* A Hebrew translation of this paper was presented by the Israel Beiteinu party to the Knesset Law Committee in July 1999.

______________________________________________________________________________

 

Introduction

o show why Israel needsЧand desperately needsЧa constitution, it will be necessary to expose the fatal flaws inherent in her present form of government.а Before doing so, let us anticipate objections that any proposed constitution may arouse at this moment in IsraelТs history.

 

It may first be said that Israel is so faction-ridden that a constitution, however desirable, is utterly impractical.а The religious parties, or so it seems, will especially be opposed to a constitution since they identify the latter with ultra-secular attempts to separate religion and state.а Moreover, so imminent are the dangers confronting Israel that to place a constitution on the public agenda may be deemed a mischievous distraction.а Hence the burden of justifying, let alone of implementing, a constitution for the State of Israel in the present juncture of domestic and international affairs appears insuperable.а

 

If it can be shown, however, that IsraelТs political system is itself a fundamental cause of her internal crises and external dangers, it would logically follow that Israel will not overcome her precarious situation without drastically changing her system of government.а Hence I contend that a constitution comparable to the one proposed in this paperЧand it should appeal to religious as well as non-religious JewsЧis essential to IsraelТs salvation.а But first, let us understand why Israel has no constitution.

 

*а *а *

 

 

I.а The Unconstitutional Basis of IsraelТs Form of Government

A. The Failure of a Constituent Assembly

 

ontrary to a widespread prejudice, IsraelТs religious parties did not oppose a constitution when the State was formed in 1948.а IsraelТs Declaration of Independence, which prescribes a constitution, was signed by four rabbis.а IsraelТs Provisional Government arranged for the election of a Constituent Assembly to draft a constitution.а A committee composed of various party spokesmen was elected.а A draft constitution was submitted to the Committee by Dr. Leo Kohn.а The draft was supported by spokesmen of Agudat Israel, Mizrachi, and Ha-Poel MizrachiЧthe religious parties.а However, the committeeТs majority, representing Mapai and Mapam, the secular parties, rejected the proposed Constitution on two grounds.а

First, the draft provided that the President of the State shall be Jewish.а Secularists feared that such a provision would be deemed УracistФ by the international community, even though the Declaration repeatedly refers to Israel as a Jewish State.а

Second, the draft prescribed that the legislation of the State shall be based on the fundamental principles of Jewish law, which shall guide the courts in filling gaps in the existing British Mandatory law.а Opponents argued that there is no assurance that Jewish law provides a ready solution for various problems of the new state, and that the vast majority of lawyers and judges lack sufficient knowledge of Jewish law for answers to the problems that might arise.аа

Former Deputy President of the Supreme Court, Professor Menachem Alon, questions the validity of these arguments.аа The draft merely proposed recourse to Jewish law when there is a gap in existing law, Уwhich, in the nature of things, will probably occur in few cases, since the vast majority of legal questions are answered by the StateТs current law.Фаа Besides, Уrecourse to English law is not to a clear and explicit code, but to case law, which is voluminous, obscure, and scattered throughout different legal sources.а Moreover, access to these English-language sources is far from convenient for the overwhelming majority of Israeliа citizens, who have a right to know what the law of the State provides.а Even Israeli lawyers,Ф said Alon, Уexperience the same difficulties with English precedents.Фааа

So much for the reasons why Israel does not have a constitution.а We need only reiterate the fact that, contrary to common opinion, the religious parties were not initially adverse to a written constitution.а To be sure, opposition is now expressed by various religionists; but whether they would reject the constitution outlined below (and personally elucidated by its author) remains to be seen.

*а *а *

Not only did the Constituent Assembly fail to adopt a constitution, but it appointed itself as the first Knesset!а The Knesset proceeded to assume absolute power, at least in theory.а In fact, however, the Knesset delegated virtually unlimited power to the Government, i.e., the Cabinet.а The power of the Government is virtually unlimited precisely because the People of Israel have been arbitrarily deprived of a constitutional foundation for limited government.а The People were never properly consulted about IsraelТs system of government.а They have tacitly consented to that system because they believeЧand they have been educated to believeЧthat the present system is democratic.а Such a belief has no solid theoretical or empirical foundation.

