In the future, will the national anthem "Hatikva" include the line "nefesh Yisraeli homia" (the Israeli soul is aflutter) instead of "nefesh Yehudi homia" (the Jewish heart is aflutter)? It will if the Knesset accepts the proposal discussed last week in the Knesset Constitution, Law and Justice Committee, in the context of the sessions dealing with "a constitution by a broad consensus." Other proposals raised in the committee were to add a line to the anthem (which would mention non-Jews), or to compose another, more civil, anthem.
The discussion, like any committee discussion of the constitution, is preliminary, and there is a long way to go until the changes in the anthem are submitted for Knesset approval, if at all. Actually, last November the Knesset turned the words of the anthem into law, which means that any change in it requires an amendment in three readings. This is after 56 years during which the words of "Hatikva" were not protected by law.
The real surprise is that the person who led the discussion on the subject of changing the anthem is the chair of the committee, Michael Eitan, one of the hard-core members of the nationalist camp in the Likud. Although Eitan emphasized that he is not proposing practical solutions, afterwards he couldn't restrain himself. He said, for example that "if we add another line, so that even an Arab citizen will be able to say `the Jewish soul,' but will feel that his own soul is also included in the enterprise that belongs to all of us, we have to be proud of that if we succeed."
The chair of the Shinui faction, MK Reshef Cheyne, suggested: "We can say: `the Israeli soul is aflutter,' and that won't harm the song." Eitan pointed out that the public debate "will be about the identity of the State of Israel and not about the difficulty of getting used to a new version, if we come with a proposal to change the word `Jewish' to `Israeli.'"
According to Eitan, "It's difficult for me to say these things, I know what people will say to me about it, but I see it as part of the war to strengthen the State of Israel as a Jewish and democratic state.
"On this matter [of the anthem]," says Eitan, "I'm having second thoughts as a result of the constitution procedure. We now have to give the Jewish state a constitution that is based on the assumption that it serves non-Jews as well." Eitan explained that "if I'm an Arab - and I do want to stand at attention during the anthem, the moment I sing the words `the Jewish soul,' I get stuck for a moment. Let's take the example of a Druze brigade commander who has to sing the anthem, and to identify with it as well." Eitan says the significance of the change in "Hatikva" is that in the context of the constitution, "in one of the things we share, which is the anthem, we are also giving a place to those who are not Jews."
Incidentally, Eitan's second thoughts apparently do not relate only to the anthem. "Israel is now undergoing a tremendous process of soul-searching," he said. "Take me, take the Likud - I hear MK Uzi Landau at a meeting of the Likud faction saying, `I also support a compromise that will require the uprooting of settlements and territorial compromise,' I look at the decisions being taken by the Likud; gentlemen, this is a historic moment. There is a process of soul-searching taking place."
Prof. Ruth Gavison, who has recently been mentioned as a candidate for the Supreme Court and who participates regularly in the proceedings of the committee on the subject of the constitution, suggested: "We can add a neutral anthem. We can have both `Hatikva' and something neutral, too." This suggestion has also been made in the past by former state comptroller Miriam Ben Porat. In another session of the constitution committee, this suggestion was also supported by Yusuf Jabarin, a member of the Musawa Center for Arab Rights in Israel, who said that "the State of Israel can be a Jewish and democratic state even if there is another, civil anthem written for the Arab community."
MK Roni Brizon of Shinui is not a member of the committee and did not participate in the discussion, but he has a somewhat different suggestion: to add a stanza in Arabic to "Hatikva," with which Arab citizens will be able to identify and which they will be able to sing.
The chair of the coalition, MK Gideon Sa'ar, has an entirely different viewpoint. In reply to the question as to whether he is willing to compromise on the subject of the anthem, he replied at a committee meeting: "In a word: No. In two words: Absolutely not. I wouldn't make any change in `Hatikva.' It's compromising on the identity of the country."
Eitan's great efforts
The discussions being conducted by the Knesset Constitution, Law and Justice Committee on the subject of a constitution by consensus are one of the most interesting and serious processes being conducted in Israeli democracy. This is because even if, as expected, there won't be a constitution in the end, committee chair Michael Eitan has been investing particularly great efforts in the most recent sessions in an attempt to include the Arab community in the discussions, after 80 sessions in which there was mostly an intra-Jewish dialogue. He has even expressed a willingness to conduct sessions of the committee in Arab communities and to invite to these discussions the Supreme Arab Monitoring Committee. Eitan explains that the committee is collecting proposals for the constitution. "Among all these proposals, we also want to bring the proposal of the Hadash faction, of one Knesset member or another, of Musawa."
