The Israel Democracy Institute (IDI): Constitution by Coercion

by Maskil on November 27, 2007

For the most part, Israel’s founding generations had a healthy disdain for the moribund Orthodoxy they encountered, both in Palestine/Israel and their countries of origin. Sadly for later generations, however, they failed to translate this appraisal into a formal modus vivendi between religion and state. Perhaps as a result of the character of the countries where immigration to Palestine/Israel largely originated from, Israel also did not have a robust tradition of separation between religion and state, but instead took the path of least resistance; the so-called “status-quo” inherited from the Ottoman and Mandate regimes.

Rather than using the planned introduction of a constitution for Israel as an opportunity to address this shortcoming in Israel’s body of legislation, institutions such as the Israel Democracy Institute (IDI) are instead proposing that the existing situation be formalised as part of the constitution.

According to this report in Haaretz:

At issue are five main areas: Rabbinical court jurisdiction regarding marriage, divorce and intimacy, as it stands pre-constitution; conversion to Judaism and other religions; the Jewish nature of the Sabbath and Jewish holidays in the public domain; observing kashrut (Jewish dietary laws) at state institutions; and granting Israeli citizenship to the relatives of anyone eligible to immigrate to Israel.

In my opinion, a constitution that puts these issues beyond the oversight of the High Court (which is what is being proposed) is far worse than no constitution at all. At least under the current order it is still possible to obtain recourse, either by means of the courts or even conceivably through legislation. Once congealed with the constitution, these avenues of appeal would be closed.

The IDI presents this as something on which we can and should compromise in order to get buy in from the religious sector. I believe, however, that if there’s no consensus regarding these issues, they should rather be excluded from the constitution. Attempting to “compromise” (by no means the same as consensus) on such fundamental issues is the worst of all possible options. No issue that affects Israeli society as a whole should be put beyond the scope of the courts, especially not these critical issues around personal status. These are not peripheral issues that can or should form part of constitutional deal-making, but fundamental constitutional issues. Show stoppers, red lines, dealbreakers.

While I don’t pretend to understand fully the role that the IDI has assumed for itself, I believe that it should rather be using its influence to educate the public regarding the importance of separation between religion and state, instead of attempting to persuade them of the need for or inevitability of a theocracy.

Perhaps the IDI and the debate as a whole would benefit from having in place an international panel of Jewish and other interested jurists to guide the IDI and the public on these issues? Not only is it likely that Jews in the Western Democracies have a much clearer understanding of the benefits and necessity for separation between religion and state, but this is an issue that potentially affects every Jew worldwide, not only those who are citizens of Israel. It is therefore important that their input should at least be taken into account.

My guess is that, having toiled mightily over their proposed Constitution by Consensus for the last seven years, they rightly want to see their labour of love become the foundation stone for an eventual Israeli constitution. They should not, however, be prepared to sacrifice Israeli democracy and the rights of the Israeli public to achieve it.

The IDI needs to get back to basics and show an understanding of what the role of a constitution should be in protecting the man on the street from the power of both kings and bishops.

Israeli politicians and public figures – from the greatest to the lowliest – from Ben Gurion to Olmert – have always been far too willing to sacrifice their constituents and principles on the altar of appeasing a non- or anti-Zionist clerisy and its followers, or for some other perceived good. This needs to come to an end.

This is not a Constitution by Consensus but a Constitution by Coercion. By putting forward this Reactionary proposal, the IDI is positioning itself as one of the enemies of democracy in Israel.

(By the way, if the demographic predictions are true (trend is not necessarily destiny) then the proponents of a theocracy may eventually get their own way anyway, when the shrinking and out-bred secular public is in its dotage. In the meantime, let’s not be hasty.)

By all accounts, the person who appears to have the best grasp of what is at stake here is Justice Minister Daniel Friedmann. To quote once again from the Haaretz report:

Justice Minister Daniel Friedmann is opposed to introducing a constitution if it includes a compromise on matters of religion and state, which would preclude the High Court of Justice intervening in these areas.
Haaretz has learned that Friedmann intends to object to the initiative of the Knesset’s Constitution, Law and Justice Committee to introduce a constitution that includes compromises with the religious parties on religious issues, and that he claims it would be better not to pass a constitution at all rather than include such compromises.
“If you want to present an entire constitution by removing the High Court of Justice from matters of religion and state, then I am opposed to such a constitution,” Friedmann told Haaretz on Monday.
Under the proposed compromise, religious legislation would be protected from invalidation by the court, and would not be subject to constitutional principles such as the principle of equality.
At issue are five main areas: Rabbinical court jurisdiction regarding marriage, divorce and intimacy, as it stands pre-constitution; conversion to Judaism and other religions; the Jewish nature of the Sabbath and Jewish holidays in the public domain; observing kashrut (Jewish dietary laws) at state institutions; and granting Israeli citizenship to the relatives of anyone eligible to immigrate to Israel.
Thus, it would be possible to legislate that women cannot serve as rabbinical court judges and that there are Jews who are barred from marrying, while it would not be possible to nullify these laws for infringing on constitutional rights.
Friedmann’s position is that the only issue that makes a constitution necessary, that justifies the High Court’s intervention, and in which its activism is beneficial, is the religious issue.
Under the political compromise being forged by the Knesset Constitution Committee, the constitution would stipulate that on certain matters of religion and state – including marriage and divorce – the High Court would be barred from exercising “judicial oversight” and nullifying laws on religion and state matters that violate the basic rights set down in the constitution.
A similar proposal, revoking the court’s authority to exercise judicial oversight on religion and state matters, was presented in the Israel Democracy Institute’s draft for a proposed constitution.

Constitution by Consensus

Friedmann opposes constitution that compromises on religious matters


Share

Previous post:

Next post: