Unamendability in Israel: Implications for Constitutionalism and Democracy
The myriad forms of entrenchment of the ‘Jewish and democratic’ definition discussed in the previous parts may give the impression that constitutional change is imminent and that the Knesset is about to vote for change in the near future.
This scenario is far from being probable. The Jewish definition is strongly within the national consensus among (Jewish) Israelis. The Palestinian citizens who are negatively impacted by the definition are only 20% of the general population, and their representatives occupy 13 out of 120 seats in the Knesset. While their percentage in the population is slowly increasing, this growth is not expected to threaten the Jewish majority. A situation whereby such a change is possible in a democratic way will inevitably be preceded by fundamental changes to the state and society. The entrenchment mechanisms are not expected to be of any use in the near future. However, the examination of unadmendablity in this context provides some insights into Israeli constitutionalism. Similarly, the Israeli case is one that can enrich our understanding of unamendability, and demonstrate how unamendability could be introduced in different forms to deepen certain understandings of the constitutional order and to preserve existing divides and privileges.5.1 Unamendability in Context: The Israeli
Constitutional Order
Unamendability in Israel should be viewed in the context of the constitutional order and the events and circumstances that prevailed at the time the state was established. The creation of the state as a Jewish state in 1948 came mainly as a result of the efforts of the Zionist movement which were facilitated by one of the great powers at the time, the British Empire. The Zionist movement aimed at creating a state with a Jewish majority in an area where the majority of the population was Arab. This meant an inevitable conflict between the new settlers and the native population.[760] This conflict came to a head with the 1948 war, as a result of which the majority of the Palestinians were expelled or were forced to flee from the area that became Israel and effectively creating the Jewish majority.[761] However, the state population was not purely Jewish—12% of the population were native Palestinians.
While those were eventually given Israeli citizenship, until today they suffer from discrimination in almost all aspects of life.[762] The state, in reality, oscillated between two poles: the pole of universality expected from a modern state which should be built on citizenship rights, democracy, and the rule of law, and the pole of ethnic/ religious state that aims to consolidate and preserve a solid ethnic/religious majority among its citizens.This oscillation finds its expression in the definition of the state which combines the universal element (democracy) with the particular ethnic/religious element (Jewishness). The outcome of the oscillation between these two poles, however, is not neutral, for the Jewish definition is given more weight. The founding ideologies and the constituent narrative are preserved, and are part of the fundamental principles of the state. They are visible in almost every facet of the constitutional order: they play a role in immigration laws and policies, in political participation, in legislation and legal interpretation, in the process of constitution making and amendment, and in the process of judicial review. Of course, this strong presence is reflected in laws and policies that are favourable for Jewish citizens and discriminatory or even racist for the Palestinian citizens.[763]
This context helps explain the significance of the expressive function of unamendability. Not only are the values expressed in the definition foundational, they also present an image of the state that the current generation cannot even envision changing, and in effect ban any change. The expressive function is accentuated by two other factors. The first factor is the fact that Israel does not have a formal and complete constitution, nor does it have any special constitutional amendment rules, but still has unamendable principles. Essentially, this means that the (Jewish) Israeli society is unwilling or unable to reach a consensus on a formal constitution, but can only agree (and express the view) that it should be within the limits of ‘Jewish and democratic’.
The second is the fact that, as mentioned above, the likelihood that the Knesset would vote to amend the definition is so remote or even impossible, even without recourse to section 7A of Basic Law: The Knesset. The near impossibility of such an amendment highlights the expressive role of unamendability. It has to do more with declaring values and ideology rather than pre-empting possible risks.5.2 Unamendability and the Hierarchy of Values
and Norms
Unamendability is another site where we can see the tension and the oscillation between the universal and the particular. The entrenchment of the ‘Jewish and democratic’ definition is in effect the entrenchment of two combined values, the Jewish character and democracy. The Jewish character is particular; it is legally defined in the Law of Return-1950 in ethnic and religious terms,[764] and this definition and the question of ‘who is a Jew’ have been the subject of multiple cases which highlighted the particular aspects.[765] The particularity also extends to the social and political understanding of the term. Democracy on the other hand is a universal value, and its protection also means protection of the right of the population as a whole to participate in governing itself. Despite attempts at reconciling the two elements, the particularism of the Jewish character is generally the dominant element, whether in matters related to symbols and aesthetics, or laws, rights and policies.[766] Unamendability in this context is meant to protect both parts of the definition from change through a democratic process. There are good reasons why this protection should extend to democracy: it is a universal value and its constitutional entrenchment, even if there is a fleeting majority that wants to change it, refers back to democracy as the foundational principle at the heart of the constitutional order. It does not extinguish the will of the people. On the contrary, it establishes popular sovereignty as the source of the authority of the state.
On the other hand, unamendability also means that the Jewish definition, cannot be changed democratically. The Jewish character is not a matter of democratic agreement, but an axiomatic given that cannot be changed or even questioned using democratic processes. This situates the Jewish character above democracy creating a hierarchy among the fundamental values.This position could be countered using the justification that is generally invoked to defend the democratic pedigree of unamendability: the distinction between secondary and primary constituent power. In his spirited defence of unamendability, Yaniv Roznai argues, inter alia, that unamendability may foreclose constitutional amendments based on secondary constituent power, and this foreclosure is justified because it gives expression to the will of the people who adopted unamendability when they exercised primary constituent power.[767] Unamendability, however, does not block the option of exercising primary constituent power, where all values could be revised or reformed, including unamendable provisions or values. According to this line of reasoning, as long as the people have the option to exercise its primary constituent power, then the undemocratic objection to unamendability does not stand or is at least significantly weakened.
