Foundation for Constitutional Democracy
Position Paper V.а
УA Critique of the Reichman ConstitutionФ
Introduction
The so-called Reichman Constitution
(hereinafter, the УConstitutionФ) was published in 1988 under the chairmanship
of Uriel Reichman, professor of constitutional law at Tel Aviv University.аа The drafting committee consisted of ten
academics, none of whom was a rabbi.а
The committee consulted more than twenty other academics on various
constitutional issues.а Included were
professors from prominent American universitiesЧbut again, not a single
rabbi.аа Yet the constitution in
question was intended for the Jewish State of Israel, a state in which 82% of
the population were then Jewish (the figure is now 79%), of which 25% are
Orthodox, while another 55% are traditional.а
Although
the Constitution is a well-crafted document, its 48-page length and
technicalities render it largely incomprehensible to ordinary citizens, for
whose benefit it was ostensibly designed.а
Unlike the Torah, it was written for lawyers, not laymen.а Not only is the Constitution a thoroughly
secular document, but it was made for IsraelТs ultra-secular Supreme Court and
clearly intended to augment and legitimize the CourtТs enormous de facto
power.а Nevertheless, despite its
fundamental ideological and institutional flaws, this constitution is
preferable to the IsraelТs existing system of government, which is leading to
the countryТs self-destruction.а What
follows are actual chapter headings used in the document and a brief critical
analysis.
I.
Basic
Tenets
1.а
One tenet affirms, УThe State of Israel is the state of the Jewish
people, founded on this peopleТs eternal right to sovereign existence in the
Land of Israel.Фа (The phrase Уeternal
right to sovereign existence in the Land of IsraelФ is illogical, unless that
eternal right is derived from God as proclaimed in the Torah.а Unsurprisingly, however, the Constitution
makes no reference to God, as do several European constitutions.)а
2.а A
second tenet declares, УThe State of Israel is a democratic state.а The source of all governmental authority is
the will of the citizens as expressed in free elections and referenda.Фа This tenet contradicts the previous
tenet.а It substitutes УcitizensФ for
the УJewish people.Фа In fact,
appearances to the contrary notwithstanding, this Constitution reduces Israel
to a Уstate of its citizensФ as opposed to a УJewish State.Фа (Contrast IsraelТs Declaration of Independence, which not only
proclaims Israel a Jewish State,
but does not contain the word Уdemocracy,Ф even though it prescribes political
quality for all inhabitants of the state).
B.а General Provisions
The
Constitution affirms the Law of Return, which accords to every Jew the right to
immigrate to Israel and to acquire citizenship. This is the only politically
significant, Jewish aspect of theа document,
apart from its affirmation of IsraelТs current Flag, Emblem (Menora),
and Anthem (УHatikvahФ).
III.
аHuman Rights
1.а Eight pages are devoted to 31 УHuman
Rights.Фа One can agree with almost all
of them.а Indeed, perhaps unknown to the
ConstitutionТs authors, most of the stated rights may be derived from Jewish
law!аа (For example, the right to
privacy, presumption of innocence, no self-incrimination, workers rights, and
many others.)а However, three things are
to be noted.аа
a.а
The multiplicity of rights is bound to lead to excessive litigation and
magnify the power of the Supreme Court vis-à-vis the legislative and
executive branches of government.а
Indeed, the Constitution will legitimate Уgovernment by the judiciaryФ
or the УCourtocracyФ called such by critics across the political spectrum.
b.а
Second, the ConstitutionТs excessive emphasis on Уpersonal freedomФ
stamps it as a permissive document.а It
would enable the Supreme Court to continue to nullify any laws affecting
homosexuality, same sex marriages, and other УlifestylesФ that undermine the
family, the soul of Judaism.а Contrast
IsraelТs Declaration of Independence, which speaks of freedom Уas understood by
the prophets of IsraelФЧfar removed from the permissive freedom of contemporary
democracy.
c.аа
Third, the list of human rights concludes as follows:а УThe limitations of a human right pursuant
to any provision in this chapter shall be conditional upon such limitation
being consistent with the democratic character of the State of Israel.Фа No mention is made of limiting any so-called
human right which may become inconsistent with IsraelТs being the State of the
Jewish people.а
2.а However, and perhaps contrary to the
authorsТ intentions,а it would be
perfectly consistent with this last quoted human right to limit political
equality if unqualified application of political equality threatened
the democratic character of the State!а
Such would be the case if non-Jewish citizens, averse to democracy,
outnumbered IsraelТs Jewish citizens!
