THE BLOG

The Proceduralist: A Brief History of Israeli Constitutionalism

After an unequivocal experience of the inefficacy of the subsisting Israeli Government, you are called upon to reflect on the 62nd anniversary of the Knesset's first session (February 14, 1949), on the Israeli failure to enact a constitution.

While Egypt is struggling with the problem of constitutional reforms, it is worthwhile recalling that Israel is the only liberal democracy functioning without a constitution, neither codified nor uncodified. So, you might ask, how did the Jewish State end up without a constitution, although it was its first commitment, as recorded in its declaration of independence?

In a nutshell, Israel does not have a constitution today because the Zionist consensus had difficulties reaching an agreement on the number of deputy speakers to appoint.

For a longer answer, one should consider the first meeting's protocol, in its role as a Constituent Assembly, the Jerusalem-style Philadelphia Convention. Recall, the
Knesset started its political life as a Constituent Assembly, after it was elected to that end in general elections on January 25, 1949.

The record of the first session shows how Israel's inability to set priorities in public debate was as striking in the nation's early years as it is today. The ebullient speech of Chaim Weitzmann and the singing of Hatikva (Hope), that led the first session, immediately gave room to a political debate that was more trifling than substantial - how many deputy speakers should the Knesset appoint?

The debate would set the tone in the Knesset for decades to come. The delegates to the Constituent Assembly, quickly engaged in inflammatory rhetoric. One delegate described the debate as a "disgrace." Remember, the topic was the number of deputy speakers to be appointed.

Right from the start, leaders in the Knesset looked for reasons to be personally insulted by opposing views. Three days before Israel had even enacted its first law, Menachem Begin went so far as to call for the involvement of legal experts to determine the legality of the debate itself.

The mundane matter underlying the debate - again, how many deputies should there be? - wound up resolved at the number two. But that simple answer was not even executed, as the Constituent Assembly convened only four times. That set a precedent for the Knesset's valuing barroom brawls over substance and resolutions.

That argumentative indecisiveness has carried over to Israeli politics to this day.

Even through the first session, a party had already split, stimulating a procedural debate that now looks comical but eminently familiar. As one early Israeli Communist leader excoriated his dissenting colleague, a Hebrew Communist:

A person cannot rise here and declare that he represents a faction of Hebrew Communists; such thing exists nowhere in the world, since a Communist party is named after a place and not after a people. Thus I hold Mr. Ferminger should have no place in the Constituent Assembly, as he represents only himself.

With the early Knesset nearly exploding into vicious cycle of procedural debate, some tried valiantly to get it back on track. As the Knesset continued to debate the matter of how many deputies the speaker should have, the premier David Ben Gurion was forced to explain to his colleagues that the assembly is sovereign to decide as it pleases and the rule will depend "solely on the Constituent Assembly deciding one way or another." But he was overruled by Menachem Begin, who insisted on getting a legal opinion from the provisional justice minister.

Perhaps this led Ben Gurion to give up on the laudable hope of a nation ruled by a constitution, both in terms of getting one passed and then, complied with. Three days later, the Constituent Assembly made the only decision it was not authorized to make, and changed its role to a house of representatives, by passing the Transition Law, Israel's first law.

Many of the contemporary debates in the Knesset share a striking family resemblance with Israel's first debate of record. Of course, at present our vision is often blurred by the ideological fanfare and ostentatious rhetoric, so we may only in hindsight appreciate them in due perspective. Is the recent split in the Labor Party any different from the one in the Communist Party? Can't we translate the quarrel between Defense Minister Ehud Barak and Member of Knesset Shelli Yechimovich (Labor) to the one between the Israeli Communist and the Hebrew one? And doesn't Begin's endearing yet misguided insistence on minute procedures in the absence of a constitution lead to the impasse strategy of the progressive Meretz Party today?

When the first Knesset speaker called for a vote on the question of continuing or ending debate - the first resolution to be voted on in the Knesset's recorded history - delegate Yaacov Meridor exclaimed: "No one has spoken yet against ending the debate," hence blocking the vote on procedural grounds.

That procedural question about the substance of the Israeli democracy has not been resolved until this very day. Perhaps is it time to decide?