 

B.     Popular Sovereignty?

 

emocracy literally means the rule of the people or popular sovereignty, which reduces to the rule of the majority.а Majority rule requires political equality, more precisely, universal suffrage or one adult/one vote.а Universal suffrage exists in Israel.а Democracy also requires political freedom, the freedom to form political parties and compete in periodic elections for the control of the Government.а Such freedom exists in Israel.а I will nonetheless argue that despite universal suffrage, popular sovereignty does not exist in Israel, except on one day in roughly four years.аа I will also show how the lack of popular sovereignty renders Israeli politicians less capable of resisting international pressure.а Indeed, we shall see that how Israeli politicians react to such pressure depends not only on their own moral and intellectual character but also on the character of IsraelТs political institutions, a factor ignored by other commentators.

ааааааааааа Former Prime Minister Benjamin NetanyahuТs Cabinet consisted of no less than seven parties each with its own agenda.а Even a wiser and more dauntless person would have found it virtually impossible to pursue a coherent, resolute, and long-term national strategy.а As is well-known, this medley of parties, which renders the Cabinet a collection of fiefdoms, is the result of IsraelТs parliamentary system of proportional representation based on an electoral threshold of a mere 1.5 percent.а Only the Netherlands (a homogeneous country) has a lower threshold among some fifty countries using proportional representation.а What is more, Israel is the only reputed democracy that employs fixed party lists without constituency elections.а This is a formula for party dictatorship.а Party dictatorship not only contradicts popular sovereignty, but, strange as it may seem, it diminishes IsraelТs independence vis-à-vis her patron, the United States.а Let me explain.

ааааааааааа Assume that the leader of party A is IsraelТs Prime Minister, and that the leaders of parties, B, C, D and E are his Cabinet MinistersЧa typical Israeli concoction.а Because a majority of the KnessetТs members (MKs) owe their position and perquisites to these parties and not to the votes of constituents, they cannot function as judges of their GovernmentТs policies as do legislators in all democratic countries.а If an MK were to vote against his Government he would be committing political suicide.а This will inhibit him from resisting policies he deems unwise or dangerous.а He will then be less able to resist the same foreign pressure prompting his Government to pursue that questionable policy.а Meanwhile, because the voters have no individual Knesset Member accountable to them, whom they could then expect to uphold their basic interestsЧwhich may well be opposed to the GovernmentТs foreign policyЧthey themselves, the voters, will become unduly sensitive and more subservient to Уworld opinion.Ф

Therein is a hitherto unnoticed reason why Israeli governmentsЧno longer in the youth ofа ZionismЧhave yielded to the American State DepartmentТs post-Six Day War policy of Уterritory for peace,Ф contrary to the deepest convictions of a large majority of IsraelТs Jewish population.а If this majorityТs convictions on the territorial issue have since been eroded, a basic cause is this: they lack Knesset representatives of their own choosing.

ааааааааааа Let us recall the 1992 Knesset electionsЧthe elections that brought Labor to power.а Labor, attentive to overwhelming public opinion reported by professional polls, promised No withdrawal from the Golan, No negotiation with the PLO, No Palestinian state, and No negotiation over Jerusalem.аа These were not campaign promises about taxes and health care but about the very borders and capital of the State.а Once in office, however, the Government literally scorned public opinion.а As for the Knesset, it was controlled by the ruling party coalition in the Cabinet.

ааааааааааа Again, shortly after NetanyahuТs election in 1996, he boasted that Уno oneФ expected him to meet with Yasir Arafat, that Уno oneФ expected him to use Oslo as the basis of the peace process, and that Уno oneФ expected him to withdraw from Hebron.а This clearly implies that those who voted for Netanyahu in 1996 opposed such a policy, which means he too disregarded the convictions of those who made him Prime Minister.а As for the Knesset, it remains a cipher.а And so, as indicated earlier, popular sovereignty in Israel is king only for a day.

