Israeli legal experts called for a constitution and bill of rights based on the Deceleration of Independence as part of a Sunday alternative proposal to the coalition's judicial reforms that would also establish negotiation guidelines for the opposition.
The independence initiative was proposed by several leading legal experts including former Deputy Attorney-General Dina Zilber, Prof. Yaniv Roznai, Prof. Barak Medina as well as several anti-reform protests organizations, such as Kippur Fighters 73 and Commanders for Israel's Security.
"The primary aim is to try to take advantage of what we refer to as a constitutional moment. It seems that there might be an opportunity, even in times of crisis, to reestablish Israel's constitutional identity. The argument is that if you want to take the constitution out of the Court, so to speak, you need to have a constitution, you need some alternative. If judicial review is not as broad as it is now, we need to balance it with some other mechanism, with an explicit constitution that the public can refer to."
Barak Medina
"The primary aim is to try to take advantage of what we refer to as a constitutional moment. It seems that there might be an opportunity, even in times of crisis, to reestablish Israel's constitutional identity," Medina told The Jerusalem Post. "The argument is that if you want to take the constitution out of the Court, so to speak, you need to have a constitution, you need some alternative. If judicial review is not as broad as it is now, we need to balance it with some other mechanism, with an explicit constitution that the public can refer to."
Medina explained that the constitution could be based on the Declaration of Independence, hence the initiative's name.
"There is the more traditional alternative, let's elect a constitutional assembly and members there that will represent all sections of society will fit and try very hard to draft a constitution that will be agreed upon us by a vast majority and things like that. We all know that this is very unlikely to succeed," said Medina. "We suggest that instead of rewriting or writing a new constitution, we may simply try to change the formal status of the Declaration of Independence."
The importance of the Declaration of Independence in an Israeli constitution
The Declaration of Independence has been featured heavily in anti-reform protests the last eight weeks, with the document or excerpts featured on posters and banners. Opposition leader Yair Lapid submitted a bill for Basic Law: Declaration of Independence to require Basic Laws to follow the principles of the Deceleration of Independence. The Israel Democracy Institute on February 13 also presented a proposal for renewing Israel's constitutional process, calling for a similar bill to enshrine commitment to the declaration’s principles.
"It has this status of expressing a consensus about what Israel should be, both in terms of its text content, but also in terms of the way it was drafted," Medina said of the founding document. "It was drafted, agreed upon by all fractions of at the time Jewish dynamic movement, both right and left."
Medina said that the new proposal could also be used to create positive guidelines for negotiation for the reforms, as well as red lines for the opposition.
President Isaac Herzog proposed a negotiation framework earlier in February that followed the reform agenda, and Medina said that the opposition and those that disagree with the reform needed to present their own agenda to bring to the table. Medina said the group hoped that Herzog would endorse the initiative.
Like Herzog and IDI, the proposal includes the passing of The Basic Law: Legislation which would formalize the constitutional supremacy of Israel's Basic Laws. Also in line with Herzog, the group called to enshrine the power of judicial review, and to find a means to increase court efficiency -- though specifying the consideration of establishing another court, more judges and streamlined procedures.
Legal advisers and the composition of the Judicial Selection Committee would also be formally made independent of the ruling coalition.
While Medina noted that at the time he was not optimistic that a constitution could be written, it was important to inject the values into the discussion.
"We try to stress that the debate is also about values, about liberalism, about the idea of equality and things like that, because what the coalition is aiming at is not simply reforming, so to speak, the judiciary, but it's also it's only a preliminary step in order to promulgate antiliberal legislation and government policies," said Medina.
The proposals establish negotiation red lines such as no constitutional or structural changes without the legislation of a bill of rights. Any Basic Laws on rights would have to be introduced through a special procedure, and until such a procedure for creating Basic Laws would be establish, the group called for no regulation of the High Court's ability of judicial review.
The announcement of the proposal expressed concern that the coalition could pacify the protests using the veneer of negotiations for legitimacy.