But the Arab community is not demonstrating any great enthusiasm for the process that will anchor the idea of the Jewish state in a constitution. Jafar Farah, the director of Musawa, suggested in one of the meetings that instead of a constitution, we should try "to create a civil convention that will recognize both sides, without coercion." Azmi Bishara (Balad), a member of the constitution committee, who is also far from enthusiastic about the constitutional process, sees a positive side to it as well. He said in the committee that "the constitution has spurred the Arab population to discuss issues that have been floating in the air all the time, but that we never bothered to formulate. If the constitution spurs these intellectuals, and the associations and organizations and MKs, to discuss among themselves what we want - that's already a good thing."
Another community that has serious reservations about the constitutional effort is the national religious public. Last week, the Tzomet Institute for technology and halakha held a conference of religious Zionist rabbis, as well as several experts on Jewish law, in order to formulate a fitting response to the constitutional danger. One reason for this conference was the request of National Religious Party chair Zevulun Orlev for a rabbinical opinion about the "constitution by consensus" proposal made by the Israel Democracy Institute, and about the Knesset discussions on the subject of the constitution.
In the summation that they published, the rabbis say that "the proposed bills, as they are being presented currently to the public, are not acceptable to us, because in principle and in their details, they undermine the concept of `the Jewish state.'" The rabbis had difficulty deciding whether to prepare a constitutional proposal of their own. In the end, it was decided to make do with a document of reply to the proposal of the Israel Democracy Institute. In this document they will define the Jewish state in the spirit of the values of religious Zionism, as well as proposing amendments to the institute's proposal. The constitutional procedure is therefore forcing the national religious public, like the Arab public, to clarify for itself quite a number of difficult questions.
Constitution without the High Court
One thing to which the rabbis will probably object is the statement to the effect that the constitution is based on the principles of the Israeli Declaration of Independence; they will also ask to limit the principle of equality. The constitution of the Israel Democracy Institute proposes that the High Court of Justice not be allowed to discuss certain topics in the realm of religion and state, such as Shabbat, conversion, marriage and divorce, et al. On the other hand, additional religious legislation will be prevented. This compromise is not satisfactory at least to some of the rabbis and experts. Rabbi Dr. Itamar Wahrhaftig, who teaches Jewish Law at the Bar-Ilan University school of law, is opposed to the sweeping prohibition against religious legislation.
No less - and perhaps much more - than the rabbis were concerned about the content of the constitution, they were preoccupied with the question of who will interpret it, and particularly, who will not do so. The decisions of the conference include the assertion: "We will not be able under any circumstances to accept a constitution whose interpretation will be in the hands of the High Court of Justice. It is imperative to form another authoritative body that will include people from all strata of the public and that will defend the constitution as it was accepted."
Prof. Berachyahu Lifshitz a teacher of Jewish law at the Hebrew University in Jerusalem explained why a constitution is preferable to the present situation. "We need a constitution. We need rules of the game, not like today, when the court decides." Shaar Yashuv Cohen, the rabbi of Haifa; Yaakov Ariel, the rabbi of Ramat Gan, and Rabbi Haim Druckman, head of the Or Etzion Yeshiva, all three of them leading national religious rabbis, said that "we cannot allow the High Court to be the body to decide on constitutional issues; that should be done by a public committee."
Ariel said that "the committee has to represent the public, and not the Knesset." Cohen said that there has to be "proper representation for the rabbis as well," on the committee. Daniel Shilo, the former rabbi of the settlement of Kedumim, said the committee must include "not necessarily legal experts, but more intellectuals. We must demand recognition of the fact that a legal expert is not necessarily a philosopher."
Until the rabbis finish preparing their document, they "request of anyone who is able to do so, to postpone the discussions of the constitution until our proposals are made and discussed with the proper attention." They also point out - after the Israel Democracy Institute has already completed its work and the Knesset constitution committee has already held 80 sessions on the subject of the constitution - that "there is a reason and a need to have legal experts who are observant Jews involved in the Knesset and in its committees during the discussions on this subject, for the benefit of the issue." That is what is meant by better late than never.
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