Strange as it may seem, nothing so weakens this country as the absence of a Legislature independent of the Executive, one whose members are directly accountable to the votersа (and not simply to a party or its central committee).а Precisely because a Prime Minister may lack the courage to resist foreign pressure, an independent legislature is necessary to compensate for his frailty either by the threat of decisive opposition to his foreign policy, or, conversely, by rallying to his support to neutralize intimidation from abroad.

It follows that a weak Legislature does not necessarily make for a strong Executive in foreign affairs, and IsraelТs legislature is pathetically weak.а Although the Knesset can topple the Government by a vote of no confidence, the only time such a thing has happened was in 1990, and then only as a result of party defections in a Government of National Unity!а Such is the unchecked power of the Executive in relation to the people and the Knesset, that it can conclude agreements with foreign states and even with criminal organizations without public debate and even without serious Knesset debate.а Whatever one thinks of the September 1993 Oslo or Israel-PLO Agreement, the fact remains that it was ratified on the White House lawn.а Indeed, unknown to the Knesset, the Rabin-Peres Government secretly agreed to yield eastern Jerusalem to the PLO contrary to various Israeli statutes, including the 1980 Basic Law:а Jerusalem, Capital of Israel.а а

Meanwhile, the Supreme CourtТs power to adjudicate suits challenging the legality of Government decisions on such potent foreign policy issues has no established constitutional basis.а On the other hand, the impotence of the Knesset has encouraged the Supreme Court to assume the powers of a super legislature, especially on religious issues.а The CourtТs Уjudicial activismФ has aroused criticism not only from of the religious, but from former Supreme Court judges as well as from politicians and academics across the political spectrum.а The lack of a constitution with effective institutional checks and balances in Israel renders the Court as well as the Government above the law.а But even members of IsraelТs inept Knesset violate the law with impunity, and thus make a mockery of democracy.а Suffice to mention Arab MKs who not only consort with IsraelТs enemiesЧterrorist states and various terrorist organizationsЧbut openly violate the law which prohibits any party that negates the Jewish character of the State.

ааааааааааа The rule of law, a basic principle of democracy, hardly exists in Israel, and precisely because the country lacks a constitution. аA constitution, understood as a fundamental law superior to, and more enduring than, statute law, is a precondition of the rule of law.а To be sure, no constitutionЧnot even the TorahЧcan guarantee honest government and ensure its efficient operation.а Nevertheless, a well-designed constitution can increase the probability of obtaining such a government.а It can therefore facilitate the development of consistent, comprehensive, and resolute national policies and thus contribute to national unity and security as well as national dignity and prosperity.

Every sensible and unbiased Jew, whether religious or not, will support such a constitution, provided he is fairly confident that it will help remedy the manifest flaws of IsraelТs existing form of government, while safeguarding his personal, civil, economic, and religious rights.а No well-informed and civic minded Jew can be happy with a parliamentary system which makes Israel the only one of 75 democracies that lacks constituency elections!аа Surely he would prefer to vote for an individual candidate familiar and accountable to him, rather than vote for an obscure, self-perpetuating oligarchy, i.e., some party list that gives politicians safe seats and enables them to ignore Jewish public opinion with impunity.а Who can be content with a parliamentary system whose 1.5 percent electoral threshold spawns political parties like weeds, fills the Knesset with party-hopping job seekers, fosters egotism and venality, fragments and paralyzes the Government, sullies public life and undermines any sense of national purpose?а True, a constitution cannot of itself make men virtuous, but it can mitigate rather than magnify their vices.а

ааааааааааа Let us be candid:а Given the concentration yet fragmentation of power in the Cabinet, Israel exemplifies, de jure, a dysfunctional oligarchyЧand I have not mentioned the governmentТs ownership of most of the countryТs resources.а This oligarchy can metamorphose into a de facto dictatorship when the Labor Party gains control of the government, since Labor has always dominated the economy and mass media as well as the countryТs educational and cultural institutions.а

This overwhelming concentration of political-economic and opinion-making power in the hands of IsraelТs interlocking elites offers no redress and no outlet for rational and effective dissent or opposition between elections.а Hence it is hardly an exaggeration to conclude that every four years or so the people of Israel exercise their political freedom and then relapse into political servitude.

