Imagine for a moment an alternate reality where the current Israel government under Benjamin Netanyahu is sincere in its stated desire to bolster democracy in Israel? What could they do with the pretty substantial majority they received in our recent elections?
If our alternate reality version of Netanyahu is sincere about bolstering Israeli democracy, his coalition would embark on an ambitious program to complete the work of creating a modern, Israeli constitution. They have the majority they need to pass these laws (as the coalition in our reality have demonstrated), and could take this rare opportunity to establish a remarkable legacy in Israel’s history that would strengthen it’s standing with our neighbours and international partner nations.
What could this constitutional framework look like? Well, it’s been a while since I was a functioning lawyer so here are a couple suggestions from a relative layperson with enough legal knowledge to seem informed.
A new constitutional order
As a starting point, this government could leverage it’s majority in the Knesset to convene a constitutional assembly comprising members of the opposition and stakeholders in our diverse Israeli society.
If the opposition refuses to participate, the government could present their proposals to the public in an honest and transparent format, and galvanise public support.
Imagine massive public protests against stakeholders who refuse to participate in this initiative to build a better constitutional order for Israel.
The Declaration of Independence
While the Declaration of Independence is not a binding part of our constitutional order, our new constitution could elevate this document to the status of a set of guiding principles for the interpretation of our laws, our rights, and the new constitution itself.
This document forms the basis of our nation, and expresses our values as a Jewish state. It is only appropriate that it become the foundation for our constitution and our guiding principles as a nation.
A Jewish state
A fundamental principle of our existence is that Israel is a Jewish state. This is the reason Israel exists, and this should be a fundamental principle of the constitution. This may necessitate that our rights be limited to a degree, and subordinated to this principle, and I don’t believe that this is an unreasonable limitation provided the limitation is what is strictly required to preserve the fundamental nature of the state.
Bill of Rights
Israel doesn’t really have a Bill of Rights. Fundamental rights are an essential protection of all citizens’ rights, especially minority rights. Some rights are mentioned in our Basic Laws, although we don’t have a set of entrenched rights that establish freedoms and rights.
These rights should be fundamental, and form the foundation of our Israeli society. A good starting point would probably the following:
- Right to dignity
- Right to equality
- Right to Life
- Right to privacy
- Freedom of religion, belief, and opinion
- Freedom of sexual identity
- Right to property and not to be unreasonably deprived of it
- Freedom of movement
- Freedom of expression (excluding incitement to do harm, and hate speech)
- Freedom of association
- Freedom to assemble, demonstrate, and petition
- Right to citizenship
- Right to free political activity
- Right to education
- Rights of children
- Right to access to information
- Freedom to practice a trade, engage in a profession and occupation
- Right to just administrative action
- Access to courts
- Rights of arrested, detained, and accused persons
- Right to health (including the rights to food and water)
- Rights of children
I drew most of these rights from the South African Bill of Rights that I believe is a great example of a modern bill of rights that can be a model for most democratic societies. It would be almost poetic if this were to inform an Israeli constitution given common and inaccurate comparisons between Israeli rule and Apartheid.
We have many tribes in Israel, and it is important to many communities that they be able to govern aspects of their daily lives. Perhaps a section of this constitution could address that through a section dealing with reserved areas that, in other countries’ constitutions, would be used to delineate between, say, state and national powers.
In our case, we could adapt this model to provide for areas that are reserved for various religious authorities, such as –
- Certification of compliance with religious dietary laws;
- A degree of freedom to choose the educational curriculum that is taught to children in those communities (this should be subject to a set of baseline requirements for literacy in a modern world that we live in);
- Rules regarding family life and marriage;
- Other rules regarding religious observance for members of the particular community.
These reserved areas should be protected where they relate to people who choose to be members of those communities, while still being governed by our fundamental rights.
These reserved areas shouldn’t be imposed on people who are not members of these communities. For example, secular Israelis and Israelis who don’t identify as heterosexual should be free to marry in Israel, and be granted the same rights that their religious compatriots enjoy. That this is still not permissible in Israel is outrageous in a modern democracy.
Independence of the courts
Our courts’ independence must be entrenched in the constitution as a fundamental facet of a functioning democracy. This must apply to how judges are appointed as well as the courts’ ability to review government decisions and legislation.
At the same time, the courts should be bound by the constitution and their powers limited to protecting and enforcing the rights, obligations, and freedoms entrenched in the constitution.
There are many models of a better system for appointing judges. Most of these are far better than our current government’s approach which is to essentially give the ruling coalition sole control over this process. I’m sure that sincere and responsible political leadership can develop an equitable judicial selection process that guarantees the independence of the courts, and ensures that our judges are representative of our diverse society. Just for clarity, this is the current system.
Political independence of our security services
Our security services, including the IDF and the Israel Police should be free to operate in the country’s defence, guided by professional leadership such as the Commissioner of Police and the Chief of General Staff of the IDF. Our ministers should be able to define our policy goals, and then entrust execution of those policy imperatives to the professionals.
Independence of the Attorney General and similar institutions
Our constitution should also provide for the independence of the Attorney General and other critical institutions such as the office of the State Comptroller. Much like the courts, these institutions are an important check on the government’s power and their authority should be similarly grounded in the principles of the constitution and the protection of our fundamental rights.
It is crucial that we have constitutionally empowered officials who can speak truth to power, and act as a reasonable constraint on the government’s power.
Amending the constitution
Currently, our Basic Laws can be amended by a simple majority of 61 seats in the Knesset. This doesn’t exactly provide for a meaningful constitutional order that can endure.
Instead, how about we require a two-thirds majority of Knesset votes to amend the constitution, except for amendments to the following that would require a three-quarters majority vote:
- the bill of rights,
- the independence of the courts and our other institutions like the Attorney General and State Comptroller,
- Israel’s character as a Jewish state; and
- the Declaration of Independence’s status as founding principles of our society and constitutional framework.
There is much more
This doesn’t cover important themes like the Knesset, the President of Israel (I believe the President can be an important unifying voice for all Israelis), our land, and more. The suggestions above are just a few things I have been thinking about lately.
A real legacy
Our alternate reality Netanyahu and coalition partners would see this as an invaluable opportunity to overhaul Israel’s constitutional framework, and build an enduring structure that protects what is important to Israelis, fundamental to our society, and that provides a robust set of protections for our democracy.
It shouldn’t cherry pick from other countries’ models without taking into account how those borrowed ideas should be adapted to best suit our Israeli culture, our Israeli diversity, and our ambitions of being a “light unto the nations”. Such a government has an opportunity to leave a lasting, powerful legacy.
So does our current government. Unfortunately they are more focused on personal gain, and leading us into a thinly veiled autocracy.
What do you think?