The right constitution will heal the nation

A constitution is not a spin
By Israel Harel

At the opening of the winter session of the Knesset, the prime minister announced that the best gift the Knesset could give the country for its 60th year of independence was an agreed-upon proposal for a constitution. “And I stress – agreed upon.” And indeed, as he put it, “For 60 years, we have not had an agreed-upon constitution, but rather a patchwork of basic laws.”

And if there were a constitution, it is reasonable to assume that it would address a considerable part of the differences of opinion that are tearing the nation asunder:

– Core issues such as the identity and aims of the state;
– the rights of minorities;
– the obligation of the state as a Jewish state, to Jewish people who are not citizens (to act, for example, to save them in times of danger);
– allocating budgets and lands for Jewish settlement and promoting national-Zionist projects (which the High Court of Justice, in response to petitions from anti-Zionist bodies, rejects, as happened in the case of the Jewish National Fund);
– and of course, the structure of the judicial system, which today, since there is no constitution, has taken control of almost all systems of our lives.

Were there a constitution that would make clear – without any “buts”, without apology and without offering the possibility of eroding the right, the identity and the ownership that the Jewish people have over their sole national state – the nation’s determination to maintain a Jewish-Zionist state here in the way its visionaries and builders predicted, it is doubtful whether the Arab minority would reject – according to the documents published by its major institutions the past year – the existence of Israel as a Jewish state. The Jews’ doubts about the justice of their path and the feelings of guilt that have enveloped them and which find expression, inter alia, in the proposed constitution that is acceptable also to Ehud Olmert, are gates of hope for the Arab revolt.

A constitution is not merely a legal document. In most of the truly enlightened nations, it constitutes an identity card that expresses the basic values of the nation. Olmert’s slogan “an agreed-upon constitution” – which adopts the spin and content of the proposal from the Israel Democracy Institute – cannot be agreed upon so long as it is based mainly on the heritage of former Supreme Court president Aharon Barak and ignores the basic principles that were formulated over dozens of generations, including those since the rise of Zionism. It is important that enlightened values that were formulated in the world over the last few generations be added to the constitution, but it must always be remembered that it is not for these that the Jewish state was established, but rather in order to put to full use the unique values of the Jewish people.

About a year ago, the prime minister announced that, from his point of view, there was only one proposal for a constitution, that is the “agreed-upon” constitution of the IDI. If that is “the agreed-upon” constitution to which he is aiming, then it has the same value as the agreements between him and Mahmoud Abbas. Just as the latter will never agree to forego the right of return (and even if Olmert agrees to this, there is not and there will not be agreement to this in Israel), so a considerable number of Jewish Knesset members will not be able to support a constitution that does not include, as in the proposal supported by Olmert, the principle that “Israel is the national home of the Jewish people.” (Remarks opposing this paragraph, on the part of the representative of the IDI, and also the chairman of the Constitution, Law and Justice Committee of the Knesset, are recorded in the committee’s minutes).

The Israel Democracy Institute is opposed to making the Declaration of Independence part of the constitution and is interested that it serve only as its prologue. It is not necessary to be a legal expert (Aharon Barak has already made it clear in a precedent-setting ruling that the Declaration of Independence does not carry judicial weight) or a political psychologist in order to understand why the initiators of the “agreed-upon” constitution are refusing to include in the constitution, inter alia, these two core paragraphs. Does Olmert imagine that the majority of the secular Zionist left, and certainly of the religious Zionist public, will support an (“agreed-upon”) constitution from which are missing, quite intentionally, the Declaration of Independence or the core paragraph stating, “The State of Israel is the national home of the Jewish people”?

Olmert is opposed to the “patchwork” of basic laws. But the proposed constitution that he supports will eternalize these “patches of law” and make it possible for the High Court, this time via the constitution, to continue to behave like the moral, ideological and operative master of the state.

The state is indeed in need of a gift for its 60th birthday, and a constitution is indeed a worthy gift. But not the gift that is being cooked up by Olmert and his ideological guides.