ааааааааааа Indeed, Israel has the worst of two worlds.а Her people not only live under an oligarchy, but the oligarchy is dignified and thereby fortified by the veneer of democracy, which renders the people of Israel all the more powerless.а Moreover, because Israel is perceived as a democracy, her Government is expected by the democratic world to make gratuitous concessions to Arab despots, indeed, to take Уrisks for peaceФ which no democratic government would dare ask of its people.а IsraelТs form of government is a disaster.а

 

C.а Democracy and Judaism

 

f it be said democracy is inconsistent with Judaism, no less than Spinoza would agree.а Spinoza, the father of liberal democracy and of modern biblical criticism, deemed the Torah anything but democratic.а Yet distinguished rabbis and jurists contend that the two are consistent.а To resolve this contradiction, I shall distinguish between two types of democracy, УcontemporaryФ and УclassicalФ democracy.

Democracy has two basic principles, freedom and equality.а Whereas freedom, in contemporary democracy, means Уliving as you like,Ф equality legitimates all Уlife-styles.Фа This is why moral equivalence and hedonism now permeate democratic societies.а Hence one may ask:а УWhat is there about democratic freedom that would prompt youth to restrain their passions, to be kind, honest, and just?а What is there about democratic equality that would prompt a person to defer to wisdom or show respect for teachers or parents?Фа

In contrast, classical democracy derives freedom and equality from the TorahТs conception of manТs creation in the image of God, which provides freedom and equality with ethical and rational constraints.а Recall the American Declaration of Independence.а Since the Declaration proclaims Уall men are created equal,Ф and refers to God as the УSupreme Judge,Ф it follows that all are obligated to obey the laws of their Creator (say the Seven Noahide Laws of Morality).а Admittedly, the Declaration emphasizes Уrights,Ф whereas the Torah emphasizes Уobligations.Фа Although the two are correlativeЧyour rights are my obligations, and vice-versaЧrights connote Уtaking,Ф while obligations denote Уgiving.Фаа Still, if freedom is linked to obligation, and if equality is construed as an elevating and not a leveling principle, classical democracy can be assimilated to Judaism.а

Turning to IsraelТs Declaration of Independence, there the terms Уpolitical equalityФ and УfreedomФ must be understood contextually.а By acknowledging IsraelТs raison dТêtre as a Jewish State, such that its being УJewishФ is the StateТs paramount principle, the Уpolitical equalityФ mentioned in the Declaration must then be construed not as an absoluteЧthe tendency of contemporary democracyЧbut as a logically subordinate principle.а Consider, too, the DeclarationТs avowal that the Jewish State will be based on Уfreedom Е as envisioned by the prophets of Israel.Фа Any intelligent and honest person, even if not religious, will admit that the prophetsТ understanding of freedom differs from the normless freedom of contemporary democracy.а For the prophets, only those who obey the laws of God are truly free.а If we take the prophets seriouslyЧrecall how they admonish kings and denounce immoralityЧwe may learn how to elevate democracy and render it compatible with a Jewish constitution.

