An Israeli constitution is just an excuse

by Martin Sherman
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Opponents of judicial reform are making an offer they cannot deliver, nor do they wish to.

(JNS) “I don’t think it is right for the Supreme Court to change fundamental things in accordance with what it refers to as the judgment of ‘the reasonable person.’ That’s an amorphous and completely subjective definition that the Knesset never introduced to the legal code.” — Yair Lapid, articulating his opposition to the reasonableness clause

“If the reasonableness clause is abolished, all lines will have been crossed. It will demolish the authority of the Supreme Court and our democratic structure.” — Yair Lapid, articulating his support for the reasonableness clause

As the obsessive, borderline-maniacal Bibi-phobic opponents of judicial reform continue with their destructive and lawless demonstrations-cum-riots on the streets of Israel, a new demand is emerging as a panacea-like balm for the nation’s tribulations. 

It is the idea of adopting a constitution for Israel. Proponents suggest that such a constitution would placate the demonstrators who oppose any and all of the coalition’s legislative initiatives.

Seductive and deceptive

A constitution for Israel is a seductive idea. It evokes the idea of emulating the United States, the leader of the democratic world. But it is also a highly deceptive notion, far more declarative than substantive.

Indeed, the existence of a constitution is no guarantee of individual rights, civil liberties or any of the enlightened goals that opponents of judicial reform profess to cherish. A brief jaunt through Google reveals that countries such as the USSR (and later, the Russian Federation), North Korea and Upper Volta (later Burkina Faso) all boast constitutions that include(d) an array of lofty human rights. The demonstrators are very unlikely to endorse any of these states as a model democracy for Israel to emulate.

Thus, it should be clear to any serious student of political science that an authentically substantive constitution cannot, in and of itself, create societal values. On the contrary, it can only reflect them. If it does not, it will remain nothing more than a worthless piece of paper.

Reflective not creative

Just how irrelevant the text of a constitution can be when it does not rest on values a society embodies is vividly portrayed by the 1991 Rwandan Constitution. It was formulated just three years prior to the brutal genocide that ripped through that luckless country and read in part, “The National Council for Development, meeting as Constituent Assembly … faithful to democratic principles and concerned about ensuring the protection of human rights and promoting respect for fundamental freedoms, in accordance with the ‘Universal Declaration of Human Rights’ … does establish and adopt this Constitution for the Republic of Rwanda.”

Of course, the terrible carnage that followed soon after the adoption of this constitution underscores the staggering distance that can separate noble words and benign intentions from gory realities.

To illustrate the point, consider Article 31 of Burkina Faso‘s 2015 Constitution, which proclaims, “Burkina Faso is a democratic, unitary and secular State. Faso is the republican form of the State.”

Yet Human Rights Watch painted a dour picture of the situation on the ground: “Burkina Faso’s human rights situation seriously deteriorated in 2022 as deadly attacks by Islamist armed groups against civilians surged, military forces and pro-government militias committed violations during counterterrorism operations and political instability deepened as a result of two military coups.” 

So much for the “democratic,” “unitary” and “secular” state optimistically set out in Burkina Faso’s constitution. 

Structure vs. substance

This disconnect between the formal structure of a national polity and its substantive political routine is also demonstrated by the example of Pakistan.

The formal structure of the Pakistani political system has many similarities with that of the U.S. It has a bicameral legislature, a federal system of government, a president elected separately from parliament and a constitution that purports to ensure civil rights.

Yet Pakistan ranks 102nd out of 164 counties in the 2023 Democratic Index Rankings. Significantly, the US ranks 26th, below Israel in 23rd place.

The converse of this paradox is no less telling. Just as a formal constitution is no guarantee of substantively democratic governance, the lack of a formal constitution does not necessarily mean a lack of democratic governance.

Thus, eminently democratic countries such as New Zealand, Britain and Canada—like Israel—do not have a formal constitution. Yet this has not prevented them from providing their citizens with political freedoms and human rights that are among the most comprehensive in the world.

Nothing but a red herring

Of course, raising of the issue of a constitution as a potential way out of the political impasse over the future of Israel’s legal system is nothing but a red herring. A constitution has been an elusive ideal in Israel from its very inception. Indeed, Israel’s Declaration of Independence stipulates that a constitution should be drawn up by Oct. 1948. Yet for three-quarters of a century no constitution has been adopted because of hitherto unbridgeable divides in Israeli society.

Nonetheless, for almost eight decades, despite not having a formal constitution, Israel has developed, progressed, prospered and withstood changes of government, political assassination, grave external threats and internal unrest. It has done so while preserving its democratic values and its people’s material well-being.

In principle, a formal constitution may be a worthy objective, but its absence hardly precludes democratic governance or economic development. Moreover, opponents of judicial reform know full well that just as no agreement can be reached with them on the reforms, no agreement can be reached with them on the content of a constitution. Debates over a constitution would go well beyond the nature of the judicial system and extend to all aspects of Israeli society, on which the public is just as divided.

Clearly, the idea of adopting a formal constitution for Israel in exchange for dialing down the maliciously and mendaciously choreographed protests against judicial reform is nothing but a devious deception to delay the reforms themselves. It is an offer that those proposing it cannot deliver, nor do they wish to.

As such, it should be robustly rebuffed.  

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