"A CONSTITUTION FOR ISRAEL: PRELIMINARY DRAFT"*

Prof. Paul Eidelberg

"A CONSTITUTION FOR ISRAEL: PRELIMINARY DRAFT"* ~by PROFESSOR PAUL EIDELBERG FOUNDATION FOR CONSTITUTIONAL DEMOCRACY P.O. BOX 23702, JERUSALEM 91236 ISRAEL * Based on a paper presented by the author at the American Political Science Association annual conference in Washington, DC on August 31, 1997 (which was translated into Hebrew and published in Israel's premier journal Nativ: A Journal of Politics and the Arts, January 1998). ____________________________________________________________ I. DESIGNING CONSTITUTIONS A. PRELIMINARY CONSIDERATIONS:A PRESIDENTIAL-PARLIAMENTARY SYSTEM 1. ISRAEL'S present system of coalition cabinet government yields a plural and therefore inept Executive. If only because of this country's precarious situation in the Middle East, a well-designed constitution will prescribe unity in the Executive by means of a Presidential form of government in which members of the Cabinet are freely chosen by the President and share his basic convictions. 2. The Parliament should be bicameral. While the function of law-making will be assigned to the upper branch, the "Senate," the function of administrative scrutiny will be assigned to the lower branch, the "Chamber of Deputies." To anticipate objections to a second branch of Parliament without law-making power, let us compare it with the existing Knesset. a. The Knesset, in practice, it is little more than a rubber-stamp for the Cabinet. It does not legislate so much as affirm legislation initiated by the coalition of party leaders heading the cabinet ministries. Subservient to the Cabinet, the Knesset is incapable of exercising the important function of administrative oversight-which is why corruption in government is so widespread in Israel. b. Whereas members of the Knesset are utterly dependent on their parties, members of the proposed Chamber of Deputies will be accountable to their constituents. Deputies will have a base of independent power, while constituents will have their own representatives. Since Deputies will be excluded from the Cabinet, they will not be deterred from scrutinizing the bureaucracy to see whether the laws are being faithfully and efficiently administered. This will minimize corruption. II. A DRAFT CONSTITUTION A. THE PREAMBLE [It would be perverse and ignominious that the People who gave mankind ethical monotheism should omit reference to God in the Preamble of its Constitution when God is mentioned in various constitutions of the democratic world. Hence the following is suggested.] WE THE PEOPLE OF ISRAEL, grateful to God for preserving us as a Nation and for returning us to the Land of our Fathers, mindful of our sacred responsibility to Mankind as the Torah-bearing Nation, dedicated to Truth, Justice, and Peace, do solemnly establish this Constitution. Accordingly, nothing in this Constitution is to be construed as derogating from the Wisdom of our Prophets and Sages. To the contrary, this Constitution is intended to preserve the Jewish heritage and to hasten the day when Israel will present the example of a Nation in which Freedom dwells with Righteousness, Equality with Excellence, Wealth with Beauty, the here and now with Love of the Eternal. B. INSTITUTIONS OF GOVERNMENT THE SENATE 1. The Senate shall be composed of [ ] members having a six-year tenure. One-third will be chosen every second year. 2. To be eligible for membership in the Senate, a person must have knowledge of` the Hebrew Bible, Jewish history and customs, and Jewish literature, which knowledge must be certified by secular and/or religious institutions of learning prescribed by law. 3. For the purpose of electing Senators, the country shall be divided into regions. The number of regions shall be prescribed by law. The method of choosing Senators will be based on the open [as opposed to the present closed] list PR system. 4. The electoral threshold shall be prescribed by law, but must be no less than five percent. 5. A majority of the members of the Senate may, by a petition addressed to the President, request the President to decline to sign and promulgate as a law any Bill (other than those affecting defense and appropriations) on the ground that it contains a provision of such national importance that the will of the people thereon ought to be ascertained by a national referendum. 6. No treaty or agreement with any foreign power or entity shall become law prior to twenty-one days after its submission to the Senate. One-third of the Senate's membership can prevent any treaty or agreement with a foreign power from becoming law immediately, by setting it aside until the next senatorial election. Such a pending bill comes into effect only if the new Senate, too, adopts it without changes after the election. 7. The Senate shall have the power to declare war, provide for the common defense, and make all laws which shall be necessary and proper to promote the welfare and dignity of the State of Israel. THE CHAMBER OF DEPUTIES 1. The Chamber of Deputies shall consist of [ ] members having a tenure of four years. One-half shall be chosen every two years. 2. Deputes will be chosen in single-member electoral districts. 3. Excepting classified security matters, the Assembly will inspect the State administration, including the ministries, the army, and every institution or enterprise in which a State authority participates, whether managerially or financially. Inspection shall include accountancy, legality, and appropriateness of the practices examined. 4. The Chamber of Deputies will conduct public hearings, investigate public complaints regarding the State administration, and suggest measures to remedy any administrative shortcomings and abuses. [The Chamber's investigatory powers render it a formidable body, as would be appreciated by those familiar with the power wielded by any investigating committee of the American Congress.] 