II.а Designing Constitutions

1st.         Preliminary Considerations

ny constitution that separates religion and state is rooted in the Christian doctrine, УRender unto Caesar the things that are Caesars and unto God the things that are GodТs.Фа This doctrine severed Christianity from nationality and eventually made religion a private matterн.а The same doctrine influenced the First Amendment of the American Constitution, which declares, УCongress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof ЕФа This clause is now misunderstood.аа It was intended not to prevent Congress from enacting laws supportive of religion, but to prohibit Congress from establishing any state or national religion.аа AmericaТs founding fathers were not ultra-secularists.а They deemed support of religion essential to national morality.а In his УFarewell Address,Ф George Washington declared:а УOf all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supportsЕ. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in the exclusion of religious principle.Фа

Inasmuch as the Уestablishment clauseФ of the First Amendment mandated institutional separation of religion and state, and not the separation of the state from religious values, a constitution may be designed for the Jewish State of Israel without severing public law from Jewish values.а

For example, a constitution can prescribe a legislature without specifying the content of any law which the legislature may enact.а A constitution, therefore, need not affect the scope of legislative power presently exercised by IsraelТs Knesset.а Also, a constitution can be silent about, or empower the legislature to prescribeЧas has the KnessetЧvarious systems of jurisprudence, Jewish and non-Jewish, leaving the judiciary to decide which is the most appropriate in a given case.аа

On the other hand, and as we shall propose, a constitution can explicitly acknowledge IsraelТs raison dТêtre as a Jewish State, as stipulated in its Declaration of Independence.а By designating the State as УJewish,Ф that designation becomes the stateТs paramount principle, in relation to which any other principle may be limited lest it lead to the negation of the StateТs Jewish character.а As noted above, Israeli law prohibits any party that negates the Jewish character of the State.а This law obviously limits the principle of political equality prescribed in the Declaration of Independence, a logical as well as necessary limitation given the StateТs raison dТêtre.

 

Finally, a constitution can be designed as an educational as well as a legal document.а Thus conceived, a constitution can render its prescribed system of government more comprehensible to laymen.а It can thus facilitate government by the consent of the governed, a principle of Jewish lawн.а If citizens are to influence the laws affecting their lives, they must have adequate knowledge of the general structure and purposes of the legislative, executive, and judicial branches of government, something a concise constitution (like the American) can provide for secular and religious students alike.а Such a constitution, more clearly and coherently than IsraelТs uncertain, uncoordinated, and intermittent Basic Laws, can delineate and interrelate the powers of government, define the basic rights and duties of citizens, prescribe criteria by which to remove corrupt public officials, and thereby promote public morality and the rule of law.

 

ааааааааааа Some religionists object to a constitution saying, УWe have a constitution, the Torah.Фа It may be argued, however, that few rabbinical leaders today are qualified to exercise the powers of government prescribed in the Torah, and fewer still command the recognition of most Jews in Israel.а With all due respect to IsraelТs learned rabbis, how many fulfill the extraordinary qualifications of the Sanhedrin?а The judges of that supreme body, according to the fourteenth book of MaimonidesТ Mishneh Torah, must not only be experts in the vast corpus of Jewish law, but well versed in many branches of science, including astronomy, mathematics, logic, anatomy, and medicine?аа All honor to IsraelТs halakhic authorities, but would investing them with the legislative as well as judicial powers of the Sanhedrin be acceptable to the majority of IsraelТs Jewish populationЧas it must be according to Jewish law?аа Moreover, on what prominent Jew would the people of Israel be willing to bestow the executive power and life tenure of a king?а And where are the prophets who, like those of old, admonished kings who strayed from the high standards of Jewish law?а

Those who now shun a constitution in the name of the TorahТs system of governance unwittingly elevate the present generation as if it had risen to the heights of the Torah!а Hence they fail to see that a well-designed constitution may bring not only secular but many religious (!) Jews closer to the Torah without derogating from the TorahТs ultimate authority.

ааааааааааа In any event, a Jewish Constitution requires institutions that can preserve the Jewish character of the State as well as office-holders who are not only loyal to the State, but knowledgeable about Jewish history, beliefs, and values.а Such qualifications guided those who designed the Constitution of the Republic of Ireland.а To preserve their peopleТs cultural heritage, they established a bicameral parliament whose upper house, the Senate, consists of 60 members, 49 of whom are elected from five panels of candidates having knowledge and practical experience in the major sectors of public life, the first being УNational Language and Culture, Literature, Art, Education and such professional interests as may be defined by law for the purpose of this panel.Фа

Surely a Jewish Constitution should do no less.а But first, let us consider its general structure and principles.

