On Wednesday, May 4, the Delegates from the Constitution, Law, and Justice Committee of the Knesset met with Jewish lawyers from the Washington, D.C. area at the offices of Nathan and Alyza Lewin. Many of those present had been involved in drafting constitutions for other sovereign nations. Committee Chairman MK Michael Eitan opened the meeting by asking the American participants for the benefit of their experience in drafting constitutions for other nations. What were the central debates and issues, he asked? What professional and political methods were used to solve these problems?
Publicity of the Process
Neil Kritz of the US institute of peace Rule of Law program (A congressionally funded body), who has advised post-conflict states like the Congo and Iraq on creating constitutions, volunteered that the trend in the past 10-15 years represents a real departure from the political and professional constitution-drafting methodologies that once predominated. Closed-door, elite processes like that which brought about the American Constitution, he clarified, are no longer acceptable. Today, we seek to use public participation not only to come up with “the answer,” the best constitutional text, but as a way of engaging the various parties in the process, and making people feel like better citizens. “You can write a great constitution in three weeks,” he said, “but if you want a process that inspires greater loyalty and ownership of the constitution, and in which the people will hold their government’s feet to the fire when they don’t respect the constitution, you need a longer and more participatory process. This is applicable to the Israeli context.” Publics are involved in constitution-drafting projects in two ways: public education and public consultation. In Iraq, the first step was a short interim constitution. This granted everyone a little protection, and gave them enough faith to commit themselves to later enacting a full constitution. In the Iraqi constitutional process, he continued, there is a certain consensus about several central issues, most prominently including the federal model of government. But what does federalism really mean? To some, the term is code for secession and separation; to others it implies unity. Everybody recognizes that the constitution is where the battle will take place over the shape of Iraqi society. The parliament will appoint a constitutional committee; Marc Stern, Legal Counsel to the American Jewish Congress, asked the participants whether they had seen a constitutional process that produced more harm than good. Bob Weinberg, President of the American Association of Jewish Lawyers and Jurists, responded quickly that the United States was an example. Its constitution was narrowly ratified, it needed to be amendable and amended; it took 80 years to deal with the failure that was slavery, and another century to actually act on the amendments designed to solve the problems. Still, he said, the requirement for ratification by at least nine of the thirteen states was key. It ensured at least a substantial consensus. 51%, he said, should not be sufficient to pass the constitution. Israel must set a higher requirement than this, either in the Knesset or in a national referendum. MK Yitzhak Levy suggested that the solution might be to create a constitution in stages. The first stage should be enacted and lived for five years, to see how the minorities feel about it… this will give the legislators greater ability, less restraint, and greater motivation to join the process in the next stage.
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