Claude Klein is professor of Constitutional Law at the Hebrew University of Jerusalem.
To begin with, it would be worth recalling, it seems to me, what a constitution can bring, wherever it may be. If one takes the hypothesis that is ours, that of a democratic State, one will say that the establishment of a constitution has as its principal technical object the setting of clear limits on the legislator. Indeed, while in the past constitutionalism had as its primary function the limiting of the executive, this function is today perfectly achieved in democratic societies. One might even add that in this respect Israel is particularly emblematic. A comparativist may advance, without too much risk, that this control of the executive has attained in Israel an unequaled degree. The Supreme Court (the famous Bagatz) has progressively extended the scope of its review in breadth and in depth.
In breadth, because it does not shrink from any category of governmental acts (hence, for example, the competence it has granted itself to judge the actions of the army in the occupied territories, but also numerous internal decisions of the Knesset itself). In depth, because it does not hesitate to plunge into the examination of the motivation of the act, sometimes crossing — while affecting not to notice — the line, sacrosanct for jurists, between review of legality and review of expediency. To which one may add that appeals before the Supreme Court are practically free of charge, and that the Court intervenes with great rapidity (hence the aptly named institution of the duty judge, on the model of the duty doctor, who can, on the spot, in the middle of the night, issue orders to the administration, notably generously granted stays of proceedings, or again injunctions unknown in France).
And yet, all this is not sufficient: it still remained to succeed in controlling the legislator. It has long been known, including in France, that the law too can be a source of oppression. The law can run counter to certain constitutional principles, precisely called supra-legislative. One could, of course, as France did until 1958, adopt a Constitution (one could even adopt fifteen of them!) without permitting any review of the constitutionality of the law, but that was a hypothesis that was not conceivable in Israel. It was known that from the moment a Constitution was adopted, indeed from the moment laws of a conglomeral kind were adopted that would benefit from a particular status, the Supreme Court would embark on the adventure of reviewing the constitutionality of laws. This is what it did as early as 1969, in a context that was, however, limited, but which was nonetheless to expand and culminate in a crisis over the course of the year 1993 (a crisis which, at the hour these lines are written, is far from being resolved). In other words, it should be noted that the importance of adopting a written Constitution stems essentially — but not exclusively — from the possibility of ensuring the supremacy of laws. In this respect, the polemic that arose between Messrs. […] and Pasqua, on the one hand, and the Constitutional Council, on the other, after the annulment in August 1993 of the first draft of the Pasqua law on the right of asylum in France, is altogether characteristic: everything happens as if the French political class had a great deal of trouble reconciling itself to this control.
The basic laws.
But Israel? Precisely, one may set out from a concrete and recent example. It is doubtless known that, in the absence of a Constitution, a gradual method was preferred: this consists in adopting a series of basic laws (at present eleven in all), only a few of which enjoy a supra-legislative status (expressed by the fact that, to modify them, a reinforced majority is required). Among these is a basic law of innocuous appearance, adopted almost without opposition in March 1992, which bears on freedom of occupation. It provides that the freedom to exercise a professional activity may be limited only “for a valid purpose and on grounds of general interest.” In September 1993, seized by an importer of meat wishing to import non-kosher meat, the Court, referring to this basic law, annulled the government’s refusal to authorize such an activity (note that it is solely a question of the importation of such meat, and not of its sale, when produced in Israel). The outcry, but above all the necessities of coalition, fairly rapidly led the government to suggest a modification of the basic law in question. This demonstrates clearly that even constitutional protection can be overcome, provided one finds the required majority (the French example already alluded to above shows this as well: after the annulment of the first Pasqua law, a revision of the Constitution was voted, opening the way to a second law on the exercise of the right of asylum in France). It is nonetheless a fairly grave and more solemn undertaking: one understands the fierceness of the debates surrounding the adoption of a Constitution.
The symbolic value of the constitution.
Indeed, the Constitution has a symbolic value. It is a country’s calling card, particularly that of a new State. Rather as if, through a few of its attributes, it were presenting itself to the face of the world: an anthem, a name, a language, a constitution, sometimes too a few monuments, like the presidential palace. These come to present, as it were, a concentrate of the new State. No State could fail in this: not even the State of Israel, newly created in 1948, whose first act consists precisely, through the Declaration of Independence, in offering to the face of the world a carefully crafted text, every word of which had been weighed. A dash of Jewish history through the Zionist prism (this whole history amounting to a long quest for the Return to the fold), a pinch of divine evocation (under the modest appellation “Tsur Israel,” the rock of Israel, one of the poetic names of God), a few principles of our time (equality of all, liberty…) linked together by a reference to the principles of the prophets of Israel. One will also underscore the fact that this same Declaration, a superb text, makes reference, moreover, to the election of a Constituent Assembly charged with drawing up a Constitution, no later than October 1, 1948…
We know what happened. The elections were first postponed to January 1949, but above all the Assembly hastened to change its name and call itself the “First Knesset,” causing its constituent vocation to be forgotten. It dissolved in 1951 without having accomplished its task: it had, however, decided that the Constitution would be adopted in the form of separate chapters, called basic laws; these would be brought together later to form the Constitution. In the meantime, the Supreme Court had denied the Declaration of Independence any supra-legislative value…
The eleven basic laws.