ааааааааааа

B.а A Presidential-Parliamentary System

 

sraelТs present system of coalition cabinet government yields a plural and therefore inept Executive.а If only because of this countryТs precarious situation in the Middle East, a well-designed constitution will prescribe unity in the Executive by means of a Presidential form of government in which members of the Cabinet are freely chosen by the President and share his basic convictions.а

The Parliament should be bicameral.а While the function of law-making will be assigned to the upper branch, the УSenate,Ф the function of administrative scrutiny will be assigned to the lower branch, the УChamber of Deputies.Фа To anticipate objections to a second branch of Parliament without law-making power, let us compare it with the existing Knesset.

We have seen that the Knesset, in practice, it is little more than a rubber-stamp for the Cabinet.а It does not legislate so much as affirm legislation initiated by the coalition of party leaders heading the cabinet ministries.а Subservient to the Cabinet, the Knesset is incapable of exercising the important function of administrative oversightЧwhich is why corruption in government is so widespread in Israel.

Second, whereas members of the Knesset are utterly dependent on their parties, members of the proposed Chamber of Deputies will be accountable to their constituents. Deputies will have a base of independent power, while constituents will have their own representatives.а Since Deputies will be excluded from the Cabinet, they will not be deterred from scrutinizing the bureaucracy to see whether the laws are being faithfully and efficiently administered.а This will minimize corruption.

 

 

III.а A Draft Constitution

 

A.а The Preamble

 

[It would be perverse and ignominious that the People who gave mankind ethical monotheism should omit reference to God in the Preamble of its Constitution when God is mentioned in various constitutions of the democratic world.а Hence the following is suggested.]

 

e the People of Israel, grateful to God for preserving us as a Nation and for returning us to the Land of our Fathers, mindful of our sacred responsibility to Mankind as the Torah-bearing Nation, dedicated to Truth, Justice, and Peace, do solemnly establish this Constitution.а Accordingly, nothing in this Constitution is to be construed as derogating from the Wisdom of our Prophets and Sages.а To the contrary, this Constitution is intended to preserve the Jewish heritage and to hasten the day when Israel will present the example of a Nation in which Freedom dwells with Righteousness, Equality with Excellence, Wealth with Beauty, the here and now with Love of the Eternal.

 

 

B.а Institutions of Government

The Senate

 

1. The Senate shall be composed of [ ] members having a six-year tenure.аа One-third will be chosen every second year.

2.а To be eligible for membership in the Senate, a person must have knowledge of` the Hebrew Bible, Jewish history and customs, and Jewish literature, which knowledge must be certified by secular and/or religious institutions of learning prescribed by law.

3.а For the purpose of electing Senators, the country shall be divided into regions.а The number of regions shall be prescribed by law.а The method of choosing Senators will be based on the open [as opposed to the present closed] list PR system.[1]

4. The electoral threshold shall be prescribed by law, but must be no less than five percent.

5.а A majority of the members of the Senate may, by a petition addressed to the President, request the President to decline to sign and promulgate as a law any Bill (other than those affecting defense and appropriations) on the ground that it contains a provision of such national importance that the will of the people thereon ought to be ascertained by a national referendum.

6.а No treaty or agreement with any foreign power or entity shall become law prior to twenty-one days after its submission to the Senate.а One-third of the SenateТs membership can prevent any treaty or agreement with a foreign power from becoming law immediately, by setting it aside until the next senatorial election.а Such a pending bill comes into effect only if the new Senate, too, adopts it without changes after the election.

7.а The Senate shall have the power to declare war, provide for the common defense, and make all laws which shall be necessary and proper to promote the welfare and dignity of the State of Israel.

