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Israeli law professors draft a constitution for their country

FOR 40 years Israel has governed itself without a constitution. Now several Israeli law professors, convinced their country is headed toward political and social disaster, want to change that. Recently they huddled with United States legal scholars over bagels, cream cheese, and coffee at the University of San Diego to hash over a draft constitution that includes a bill of rights and a drastic overhaul of the Israeli body politic.

``It synthesizes the best in existing constitutions in the United States and Western Europe,'' said USD law professor Maimon Schwarzchild, chairman of the public conference held here Sept. 28 and 29.

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``Indeed, it's such an extraordinary undertaking that it might not work,'' Mr. Schwarzchild added, summing up the fears of other US and Israeli panelists.

But Uriel Reichman, dean of the law school at Tel Aviv University and chairman of the four-member, self-appointed drafting committee, is optimistic that, by next year, this 41-page draft or something similar will be put before the Knesset (Israeli legislature) and the voters for debate. He is hoping to raise $4 million - some of it from US Jewry - to launch a grass-roots campaign in Israel for adoption.

``We are in the midst of a governmental crisis that may jeopardize the democratic structure of our society,'' Mr. Reichman said, describing a chaotic parliamentary system of lawmaking in which small extremist parties wield a disproportionate amount of power because neither the centrist Labor alignment nor the rightist Likud bloc - Israel's two major parties - can command a simple Knesset majority.

Fearing the corrosive effects of Israel's protracted occupation of Arab territory and the growing racial discrimination espoused by fanatics such as Rabbi Meir Kahane, these thoughtful academics have enshrined in writing the humanistic principles they believe are at risk today.

Mr. Reichman theorized that, with no constitution to guarantee basic freedoms, a simple majority in the Knesset could pass authoritarian laws curtailing basic human rights.

To prevent such an authoritarian takeover, and to shore up the foundations of the existing Western-style democracy, the draft document promises the ``full civil and political equality of all citizens, regardless of origin, religion, race, sex, or ethnic affiliation.'' It guarantees the freedoms of speech, religion, assembly, and fair trial with which Americans are familiar in the US Bill of Rights.

These rights, however, would still elude the 1.5 million Arabs living in the Israeli-occupied West Bank, although clearly their plight, and the plight of other religious and ethnic minorities within the Jewish state, were uppermost in the framers' minds.

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``The use of force is a corruptive thing,'' Reichman said. ``Rarely has a democracy in uniform lasted a long time.''

Bitter opposition is expected from the minority of ultra-religious Orthodox Jews, who since the founding of the state on May 14, 1948, have succeeded in imposing religious family law on the vast majority of their secular brethren. For instance, the only marriages officially recognized by the state are those performed by Orthodox rabbis.

This document recognizes for the first time the legitimacy of the Reform and Conservative branches of Judaism, permits civil marriage and divorce, and guarantees equal state protection and funding to all religious groups, whether Muslim, Christian, or Jewish.

``What we're proposing will be enormously painful to the Orthodox,'' Reichman admitted. ``It limits the Jewish nature of the state to symbolic things like the flag, the language, and the law of return,'' he said, referring to the Old Testament admonition that the Jewish people have a sovereign right to live in the land of Israel.

Yet even the minimal references to traditional Judaism caused problems for the US jurists, who acknowledged that they felt more comfortable with the high wall of separation between church and state that is embodied in the First Amendment of the US Bill of Rights.

``Religion is so close to people's hearts that I wonder if a modern democratic society can maintain any religious preference at all,'' said Alex Kozinski, a judge on the Ninth US Circuit Court of Appeals in San Francisco.

Even one of the Israeli panelists, Tel Aviv University law professor Chaim Gans, criticized the document as placing too much emphasis on Israel as a Jewish state ``without saying what practical significance this has for citizens who aren't Jewish.''

Still, everyone agreed that the effort to push these troubling matters before the public for debate is a salutary process.

``I find it very exciting to think about what they're doing,'' said a former California Supreme Court justice, Joseph Grodin. ``It's a terribly good education for us, making us think what we would do if we were advising our own founders.''

It is sheer coincidence that the Israeli draft was finished in the year of the bicentennial of the US Constitution, Reichman said, though the timing was felicitous, because the images of James Madison and Thomas Jefferson toiling away in Philadelphia 200 years ago were foremost in the scholars' minds.

They noted in the Israeli constitution one liberty - the right to privacy - never contemplated by the US framers. On the other hand, US legal experts criticized the ``exception clauses'' in the Israeli human rights declarations that can, for instance, limit various freedoms ``for the protection of state security.''

But in its broad strokes the document more closely than not resembles the American system of government, with its checks and balances and three branches of government.

Specifically, the document espouses what Reichman called a ``parliadential'' system: half British parliamentary and half US presidential. It mandates direct election of the prime minister in order to strengthen the hand of the chief executive; investing the Knesset with investigatory powers and opening up half of its 120 seats to direct elections to make it more accountable to the public; and granting the Israeli Supreme Court the power to strike down legislation as unconstitutional, so that the courts can serve as the last bulwark between the rights of the individual and the power of the state.

Tel Aviv law professor Asher Maoz summed up, ``One of our major revolutionary suggestions - one that will be vigorously attacked by Orthodox circles but which we believe will be fair to both the religious and the nonreligious - is to live and let live.''

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