The process began in 1958. The eleven laws adopted to date are the following:
The Knesset (1958), the Lands of the State (1960), the President of the State (1964), the Government (this basic law dates from 1968 but it will be replaced by a new version, already adopted but which will not come into force until 1996: it introduces in particular the election of the Prime Minister by universal suffrage), the Budget (1975), the Army (1976), Jerusalem (1980), the Judiciary (1984), the State Comptroller (1986), Freedom of Occupation (1992, but completely recast in 1994), Human Dignity and Liberty (1992).
It will be noticed that only the last two laws tackle the fundamental question, which is that of guaranteed rights. Indeed, however important they may be, the other laws deal scarcely with anything but problems of procedure and competence (with the exception of article 4 of the Basic Law: the Knesset, which protects the proportional voting system specific to Israel and which also contains the principle of equality of lists, on the basis of which the Supreme Court has been able to elaborate an interesting case law). From 1992, the parties attached to human rights decided to subcontract, as it were, the mode of elaboration of a bill of rights (the famous “Bill of Rights” so sought after) by presenting basic laws on particular rights, as and when an agreement could be reached: it is thus that the two laws evoked above were voted. The examination of the fate of these two basic laws will, moreover, allow us to enter into the very heart of the subject, namely the nature of the State of Israel and its constitutional definition.
The Basic Law on Freedom of Occupation.
Its origin has been set out above; it should be noted that after the Supreme Court had invalidated the refusal to grant a permit for the importation of non-kosher meat, a new formulation of this law was adopted. Now, this new formulation was to provoke a fresh outcry that lies at the center of bitter discussions at the moment these lines are written (mid-June 1994). The point, first of all, was to permit the adoption of a law expressly authorizing the government to exclude non-kosher meat from the possibilities of importation. The formulation is as follows:
“The purpose of this Basic Law is to protect freedom of occupation, in order to anchor in a Basic Law the values of the State of Israel as a Jewish and democratic State” (new article 2 of the law).
One also finds, in article 1, a broader definition that applies to the whole set of rights:
“Human rights in Israel are founded upon the recognition of the value of the human person, of the sanctity of life, and on the fact that man is free; these rights shall be respected in the spirit of the Declaration of Independence of the State of Israel.”
Moreover, the law also comes to add a new article to the Basic Law on the Liberty and Dignity of the Individual, which takes up the terms of this article 1, that is to say the reference to the principles of the Declaration of Independence. The paradox consists in this: that such a reference appears today as a disguised means of attacking the partisans of religious influence in Israel. In other words, it seems to be feared in those circles, doubtless rightly, that the Court will use this article only to annul legislative provisions with a religious content. It would still be appropriate to ask oneself what the notion of a Jewish and democratic State represents.
The Basic Law on the Liberty and Dignity of the Individual.
This was to constitute the essential joint of the “Bill of Rights.” It is drafted in fairly generous terms. It addresses notably everything bearing on personal security or again on the dignity of the individual, adopting on the one hand the criterion of the Jewish and democratic State, and on the other that of the principles of the Declaration of Independence. Concretely, this means that when it is seized of a request to examine the constitutionality of laws, the Supreme Court will verify, among other things, whether the law in question is compatible with these principles. Fine days ahead for jurists… One understands that religious circles should be worried and should already be demanding the repeal of provisions that were, in fact, adopted without their being perfectly aware of it. Now, precisely, one of the most influential judges of the Supreme Court, Justice Aharon Barak, has already let it be known, in a much-noticed article, that to his mind the expression “Jewish State” refers only to the universal values of Judaism and not to the Halakha. The battle for the constitution is therefore being waged on a new, relatively restricted field.
A written constitution?
It remains, of course, that the adoption of a written constitution, superior to ordinary law and accompanied by a review of the constitutionality of laws (which appears self-evident in Israel) would be of a nature to settle many problems. But it is appropriate to be prudent, for numerous are the domains in which the Court could be called upon to rule. There exist, indeed, many laws whose motivations are purely religious. Let us cite at random the laws on marriage, on pig farming, on the observance of the Sabbath. But is it appropriate to forget here other laws that bear on the “Jewish character of the State” and that lie outside the religious domain strictly speaking? What of the Law of Return (which, contrary to a widespread opinion, does not constitute a basic law)? Of course, it will be objected, the Law of Return is not a religious law. However, that is not enough to calm the apprehensions of one part of the country’s population, namely the Arabs (who make up 18 percent!) who see in the Law of Return, at the very least, a path that makes them ever more a minority. One will reply that this is a matter of the Jewish and democratic State, but why should one admit a priori such an infringement of the principle of equality that one would wish to reject when it is a question of intra-Jewish problems?
As one can see, the argumentation is complex. To place oneself from a strictly secular Zionist point of view leaves many questions in suspense. That is why the author of these lines has formulated a few reservations concerning a demand that would claim to be too radical. The affirmation of the Jewish State — or even of the State of the Jews — seems to entail, by itself, a certain number of exceptions to a reductive vision: no more than it seems possible — at the very least at the present stage — to set aside provisions that constitute incontestably an exception to a Jacobin vision of society (the Law of Return is an example), does it appear possible to envisage, at this same present stage, a total secularism on the French model. The dividing line between the admissible and the inadmissible should be found, it seems, in a deepening of the distinction between the public and the private, the individual and the collective. But that is doubtless the theme of another article. □