The Chamber of Deputiesаааааа

 

1.а The Chamber of Deputies shall consist of [а ] members having a tenure of four years.а One-half shall be chosen every two years.аа

2.а Deputes will be chosen in single-member electoral districts.[2]

3.а The Chamber of Deputies will perform the function of administrative oversight.а Excepting classified security matters, it will inspect the various the ministries, the army, and every institution or enterprise in which a State authority participates, whether managerially or financially.а Inspection shall include accountancy, legality, and appropriateness of the practices examined.

ааааааааааа 4. The Chamber of Deputies will conduct public hearings, investigate public complaints regarding the State administration, and suggest measures to remedy any administrative shortcomings and abuses.а [The ChamberТs investigatory powers render it a formidable body, as would be appreciated by those familiar with the power wielded by any investigating committee of the American Congress.]

ааааааааааа 5. The Chamber of Deputies may recommend legislation to the Senate, which the Senate may amend or reject as it sees fit.а But if such recommendations are enacted into law, their juridical authority will be derived from the action of the Senate.

аааа

The President

 

1.а The Executive power shall be vested in a President.а The President shall hold office for four years, and, together with a Vice-President chosen for the same term, shall be chosen as follows:аааааа

ааааааааааа (a) Forty days prior to the prescribed date for national elections, the Senate shall convene to nominate at least two presidential candidates.а Any group of 20 or more Senators may nominate a presidential (and vice-presidential) candidate.

(b) The names of the presidential candidates (and their respective vice-presidential candidates) shall be placed on a national ballot.а The candidate receiving a majority of the votes cast shall be President.а If no candidate receives a majority, the two receiving the highest number of votes shall compete in a run-off election.

2.а To retain the services of a wise and experienced President, and to avoid the phenomenon of a Уlame-duckФ President, he will be indefinitely eligible for re-election.а [This accords with the democratic principle of governmentа by the consent of the governed.]

ааааааааааа 3. The President shall recommend legislation to the Senate, have the power, with the consent of the Senate, to make treaties, be commander-in-chief of the Israel Defense Forces, and be responsible for the administration of the laws.

4. The President shall nominate the members of his Cabinet.а The names shall be submitted to the Senate for confirmation by a majority vote of the plenum.

5.а The President shall nominate the Judges of the Supreme Court.а The names shall be submitted to the Senate and will require confirmation by a three-fifts vote of the plenum.

6.а The President will be subject to impeachment for malfeasance of office by a two-thirds vote of a Senate plenum.

7.а The Vice-President shall preside over the Senate and vote only in the event of a tie.

The Judiciary

 

1.а The judicial power shall be vested in a nine-member Supreme Court and in such inferior courts which the Senate may from time to time establish.

2.а The membership of the Supreme Court will include at least three professorial and three rabbinical experts in Jewish law, all of whom, however, must be knowledgeable of secular law.

ааааааааааа 3.а The Supreme Court shall be the final interpreter of the Constitution, except as otherwise provided by this Constitution.а However, any law nullified by the Court will be submitted to a popular referendum.

4.а Among the diverse systems of law operative in Israel, Jewish law shall be Уfirst among equalsФ in every case where an Israeli statute is ambiguous or uncertain, except only where the Israeli statute explicitly differs from Jewish law.а [This conforms to the Foundations of Law Act of 1980, which provided:а УWhere a Court finds that a legal issue requiring decision cannot be resolved by reference to legislation or judicial precedent, or by analogy, it shall reach its decision in the light of the principles of freedom, justice, equity, and peace of the Jewish heritage.Ф]а

а5.а Questions of personal status (e.g. marriage, divorce, and conversion) shall be decided solely by Rabbinical Courts.

C.а Amendments

mendments to the Constitution shall require the approval of two-thirds of a Senate plenum followed by a popular referendum requiring a two-thirds vote for confirmation.

D.а Other Constitutional Provisions

ааааааааааа

1. All elected officials and civil servants shall duly affirm IsraelТs paramount governing principle as a Jewish State

2. No person holding office under the authority of Israel shall, during his tenure, be eligible for any other public office, unless otherwise specified in this Constitution.а Nor shall he be a member of, or receive any emolument from, any profit-making enterprise, or appoint any personnel employed therein.

