Constituting Israel

JERUSALEM --A week ago, when the news went out that Ariel Sharon had been rushed to a Jerusalem hospital, after suffering a minor stroke, many Israelis probably felt their own hearts skip a beat.

Even after it became clear that the 77-year-old bull-or bulldozer, as Sharon is often called-would soon be back on his feet, journalists began to reflect openly upon the great uncertainty caused by the illness of the man who just weeks earlier had bolted his own rebellious, longtime political home, Likud. The polls say that Sharon's new party, Kadima, will win the election, now scheduled for March 28, but even supporters will admit that its diverse group of hastily assembled candidates seem to have little more in common than a desire to attach their political fates to Sharon.

Sharon's strength testifies to the weakness of the Israeli political system, wherein members of Israel's parliament, the Knesset, and the prime minister himself, are elected not directly but rather by virtue of their ranking on the list of their respective parties. Because no party has ever received a majority of votes in an election, every government in the country's history has been a coalition. Sharon's fell not only because key coalition partners abandoned him over the withdrawal from Gaza last August, but also because his own party was against him.

If Sharon's stroke had been more serious, the country, between governments, could well have been plunged into a constitutional crisis. That is, if it had a constitution.

When Israel came into existence as a state, in May 1948, its founders expected it to be a matter of years, if not months, before it adopted a constitution. Until then, its Declaration of Independence enumerated the basic principles upon which the state would stand, including equality of rights for all citizens, and ''freedom, justice, and peace as envisaged by the Prophets of Israel." It also anticipated the preparation of a constitution, and when it became clear that that wasn't happening, the Knesset resolved to enact a number of initial ''basic laws," which were meant to set out the workings of the fundamental institutions and principles of the state and to serve as the building blocks of the eventual document.

Nonetheless, 57 years and 11 basic laws later, Israel still lacks a constitution. Some would even say that the country's lack of a document of basic principles of government explains the political mess that it is in.

Nearly three-quarters of the Israeli public is in favor of a constitution, and a committee of the Knesset has spent the past three years holding hearings on the subject, preparing to draft its own version of one. But saying that Israelis desire a constitution is like saying that they would like to be at peace with their Palestinian neighbors: It doesn't begin to suggest the major constitutional issues that divide them.

The 20 percent of Israel's population who are Arabs view a constitution as an instrument to guarantee their equal rights both as individuals and as a national minority, whereas for Jewish nationalists, the document should define the way in which Israel is the homeland of the Jewish people. Orthodox Jews want a constitution to guarantee their continued monopoly over areas, like marriage and divorce, where religion and state overlap. But civil libertarians imagine a constitution that enshrines the individual freedoms that characterize most Western democracies.

At the same time, figures from across the political and religious spectrums want a constitution to change the electoral system-to make it easier, for example, for the government to implement the policies it was elected to carry out (it's been nearly 20 years since a government here served out its full four-year term)-and many would have a constitution define the limits of the powers of the country's hyperactive Supreme Court.

Talk to Deputy Housing Minister Avraham Ravitz, from the ultra-Orthodox United Torah Judaism party, and he'll tell you that the Jewish people already have a constitution, in the form of the Torah, Jewish law, which, he explains, ''taught us and all of humanity to respect the dignity of people, the idea of loving your neighbor like yourself, or that people need days of rest." Though he accepts that not all Israelis regard the Torah as their absolute guide, he says that the religious sector will not agree to a constitution that takes determining the standards of conversion to Judaism, and hence the basis for ''who is a Jew," away from Orthodox authorities.

Then talk to Rabbi Peretz Rodman, chairman of the public affairs committee of Israel's Masorti (Conservative) movement, who explains that his organization is unable to accept a draft constitution prepared by the Israel Democracy Institute, a nongovernmental organization, which would remove from the Supreme Court's jurisdiction cases connected to marriage, divorce, kashrut (dietary laws), and public Sabbath observance.

''What the IDI draft does," Rodman protests, ''is to make it impossible to appeal to the court for redress in matters of religious status that have been relegated to the Orthodox establishment." This issue is of particular concern to non-Orthodox rabbis like Rodman, because neither the state nor the Orthodox rabbinate have ever agreed to recognize their religious authority.

Daniel Polisar, president of the Shalem Center, a Jewish nationalist think tank in Jerusalem, which is also drafting a constitution, explains that aside from defining what it means for Israel to be a ''Jewish state"-the document should, he believes, enshrine the Law of Return, which grants Jews the right to automatic Israeli citizenship; elevate the status of the Hebrew language; and stress the state's connection to Jews around the world-a constitution must rebalance the relationships among the three branches of government. The legislature should be strengthened, Polisar contends, and the system of appointments to the Supreme Court should be ''democratized," by which he means that the committee that selects new justices should no longer be dominated by judges and lawyers. A recent article in Azure, the Shalem Center's quarterly journal, referred to Israel's high court as ''the court that packed itself."

