The Israeli founders envisioned a constitution (Photo: The Knesset)

The Seeds For The Recent Protests Over Judicial Reform Began In 1948

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The Judean Staff
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The recent protests and civil disruptions in Israel over the proposed changes to the power of the Judicial branch of government should never have happened. The fact is, Israel’s system of government is not complete, and the founders of the government knew that nearly 75 years ago. The way Israel’s ‘balance of power’ is structured is flawed, and it does need reform, however, how it is being done is wrong. The fight over the judiciary is about how judges are chosen, and what powers the courts have when it comes to Knesset legislation among others. All of these could have and should have been addressed in Israel’s constitution, and yet sadly, after three-quarters of a century, the Jewish State still does not have one.

When Israel was founded, its leaders intended to create a constitution that would serve as the Foundation Stone for the Jewish State. They believed in this need for laws that show the world and the generations of Israelis to come, how Israel as a nation defines freedom and democracy. The belief was so strong, they made a point to include it in their founding charter, Israel’s Proclamation of Independence.

The authors of that historic document even named the first day of October 1948 as the date for which the spine of the Jewish State was to be delivered. It never was. For close to 75 years, Israel has been relying on Ottoman, British Mandate, Knesset laws, and even Jewish Law to serve as the guide for her Judicial system. The Knesset has passed laws and it is up to the courts to determine legality based on texts meant for another time, another country, and another people. For 75 years, Israel has been using laws designed to subjugate and oppress and discourage dissent amongst those who dwell within her borders. This might be extreme but based on the foreign Ottoman and British interest in controlling the region, the previous sentence is a fact.

Today, Israel is in the midst of a national crisis. After five elections that were a product of a stalemate, no doubt, with roots that can trace their way back to the founding of the nations, the country is paralyzed, held captive by conflicting ideologies on the kind of country Israel should be. Economically, Israel has a bloated bureaucracy that is riddled with corruption and financial mismanagement; an overtaxed minority workforce accounts for much of the Tax revenue, revenue which is needed to support a portion of the population that shuns work for Talmudic study.

Every country is flawed, no system is perfect, and no government or laws will be agreeable to everyone. Even America is divided politically, with a vibrant, young progressive-minded electorate emerging to challenge the status quo socially and alter America’s national identity, politically. The situation with Israel is different, though. Israel was never given an identity, the founders determined that numerous questions were too difficult to answer in the beginning, and each successive government since the first has done just the same. Yes, Israel is the Nation-State of the Jewish People, it is more of a fact than a law, and what that fact means is a highly toxic discussion.

Without any formal constitution, Israeli politicians often turn to the text of the 1948 Proclamation when justifying a stance on some position, a fatal flaw as the Proclamation is the “Why” whereas a Constitution is the “How.” In the Proclamation, however, Israel’s founders do outline what type of State they envision, and they do so in the same breath where they direct a constitutional convention and place a deadline on the process. The official Israeli English translation states:

“The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice, and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education, and culture; it will safeguard the Holy Places of all religions…”

Based on this paragraph, it is easy to ascertain the motives of those who fought to bring a Jewish homeland to the world on the same soil as their ancestors. As a post-World War Two country whose founding was in part planned and supported by Western Democracies, the Israeli founders believed in a more modern approach, allowing the inclusion of all the varieties of Jews that wandered the earth. As with America’s founding fathers, they envisioned laws rooted in the Laws’ of Moses but not too much that it would turn the Nation into a religious state. Israel’s founders looked to the laws of the West in writing this, and it is clear they favored a secular State with religious freedoms for all.

Thomas Jefferson and James Madison, the chief architects of America’s foundational laws believed strongly in their faith. They also believed strongly that the intertwining of religion into a governing structure would corrupt the purity of the freedoms they based their dissolution from England on. From human history they learned a State should not do the bidding of a God, noting that rarely has anything positive ever come from that. And the citizens of the State should be allowed to honor God, to follow God in the manner that suits the individual without unreasonable restriction. Israel’s founders saw this as important as well although the task was too big given the realities of the first year of Israel’s existence.

So, how did that first day of October 1948 pass with no Constitution? The fear that the State would fail before it even had a chance to begin was the driving force. The State was new and war raged on, Israel needed bodies. They needed the exiles to gather and build the nation but feared without religious support they would not be successful. The Agudath Israel movement, created in Europe before the First World War represented the religious and was comprised of many factions, the modern Orthodox from Germany and the many ultra-orthodox sects from Eastern Europe. Many secular Jews deferred to Agudath Israel and specifically, the local groups that comprised it on all Jewish-related matters.

The ultra-orthodox sects were concerned about the loss of tradition through modernization. They wanted to rebuild the life Hitler destroyed and honor those he killed by keeping to tradition and that meant not modernizing or assimilating to contribute to modern, secular culture. It was these factions which effectively held up the constitutional process. Throughout Israel’s young history, splinter groups have extorted governing coalitions for preferential treatment of their constituents to the disadvantage of their fellow citizenry. The irony is that too-many ultra-orthodox do not believe ideologically in the Jewish State, and yet so much consideration for their way of life was given to them by the founders and the governments which came after.

Israel needs a Constitution of her own. What that looks like is not important, the process of creating it and following through on delivering it is. The result will serve to ensure Israel’s future is not always shadowed by its past.

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The Judean is a weekly digital blog highlighting Israel's vibrant Democracy, rich culture, and complex history. Through compelling op-eds, and featured articles, The Judean brings the real Israel into focus. 'From The River To The Sea' Israel is truly free.
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