ааааааааааа 3.а Election campaigns shall be confined to thirty days and be financed solely by public funds.а Per capita expenditures for such campaigns will not exceed that of other democracies.а Any expenditures that exceed the statutory limitations will not be financed by subsequent legislative appropriations.

ааааааааааа 4.а No person shall vote in any national election unless he has been a resident of Israel for two years.

ааааааааааа

E.аа A Constitutional Bill of Rights

 

1.а The Land of Israel, of which the State is only the custodian, belongs exclusively and eternally to the Jewish People.а Hence, except for public purposes defined by law, the State shall foster private Jewish ownership and development of the Land of Israel.

2.а Force majeure aside, no land under IsraelТs sovereignty may be surrendered to any foreign power or entity.аааа

ааааааааааа 3.а No law of the Senate, and no decision of the Supreme Court, shall be promulgated without due respect for the abiding beliefs and prevailing practices of the Jewish People.а

4. The right of workers to strike is inviolable, except to the extent that it deprives the community of its right to essential services.

5.а No citizen of Israel living abroad shall be denied the right to vote in elections for which he is qualified.а

6.а Citizens and residents of Israel will be guaranteed freedom of religion and freedom of speech and press.ааа Citizens and residents of Israel shall have the right to establish their own religious and educational institutions, provided these are consistent with loyalty to the Jewish State.

7.а No citizen or resident of Israel shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or due process of law.

8.а In all criminal prosecutions the accused shall enjoy the right to counsel, to a speedy and public trial, to be informed of the accusation for which he is been charged; to be confronted by witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

9.а The right of citizens and residents of Israel to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

10.а The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the Jewish People or affirmed by the Torah respecting Jews and non-Jews.

IV.а Conclusions

 

he above constitutional provisions are tentative and by no means complete.а The modes of constituting the various branches of government will have to be further elaborated, as will their respective powers and procedures.а Nevertheless, this proposed Constitution would:а (1) Enhance IsraelТs dignity; (2) facilitate the wise formulation and execution of national policies; (3) elevate the moral and intellectual character of Israeli politics; (4) enable the Government to negotiate more effectively with foreign powers; and (5) promote Jewish unity and Jewish national pride.

 

No Constitution can be viable unless it is in harmony with the basic beliefs and practices of the people for whom it is intended.а Fortunately, the likelihood of popular approval of this Constitution may be adduced from surveys of public opinion.а

 

A 1993 study indicates that 55 percent of IsraelТs Jewish population believes in the divine origin of the Torah, that 25 percent are observant, and that 55 percent are traditional.а (According to a May 1997 report, during the previous six years, more than 200,000 Israelis became fully observant, and some 130,000 said they had changed from a secular to a traditional orientation.)а Also, of the 20 percent that identify themselves as Уsecularists,Ф 75 percent keep many Jewish customs if only for family or nationalistic reasons.а Unsurprisingly, of the 120 members of the Fifteenth Knesset, no less than thirty are Orthodox Jews.а

 

Most secularists acknowledge the obvious fact that Israel cannot remain a Jewish State if its laws as well as its system of education are severed from Judaism.а On the other hand, in reaction to the ultra-orthodox, ultra-secularists wish to separate religion from the State, but without being fully aware of the beneficial Jewish laws that have been incorporated into IsraelТs legal system (e.g., the Wage Delay Prohibition Law, the Severance Pay Law, the Prohibition of Defamation Law, and the Right to Privacy Law).а

 

 

 

 

 

 

Actually, just as there is ignorance about Jewish law among many secularists, so there is ignorance about constitutions among many religionists.

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If Israel is to survive and prosper, Jews will have display toward each other greater kindliness and humility.аа Surely the proposed Constitution would greatly facilitate this happier state of affairs.а Without minimizing the obstacles to this Constitution, let us bear in mind these words of a Jewish sage:

 

аУAsk not if a thing is possible; ask only if it is necessary.Ф

 

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