The Shalem Center has been a leader of those who are opposed to the spirit of judicial activism that has characterized Aharon Barak's tenure as chief justice of Israel's Supreme Court. Last spring, for example, Barak's court declared that the state had to reroute parts of the West Bank security barrier because, in the court's eyes, it excessively cut off certain Palestinian communities from work, services, and the rest of the territories.

On the other end of the political spectrum from Polisar, civil libertarian Moshe Negbi, who teaches public and media law at the Hebrew University, says that the very essence of any constitution must be to protect the rights of individuals from the ''despotism of the majority," alluding to a common misperception here that democracy is simply majority rule. Negbi wouldn't want a constitution to limit judicial review by the Supreme Court, because he sees it as the ultimate shield against populist efforts to advance ideas that would chip away at the state's freedoms.

Hassan Jabareen, the director of Adalah-the Legal Center of Arab Minority Rights in Israel, says that this simply isn't the right time for Israel to be drafting a constitution. ''If you can't agree on your borders, how can you decide who a citizen is?" he asks. ''How can we have a constitution before the end of the occupation of the territories? What will be the status of East Jerusalem, of the Syrians living in the Golan Heights? These are things that determine who is a citizen of the state."

In principle, Jabareen is in favor of a constitution, and even suggests that on symbolic matters, issues like official languages or even the more substantial Law of (Jewish) Return, ''it's possible to find a compromise" between Arabs and Jews. But, he continues, ''things like the rights of women, or freedom of expression, or of stores to be open on Shabbat, these are matters that belong in a bill of rights, and we can't compromise on them."

. . .

The Israel Democracy Institute calls its draft a ''Constitution by Consensus," and views it as the most nonpartisan of several on the table. It is certainly the most well-funded effort, with the institute pushing its constitution with a multimillion dollar advertising and educational campaign, funded in large part by Home Depot cofounder Bernie Marcus, of Atlanta.

Institute president Arik Carmon says that he expects his organization's version to serve as ''the basis for what happens in the Knesset." Knesset member Eliezer ''Cheetah" Cohen, of the right-wing nationalist party Yisrael Beitenu, who is the head of the Knesset Constitution Lobby, says that Carmon can forget about it. The institute's draft interests him, he says, using a choice Hebrew phrase of contempt, ''as much as it does my grandmother." (Cohen's purported lack of interest may be connected to the fact that he prepared his own version of a constitution, and plans to present it to the next Knesset.)

A look at the institute's draft shows that it reached a ''consensus," if indeed that is what it has done, by sidestepping some of the touchiest of issues. Not only does it leave matters of religious status in the hands of the Orthodox establishment and deny the high court any right of judicial review on those matters, it also does nothing to change the way in which justices are selected, or suggest an alternative to the current system of electing Knesset members-by, for example, having some elected on a direct, regional basis. When I asked Carmon about the latter point, he explained that the electoral system must ''remain flexible," and any changes in it should be decided by regular laws, not the constitution.

But Israel has been in crisis for the past decade because of its electoral system. In 1995, in the hope of making the executive branch more stable, the country switched to a bifurcated vote, one for direct election of the prime minister, the other for Knesset party list. After the terms of Benjamin Netanyahu and Ehud Barak ended early, and disastrously, the country went back to a single vote in 2003, so that one chooses only a party, and the prime minister is generally the head of the largest party.

And yet, in every case that person has had to assemble a coalition of several parties in order to garner the support of a majority of members of the Knesset to keep his government afloat. Cabinet seats are divvied up among colleagues, who are often rivals, from the prime minister's own party, and from partner parties to the coalition. Sharon's answer to the collapse of his own coalition was to leave the Likud and set up Kadima, where he makes all the decisions.

Despite its three years of preliminary hearings on the subject, the Knesset's Constitution, Law and Justice Committee will not even have begun to assemble a draft before the March 28 election. So as not to have its work forgotten, however, the current committee has planned to sponsor a Constitution Day this Feb. 13, the official birthday of the legislature, and will be distributing copies of a number of draft constitutions that have been assembled over the years.

But Gidi Grinstein, head of the Re'ut Institute, a nonpartisan strategic-planning organization, stresses that since Israel already has ''an unwritten constitution," in the form of its basic laws, ''our urgent need is to change our system of governance." If the high court has assumed excessive power, he explains, ''it's because of the failure of the legislature to pass laws. There are issues that the court keeps returning to the Knesset, and that the latter refuses to deal with."

Most essential now, says Grinstein, is a reform of the electoral system ''that will generate stable tenures for more cohesive legislatures and executive." He proposes several changes to the basic laws: having the head of the largest party automatically become prime minister, without needing to assemble a coalition; requiring a special majority of the Knesset for new elections to be declared; and eliminating the law by which failure to pass the budget automatically triggers the fall of a government.

Because of the redistribution of political power expected in the upcoming election, Grinstein foresees a possibility in which two major parties share a majority of the seats in the Knesset, and can form a government without having to rely on a patchwork coalition. If they cooperate, ''there's almost no limit to the things they will be able to accomplish, beginning with electoral reform."

Maybe they can even write a constitution.

David B. Green is deputy editor of The Jerusalem Report magazine.