There are no borders and disputes over the identity of the state. Protests in Israel rekindle old debate over unconstitutionality

JERUSALEM – Protests in Israel against a plan to amend the judicial system have brought to the fore the debate over the lack of a constitution, 75 years after the establishment of the state on the ruins of the Palestinian people in the Nakba.

Israel is experiencing a state of political tension and turmoil that has opened the debate between its various political currents and religious movements regarding the drafting of the constitution.

Voices grew louder and differed on the transformation of the Basic Laws (from the Basic Law) into a document establishing the drafting of the constitution, as these laws came to cover up internal disputes, divisions and crises in Israel.

As protests against what Netanyahu's government called "judicial reforms" escalated, partisan, political, religious, and social currents were divided over calls to draft a constitution in accordance with the May 14, 1948 Declaration of Independence, in which the Constituent Assembly should have prepared a constitution by October <> of that year.

Currents and divisions

The difficulties of drafting a constitution stem from disagreements between different political currents over the nature and identity of Israel as a "Jewish and democratic state" as it calls itself, and the social and political division over the articles and axes of the constitution that are supposed to regulate rights, duties, freedoms, and judicial, political, social, religious and economic reality.

The lack of consensus among Israelis on the general definition of the state and its identity, and disagreements over the "state of the Jewish people" or "the state of all its citizens," cast a shadow over the initiatives put forward to draft the constitution.

With renewed calls by opposition parties to stop what they described as a "coup" against the judiciary and move to draft a constitution for Israel, differences surfaced over the relationship between religion and state, the Torah as the source of legislation, the conflict between nationalism and Judaism and divisions between secular and religious.

Controversies since inception

Says law professor at the Faculty of Law in Netanya Joshua Segev to Al Jazeera Net, that the differences over the lack of a constitution reflect the "natural state" of the Jewish people, despite the consensus among the Jews that they will get the right to self-determination in Israel, the differences widened within the Zionist movement and crystallized different currents in it since its founding in 1897, most notably labor Zionism, revisionist Zionism, general Zionism, and national religious Zionism.

The absence of a constitution in Israel, according to Segev, reflects "differences between different Jewish segments and currents," which revolve mainly around Israel's identity as a "Jewish and democratic" state, the relationship between land and Judaism, freedoms and minority rights, and the essence of human rights.

Segev reviewed the Israeli positions between supporters and opponents of the drafting of the constitution, noting that the differences revolve around the structural structure of the system of government, especially over whether it is necessary to accept a formal written constitution as an integral part of establishing a democratic system, and granting full rights to all national, religious and social minorities.

The law professor explains that the dispute over the question of the constitution raises the possibility of a culture war between the religious and the secular, especially over the adoption of the Torah for legislation in the state or the sufficiency of the Knesset as the source of legislation. This would jeopardize the "Zionist idea," some believe, and reinforce the argument that the constitution should be adopted only after "the Jewish people gathered from the Diaspora."

Basic laws as an alternative

Amid disagreements between various social and religious segments and political currents in Israel over the drafting of the constitution, the idea of Basic Laws crystallized, as the Knesset enacted 14 Basic Laws instead of the official constitution, which deal with governmental arrangements and "human rights."

The idea of the Basic Laws was based on a parliamentary committee decision of June 13, 1950, adopted by Israel's Constituent Assembly for the Constitution, as directed by then-Prime Minister David Ben-Gurion.

However, government arrangements to regulate state-citizen relations and the initiation of Basic Laws have kept the debate over state Jewishness and minority rights alive, while the Basic Laws have deepened disputes over the size of the "national home of the Jewish people" and Israel's borders after the occupation of the West Bank, Jerusalem, the Gaza Strip, and the Syrian Golan in the 1967 war.

Faced with the dilemma of drafting a constitution, Israel remains without defined and agreed upon limits among Israelis themselves, as well as disagreements over so-called Jewish nationalism, Judaism, and invoking the teachings of the Torah in daily life as well as Knesset legislation.

The constitution as a solution to the impasse of the "reform plan"

According to Judiciary and Governance Specialist Ron Haris, if the solution to the impasse reached by the Netanyahu government in the "legislative amendment plan" is not the drafting of a constitution, the rift in Israeli society will deepen, as it is not excluded that the situation will lead to a "war between brothers" in the future.

Haris explained that the solution to get out of the "impasse" is either a raging conflict or a constitutional agreement between the various components of Israeli society, political camps and religious currents, noting that "one of the reasons for reaching the crisis is that the constitutional tools in Israel have been suspended during the process of developing and formulating them."

Speaking to Al Jazeera Net, he pointed out that under the Netanyahu government's plan for judicial amendments, it is not clear what the status of the basic laws is. Therefore, the development of constitutional instruments must first be completed, and only then can the details of the new arrangement be negotiated on the judicial amendments that are supposed to lay the foundation for the drafting of a constitution for Israel.

He believes that Israel is obliged to reach understandings on judicial amendments and to draft a constitution that guarantees the protection of rights that are crucial for vulnerable groups, as well as for the powerful and dominant group, including the rights to life, property, freedoms, association, freedom of expression and the rights of the accused.

He believes that the best way to consolidate these rights is to draft a fortified constitution that can change the rights enshrined in it only by a special majority, lead to the separation of powers while maintaining balances, and divide the Knesset into two chambers, while remaining an independent judiciary that imposes the supremacy of the constitution over parliamentary legislation.