The constitutional revolution.
1. Is a good constitution in Israel possible?
A. Is a hard constitution needed in Israel? As the fear of misusing the power of the law grows, there's more need for hard ruling that will give fundamental principals stability and protection from the legislator. In Israel there are two big minorities. Non-Jews (mostly Arabs) make up about 18% of the population, and orthodox Jews - about 20%. The poorest and weakest population groups in Israel are the Arabs and the orthodox Jews. Today, Israel is defined a Jewish state in its Fundamental Laws - which causes tension with its non-Jew inhabitants. Their feeling of equality and belonging is questionable, this being intensified considering the political situation between Israel and neighboring Arab states. Furthermore, the Arab minority is considered a security danger, causes fear of intermarriage and assimilation, and is generally considered a real threat by the majority. It is therefore important to defend them from the legislation of the majority. Within Jewish population there is a vast majority for a Jewish state, although its definition is controversial. Some see a Jewish state as a Jewish-law state, and some talk about the Zionist-national movement. This is where orthodox-secular tension comes in as the orthodox are afraid of discrimination, and the secular group is afraid of religion forcing. It should be noted that ultra-orthodox groups don't accept democratic rule and live by religious norms only. In a state with this kind of background, a constitution deciding the character of the state and the division of power within it seems obviously needed. It is needed both for the structure of participating in political decisions and for the human rights of individuals and minorities. This kind of constitution would allow the development of civil obligation and give the big minority groups a feeling of belonging and security.
B. Is there need for a total, rigid, supreme constitution? The need for a constitution doesn't motivate writing it. A constitution should be based on wide public support. In Israel there's no public pressure for establishing a constitution. The social gaps have caused the system to prefer not to accept a constitution. It is preferred to deal with internal Jewish affairs by negotiating and compromising, and deal with Arab affairs by one-sided decisions. The courts have developed protection of human rights as principals subject to interpretation. Note that religious parties have an obvious interest in not letting social or religious decisions be turned over to hard ruling. Therefore, chances of establishing a constitution seem slim. Another problem is that there have been past attempts to establish a constitution. These took a very long time thereby causing no political motivation to spend time on the issue again. Trying to write a constitution based on immediate needs wouldn't bring the desired outcome and wouldn't get public support. This can lead to two conclusions. The first is that there's no point attempting to establish a constitution. Instead, the laws regarding constitutional subjects should be improved. The second conclusion is that a constitution is very important for Israel and should therefore be attempted, with cooperation between legislators and courts.
Conversations about constitution favor the second option.
C. Is the constitution being established good? There's hope for the completion of a Fundamental Law about legislation that would secure all fundamental ruling and give it superiority, thus causing development of jurisdictional criticism. This would happen while generally abiding by all existing laws. The severe implications are that this move would cause securing of laws like personal status issues, emergency authorities of the military - which are mostly non democratic, and defending the religious status quo and the monopoly regarding marriage and divorce. Therefore hastening the process while blurrins not good. Furthermore, in today’s political situation, a total constitutional move would turn the courts into another legislating authority, that also decides in difficult public Israeli issues. This is an important consideration, since the public views the court system as neutral and professional. The constitution apparently being established isn't good in a few ways. It isn't unifying but splitting and divisive. It secures and fixates things that should maybe not be fixed. The rights and values being defended are not homogenous, causing internal distortions. The process of accepting the fundamental rule does not promise systematic consideration of the borders of democracy and decision by majority in Israel. Most of the judges in the 'Gal' verdict accepted the demand that there be no change of Fundamental Law unless by another Fundamental Law -essentially totally securing Fundamental Laws. This causes the following problems:
- Instead of filtering the Fundamental Laws so they include only principals, this demand will cause their expansion to include any later law potentially contradicting them.
- Some Fundamental Laws should not be secured. Securing all Fundamental Laws and not others creates anomaly between Fundamental laws and other constitutional Laws.
- Avoiding regularization of constitutional criticism will cause jurisdictional criticism derived straight from the Supremacy of the Law.
- Total securing gotten by majority is problematic both in terms of justification and in terms of feeling loyal and belonging.
Israel does need a hard constitution, whole and supreme, but it should be established through dialogue and widespread agreement. This is possible only if there is a motive to get to a constitutional agreement, namely the will of the community to improve itself. Jurisdictional criticism of a constitutional court is essential.