At least three objections could be raised against this position. First, this argument pre-supposes that the existing constitution, which contains the unamendable provisions, was adopted in a democratic manner, which is not always the case.[768] If the existing constitution cannot pass the democratic legitimacy test, then this defence of unamendability fails. The second objection is related to the manner and form of exercising primary constituent power. While the distinction between primary and secondary constituent power is neat in theory, the reality and the practice are much more complicated since there is no one formula, template or agreed upon standards or procedures that could be followed.
Indeed, one of the main attributes of primary constituent power is that it is generally thought of as extra-constitutional and extra-legal. The lack of processes, institutions, standards or models readily available for exercising primary constituent power makes the idea more complex to translate into practical reality. The requirement to overcome all of these barriers provides for a very high threshold for change. A third objection, is related to legality: most theorists see the exercise of primary constituent power as something that precedes the constitution and, therefore, necessarily outside legality. Exercising primary constituent power to change or remove unamendable provisions or principles means breaking away from law. But until this revision happens, those who are opposed to the values that are protected by unamendability and act to change them are in some sense outside the realm of legality. In Israel, this is not merely a theoretical concern and a number of examples demonstrate how being outside the realm of legality can easily translate into repressive practices. A statutory amendment from 2011 is a case in point: according to section 3A(1) of the Foundations of the Budget Law (Amendment No. 40) (Reduction of Budget or Support Because of Activity Against Principles of the State)-2011, the Minister of Finance is empowered to reduce funding to a publicly funded body if it makes any expenditure that could be seen as a negation of the existence of the state as a Jewish and democratic state. These powers are, in all but name, powers to impose a criminal penalty in the form of a fine.[769] Outright criminalisation of statements rejecting the ‘Jewish and democratic’ definition was proposed in a private member bill in 2009.[770] In the same vein, the secret service (GSS or SHABAK) characterizes as ‘subversive’ any activity that seeks ‘to change the basic values of the state and annul its democratic character or Jewish character’, and is authorized by the Attorney General to use surveillance and enforcement powers against such ‘subversive’ activities.[771] Even if there is no clear break with legality, unamendable clauses, as Ulrich Preuss notes, split the constitution into two levels: one that represents constitutional legality and another that embodies the values and principles of the eternity clause which are seen as more important and more fundamental.[772] This split between legality and super-legality is a source of concern for Preuss since the super-legality of the constitution could be used to overrule its legality.5.3 Unamendability: The Particular v. the Universal
The distinction between the particular and the universal values in the context of unamendability is important. The entrenchment of universal values and principles that are meant to be for the benefit of the general population, especially values that are related to democracy, human dignity and some aspects of human rights, could be defended and justified as intrinsic to democracy. This argument does not stand for particularistic values. The Supreme Court Justices who introduced the unwritten unamendability glossed over this distinction when they sought to draw support for their position from comparative law. Barak, for example, writing extra judicially in an article where he reaffirmed his view that any constitutional change cannot violate the heart of democracy and ‘Israel’s existence as a Jewish state or the minimum requirements for that character’,[773] examined the applicability of unamendable constitutional provisions in Turkey, India, Austria, Germany, US, Ireland and Brazil. In Bar-On, Beinisch mentioned Turkey and the Czech Republic.[774] Anchoring this position on the unamendability of the Jewish and democratic definition in comparative literature is disingenuous. Almost all of the cases of unconstitutional constitutional amendments mentioned dealt with universal principles such as democracy, human dignity, and the republican form of governance. Some refer to broader principles like ‘the basic structure of the constitution’ as in India, but none of them are as particular as in the case of Israel.
While Barak and Beinisch have no problem in seeing the definition of the state and its minimum requirements as demarcating the borders of possible constitutional amendments, Sharon Weintal is aware of the tension in holding a particular value such as the Jewish character as unamendable. He acknowledges that this creates tension with popular sovereignty and suggests that such clauses or principles should be interpreted narrowly.[775] He nonetheless accepts that certain founding values, particular as they may be, may be unamendable provided that such arrangements could be changed using what he calls ‘three track democracy’.[776] However, Weintal’s acknowledgement of the difficulties that unamendability creates in the Israeli context does not stop him from accepting the legitimacy and or even desirability of the current situation where the particular values are dominant. For example, he endorses a constitutional review mechanism based on compatibility with the foundational basic principles to block changes to legislation that contradicts those principles.[777]
Combining universal and particular values and designating these values as unamendable in effect raises these values to a level which is supra-constitutional. But the universalism of democracy does not necessarily counterbalance the particularism of the Jewish definition. The constitutional order is more favourable for those who associate with this particular value; those who do not associate with the particular value are excluded as constitutional actors. Echoes of such exclusion could be heard in Ulrich Preuss’ discomfort with some aspects of eternity clauses. As discussed in the previous section, Preuss is concerned about the split between legality and super-legality that unamendability creates because of the possible use of super-legality to overrule legality.[778] Unamendability could be used by ruling elites who can ‘identify their values and interests with the identity of the polity as a whole and exclude nonconformist and dissenting segments of society as enemies of the constitution, by accusing them of intending to challenge the existential values of the polity and ultimately the existence of the polity itself’.[779] It could be used to identify ‘enemies who have a status of less than full citizenship’.[780] Indeed, it seems that the unamendable principles in Israel that highlight the Jewish character ‘define the collective “self” of the polity—the “we the people”’, as Preuss put it, to the exclusion of 20% of the population.[781] Essentially, the entrenchment of the particular values in this way creates classes of citizenship. It also opens the door and legitimizes the use of coercive state power to repress those who do not agree with the entrenched values. This is exceptionally problematic when those who are subject to these coercive powers are also a distinct national minority.
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