IV. The President of the State.а
This chapter on the President more less duplicates the existing
institution, which in the present writerТs opinion, is superfluous.а
V.
The
Knesset
1.а This chapter contains the first solid
improvement over the existing system.а
It prescribes a Knesset of sixty members elected on a personal
candidature basis in 60 district elections.а
The rest of the (120-member) body is elected in proportional national
elections.а A better ratio would be 80
to 40 favoring constituency elections.
2.а The R-Constitution retains the system of
fixed or closed party lists for the national elections.а A more democratic system would be open party
lists, which would allow the voter to alter the order of candidates listed by
the party of his choice.
3.а The proposed Knesset has a 2.5% electoral
threshold.а This would have no effect on
the existing Knesset.а No more than
three of the present 15 parties in the Knesset would be adversely affected by
such a threshold, and they would join other parties to avoid elimination.а A 5%а
threshold would be more conducive to national unity as well as more
coherent and resolute national policies.
F.а Legislation.а
The four pages devoted to legislative procedures are excessive and an
obstacle to popular comprehension of the document.аа Except for some general constitutional guide lines, the
legislature should formulate its own procedures based now on five decades of
experience.
G.а Treaties.а
This chapter rightly gives the Knesset the power to ratify treaties,
which it now actually lacks (except by a never-effective use of a vote of
no-confidence).а Also, a thirty-day
period must elapse before treaties are ratified.а (No more fait accomplis ala Oslo.)а However, the chapter fails to specify any extraordinary majority
for ratification.
H.а The Government:а
This chapter rightly provides for direct, i.e., popular, election of the
Prime Minister.а Another good
feature:а Neither the PM nor his chosen
ministers will be Knesset Members.а But
the PM is limited to two terms, leading to the unfortunate phenomenon of a
Уlame duckФ prime minister.а There are
irrefutable arguments against this provision in the Federalist Papers.
IX.
The
Judiciary
1.
This is the most questionable chapter.а
It endows the Supreme Court, an oligarchic body, with excessive
power.а Enough that the court will have
judicial review.а But the Constitution
also makes the Court a УConstitutional CourtФ overseeing the constitutionality
of legislation in the absence of litigation by any private citizen.а The Supreme Court would be the most powerful
court in the world.
2.а The document fails to mention the status of Jewish law in the
stateТs legal system.аа It therefore
ignores the 1980 Foundations of Law Act which severed Israeli law from the
binding force of English law, and 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
There
are several other chapters in the Constitution, such as the State Comptroller,
the Economy, the Army, and Public Administration, much of which, it seems to
me, is pedantic.а
One other
chapter is worthy of comment, Political Parties.а УThe right to found and maintain a party is shall not be impaired
unless the Supreme Court, in proceedings prescribed by law, has held its
objects or the objects of its founders entail any of the following:а (1) negation of the State of Israel as the
state of the Jewish people; (2) negation of the democratic character of the
State; (3) incitement to racism.аа This
provision is contained in the 1982 Party Law, which has been applied only
against the late Rabbi Meir KahaneТs Kach Party.а It has not been applied against any of IsraelТs Arab parties
despite their blatant negation of the Jewish state.
Significantly,
the Reichman Constitution makes no reference to National Unity.а It is a thoroughly pluralistic document very
much influenced by contemporary, i.e., libertarian American thought and
practice.а It thus appears oblivious of
IsraelТs precarious situation in the Middle East and the countryТs dire need of
national unity, the first concern of any statesman.
Summing
up:а The Reichman Constitution is silent
about Judaism and Jewish law.а It
contains a fatal contradiction between the УState of the JewsФ and Уdemocracy,Ф
by uncritically accepting the permissive freedom and indiscriminate
egalitarianism of contemporary democracy, as opposed to classical
democracy, where freedom and equality had ethical and rational
constraints.а Although I would not feel
proud or very optimistic living under this constitutionЧfor it will not
overcome the religious-secular conflict exacerbated by the Supreme CourtЧI
prefer it to the existing system of government.аа Surely, with astute selection of its good points, Israel
can do much better.аа