A Draft Constitution

Drafting a written constitution for Israel that would considerably improve upon the current situation would be no great trick. Such a constitution would focus on the rules of the game – i.e., the relations between the different branches of government – with the goal of assuring all societal groups of a level playing field.

High on the list of anomalies in the current governmental system ripe for elimination would be the current judicial selection system that has turned the Supreme Court into a self-perpetuating cult. Another would be the unreviewable veto power the Attorney-General currently exercises over every governmental action, which is itself entirely a judicial creation. Limiting the scope of judicial review on military and foreign policy issues, and changing the standard of judicial review of every governmental action from "reasonability" to "arbitrary and capricious," would also help redress the diminution in power of the Knesset and executive.

But such a constitution has no chance of being enacted. Those pushing hardest for a written constitution view it as a means of entrenching, and even expanding, the powers of the Supreme Court. The so-called "consensus constitution," produced by the Israel Democracy Institute might better be called the constitution for the perpetuation of the reign of Aharon Barak after retirement.

It preserves the present system of judicial selection nearly intact. Worse, it adds a whole series of amorphous new rights, to which the Court can give any meaning it wishes – for example, the "right to freedom." And it specifies social and economic rights said to flow from the right to "human dignity." That is an open door for the Supreme Court to establish its own budgetary priorities on a case-by-case basis, and thereby remove the Knesset’s last remaining power – the power of the purse.

An Email sent by Court President Barak to a Yale Law School colleague shows where such an expansion of rights would lead. Barak boasts how in last week’s "family reunification case" he convinced a majority of his colleagues to recognize a new set of "family rights," under the rubric of human dignity. Barak has long claimed for judges the power to import into their legal system certain "unenumerated rights," as long as they conform to enlightened opinion. And that’s what he did.

Barak swayed a majority of the Court to the view that Israel should be the first country since the Trojan horse to admit enemy nationals in time of war – and by virtue of a judicially created right.

And in the Tal Law case, Barak announced judicially created constitutional right to "equality," a right deliberately omitted from the 1991 Basic Laws. And he claimed for the Court, the power to strike down any legislation, even a Basic Law, which in the Court’s eyes contradicts Israel’s democratic or Jewish character, even in the absence of any legislative enactment upon which to base its determination.

If Barak claims such power for the Court today, just imagine the powers the Court would arrogate to itself under a written constitution loaded with a whole set of vague, new rights.