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You’re Better off Constitutionless, North Americans Tell Israeli Guests

May 12, 2005
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Members of a Knesset committee charged with coming up with a constitution for the Jewish state got some unexpected advice on a tour of the United States and Canada: Leave well enough alone. Canadian and American legislators, Supreme Court judges and top lawyers in both countries had the same message. Israel’s current system, haphazard and jury-rigged as it is, is coming along just fine, they said.

U.S. Supreme Court Justice Ruth Bader Ginsburg’s first words to the group were, “I admire Israel and I admire Aharon Barak,” its chief justice.

It’s precisely the role Barak and his Supreme Court have played in filling the gaps between Israel’s Basic Laws — a body of laws that function as an interim constitution — that prodded the creation in the 1990s of a committee to establish whether Israel should formalize a constitution.

Israel’s high court overturns legislation with greater frequency than its U.S. counterpart, and at times legislates in a way that U.S. courts would never consider.

In recent years, it overturned a legislative ban on the sale of pork, citing a basic law guaranteeing freedom of commerce. It also ordered the military to reroute Israel’s West Bank security barrier.

Such interventions, unimaginable in most other democracies, are admirable, said Rep. Jerrold Nadler (D-N.Y.), who met with the group as the ranking member of the House Judiciary Committee’s constitution subcommittee

“One thing that struck me was the ability of the Israeli Supreme Court to make rulings based on reasonableness,” he said.

Regarding the security barrier, “A court in the United States would say it violates rights in constitutional ways and cannot be put there, or it would say it doesn’t, or it would say the route of the fence is a political matter and not for the courts,” Nadler said.

Instead, Israel’s court delved into the issue and noted areas where it said Palestinian rights carried more weight than Israel’s security needs.

Many Israelis and their political representatives embraced the idea of a constitution when it was first raised in the early 1990s, seeing it as a way to establish the outlines of how the Jewish state defines itself and as a way to tame a political system that seemed increasingly beholden to special interests.

Since then, the idea has dropped from favor across the spectrum, partly because of the absolute failure of the first step Israel took toward a U.S. style separation of the executive from the legislature, the direct election of the prime minister. That attempt, launched in 1996, lasted three elections, and was abandoned in the 2003 elections because it ended up creating even more special-interest groups.

Herman Schwartz, an expert in constitutional law at American University who met with the group, cited his experience in helping post-Cold War states in arguing that good intentions often have unexpected results.

“I tried to tell them, I spent 14, 15 years on this in east Europe, from one end of the Soviet Empire to the other, and it always turns out different,” he said.

Instead, the North Americans suggested that Israel focus on preserving minority rights, which are the bedrock of any democracy.

In Canada, the chairman of the Knesset committee, Michael Eitan, said that a leading Quebec separatist said recent bids for independence failed because French Canadian nationalists were unable to assure minorities that their rights would be guaranteed.

The committee members, across the political spectrum, were taken aback by what they perceived as a rollback in rights in the United States on their tour this week and last, sponsored by the American Jewish Congress. They especially cited legislation passed by both houses that would keep courts from considering the legality of a fence on the U.S.-Mexico border.

That and other congressional assaults on judicial independence, coupled with broadened police powers enacted after the Sept. 11 terrorist attacks, set a bad example, Yuli Tamir, a Labor legislator, said.

“They must understand the international implications of their constitution,” Tamir said she told her U.S. counterparts. “When they pass laws that limit individual rights, that harm privacy, they are becoming a bad example throughout the world.”

Her committee resisted adopting aspects of the U.S. Patriot act because it impinged on individual rights, although doing so would have simplified cooperation between Israel and U.S. law enforcement, Tamir said.

Schwartz agreed.

“The patriot act has had repercussions. It’s been emulated elsewhere, much to our shame,” he said.

If anything, the tour appeared to reinforce a growing consensus in the committee that Israel did not need a constitution.

Nissim Zeev, a legislator with the religious Shas party, described a meeting with Neil Kritz, a constitutional scholar helping the Iraqis draft a constitution. Zeev found Kritz to be hopelessly naive, the Israeli reported.

“I asked him, ‘Why do you need a constitution in Iraq?’ He said a constitution will bring democracy. He’s under the delusion that a constitution will bring democracy, a day after they blew up 60 people in Iraq,” Zeev said.

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