percent of the Arab public would agree to accept a constitution that would define Israel as a Jewish and democratic state and would treat all its citizens equally.

The real obstacle that has impeded a constitution for 60 years is not the Arabs, but the disagreements between the secular and the religious. If a decade ago it was clear that a constitution would mean a separation of religion and state, says Abramowitz, now the discourse is on a constitution the religious can live with. And why should the religious agree? In order to change the status quo, where the Supreme Court determines its own jurisdictions, by determining the Knesset's and the court's jurisdictions in advance.

"I'm in favor of setting down the rules of the game, but it should be clear that the game is played out in the Knesset," says MK Moshe Gafni of Degel Hatorah. "Even if it is by consensus, I'm a partner and there are chances," he says. What is necessary for a consensus? A detailed constitution that protects religious legislation, especially from the principle of equality. And the religion stipulates, for example, that women cannot serve as religious court judges and certain people cannot marry.

Ben-Sasson will propose to the religious the solution suggested by the Israel Democracy Institute: that certain religious laws be protected from High Court of Justice intervention. Regarding some issues of religion and state as well, it may be stipulated that the Knesset can override High Court decisions with a relatively small majority, 61 votes.

If the religious get so much, why should the secular left agree? One reason, says Abramowitz, is that it will stop the attack on the Supreme Court and halt the deterioration of its standing. Another reason is that the constitution would include "a full declaration of rights, including equality and a ban on religious discrimination, and freedom of expression and movement." Another possible reason is that at a time when there is so much talk about democracy being in danger, it is hard to imagine a better cure than a constitution.