5. The Chamber of Deputies may recommend legislation to the Senate, which the Senate may simply reject or amend as it sees fit. But if such recommendations are enacted into law, their juridical authority will be derived from the action of the Senate. THE PRESIDENT 1. The Executive power shall be vested in a President. The President shall hold office for four years, and, together with a Vice-President chosen for the same term, shall be chosen as follows: (a) Forty days prior to the prescribed date for national elections, the Senate shall convene to nominate at least two presidential candidates. Any group of 20 or more Senators may nominate a presidential (and vice presidential) candidate. (b) The names of the presidential candidates (and their respective vice-presidential candidates) shall be placed on a national ballot. The candidate receiving a majority of the votes cast shall be President. If no candidate receives a majority, the two receiving the highest number of votes shall compete in a run-off election. 2. To retain the services of a wise and experienced President, and to avoid the phenomenon of a "lame-duck" President, he will be indefinitely eligible for re-election. [This accords with the democratic principle of government by the consent of the governed.] 3. The President shall recommend legislation to the Senate, have the power, with the consent of the Senate, to make treaties, be commander-in-chief of the Israel Defense Forces, and be responsible for the administration of the laws. 4. The President shall nominate the members of his Cabinet. The names shall be submitted to the Senate for confirmation by a majority vote of the plenum. 5. The President shall nominate the Judges of the Supreme Court. The names shall be submitted to an ad hoc Judicial Appointments Committee for confirmation. 6. The President will be subject to impeachment for malfeasance of office by a two-thirds vote of a Senate plenum. 7. The Vice-President shall preside over the Senate and vote only in the event of a tie. THE JUDICIARY 1. The judicial power shall be vested in a fifteen-member Supreme Court and in such inferior courts which the Senate may from time to time establish. 2. The membership of the Supreme Court will include at least five professorial and five rabbinical experts in Jewish law, all of whom, however, must be knowledgeable of secular law. 3. The Supreme Court shall exercise substantive judicial review and be the final interpreter of the Constitution, except as otherwise provided by this Constitution. 4. Given the diverse systems of law still operative in Israel, the Supreme Court will make reasonable efforts to unify Israeli jurisprudence with the clear public understanding that Jewish law shall be "first among equals" in every case where an Israeli statute is ambiguous or uncertain, except only where the Israeli statute explicitly differs from Jewish law. [This conforms to the Foundations of Law Act passed by the Knesset in 1980, which provided: "Where a Court finds that a legal issue requiring decision cannot be resolved by reference to legislation or judicial precedent, or by analogy, it shall reach its decision in the light of the principles of freedom, justice, equity, and peace of the Jewish heritage."] 5. Questions of personal status (e.g. marriage, divorce, and conversion) shall be decided solely by Rabbinical Courts. C. AMENDMENTS AMENDMENTS to the Constitution shall require the approval of two-thirds of a Senate plenum followed by a referendum of Israel's Jewish population of which a two-thirds vote will be required for confirmation. D. OTHER CONSTITUTIONAL PROVISIONS 1. No person holding office under the authority of Israel shall, during his tenure, be eligible for any other public office, unless otherwise specified in this Constitution. Nor shall he be a member of, or receive any emolument from, any profit-making enterprise, or appoint any personnel employed therein. 2. Election campaigns shall be confined to thirty days and be financed solely by public funds. Per capita expenditures for such campaigns will not exceed that of other democracies. Any expenditures that exceed the statutory limitations will not be financed by subsequent legislative appropriations. 3. No person shall vote in any national election unless he has been a resident of Israel for two years. E. A Constitutional Bill of Rights 1. The Land of Israel, of which the State is only the custodian, belongs exclusively and eternally to the Jewish People. Hence, except for public purposes defined by law, the State shall foster private Jewish ownership and development of the Land of Israel. 2. Force majeure aside, no land under Israel's sovereignty may be surrendered to any foreign power or entity. 3. No law of the Senate, and no decision of the Supreme Court, shall be promulgated without due respect for the abiding beliefs and prevailing practices of the Jewish People. 4. All elected officials and civil servants shall duly affirm Israel's paramount governing principle as a Jewish State. 5. No citizen of Israel living abroad shall be denied the right to vote in elections for which he is qualified. 6. Citizens and residents of Israel will be guaranteed freedom of religion and freedom of speech and press. Citizens and residents of Israel shall have the right to establish their own religious and educational institutions, provided these are consistent with loyalty to the Jewish State. 7. No citizen or resident of Israel shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or due process of law. 8. In all criminal prosecutions the accused shall enjoy the right to counsel, to a speedy and public trial, to be informed of the accusation for which he is been charged; to be confronted by witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. 9. The right of citizens and residents of Israel to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. 10. The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the Jewish People or affirmed by the Torah respecting Jews and non-Jews. IV. Conclusions THE above constitutional provisions are tentative and by no means complete. The modes of constituting the various branches of government will have to be further elaborated, as will their respective powers and procedures. Nevertheless, this proposed Constitution would: (1) Enhance Israel's dignity; (2) facilitate the wise formulation and execution of national policies; (3) elevate the moral and intellectual character of Israeli politics; (4) enable the Government to negotiate more effectively with foreign powers; and (5) promote Jewish unity and Jewish national pride.