An anthem for all nationals
By Shahar Ilan Haaretz 7 July 2005
www.haaretz.com/hasen/pages/ShArtVty.jhtml?sw=hatikva&itemNo=596868

In the future, will the national anthem "Hatikva" include the line "nefesh
Yisraeli homia" (the Israeli soul is aflutter) instead of "nefesh Yehudi
homia" (the Jewish heart is aflutter)? It will if the Knesset accepts the
proposal discussed last week in the Knesset Constitution, Law and Justice
Committee, in the context of the sessions dealing with "a constitution by a
broad consensus." Other proposals raised in the committee were to add a line
to the anthem (which would mention non-Jews), or to compose another, more
civil, anthem.

The discussion, like any committee discussion of the constitution, is
preliminary, and there is a long way to go until the changes in the anthem
are submitted for Knesset approval, if at all. Actually, last November the
Knesset turned the words of the anthem into law, which means that any change
in it requires an amendment in three readings. This is after 56 years during
which the words of "Hatikva" were not protected by law.

The real surprise is that the person who led the discussion on the subject
of changing the anthem is the chair of the committee, Michael Eitan, one of
the hard-core members of the nationalist camp in the Likud. Although Eitan
emphasized that he is not proposing practical solutions, afterwards he
couldn't restrain himself. He said, for example that "if we add another
line, so that even an Arab citizen will be able to say `the Jewish soul,'
but will feel that his own soul is also included in the enterprise that
belongs to all of us, we have to be proud of that if we succeed."

The chair of the Shinui faction, MK Reshef Cheyne, suggested: "We can say:
`the Israeli soul is aflutter,' and that won't harm the song." Eitan pointed
out that the public debate "will be about the identity of the State of
Israel and not about the difficulty of getting used to a new version, if we
come with a proposal to change the word `Jewish' to `Israeli.'"

According to Eitan, "It's difficult for me to say these things, I know what
people will say to me about it, but I see it as part of the war to
strengthen the State of Israel as a Jewish and democratic state.

"On this matter [of the anthem]," says Eitan, "I'm having second thoughts as
a result of the constitution procedure. We now have to give the Jewish state
a constitution that is based on the assumption that it serves non-Jews as
well." Eitan explained that "if I'm an Arab - and I do want to stand at
attention during the anthem, the moment I sing the words `the Jewish soul,'
I get stuck for a moment. Let's take the example of a Druze brigade
commander who has to sing the anthem, and to identify with it as well."
Eitan says the significance of the change in "Hatikva" is that in the
context of the constitution, "in one of the things we share, which is the
anthem, we are also giving a place to those who are not Jews."

Incidentally, Eitan's second thoughts apparently do not relate only to the
anthem. "Israel is now undergoing a tremendous process of soul-searching,"
he said. "Take me, take the Likud - I hear MK Uzi Landau at a meeting of the
Likud faction saying, `I also support a compromise that will require the
uprooting of settlements and territorial compromise,' I look at the
decisions being taken by the Likud; gentlemen, this is a historic moment.
There is a process of soul-searching taking place."

Prof. Ruth Gavison, who has recently been mentioned as a candidate for the
Supreme Court and who participates regularly in the proceedings of the
committee on the subject of the constitution, suggested: "We can add a
neutral anthem. We can have both `Hatikva' and something neutral, too." This
suggestion has also been made in the past by former state comptroller Miriam
Ben Porat. In another session of the constitution committee, this suggestion
was also supported by Yusuf Jabarin, a member of the Musawa Center for Arab
Rights in Israel, who said that "the State of Israel can be a Jewish and
democratic state even if there is another, civil anthem written for the Arab
community."

MK Roni Brizon of Shinui is not a member of the committee and did not
participate in the discussion, but he has a somewhat different suggestion:
to add a stanza in Arabic to "Hatikva," with which Arab citizens will be
able to identify and which they will be able to sing.

The chair of the coalition, MK Gideon Sa'ar, has an entirely different
viewpoint. In reply to the question as to whether he is willing to
compromise on the subject of the anthem, he replied at a committee meeting:
"In a word: No. In two words: Absolutely not. I wouldn't make any change in
`Hatikva.' It's compromising on the identity of the country."

Eitan's great efforts

The discussions being conducted by the Knesset Constitution, Law and Justice
Committee on the subject of a constitution by consensus are one of the most
interesting and serious processes being conducted in Israeli democracy. This
is because even if, as expected, there won't be a constitution in the end,
committee chair Michael Eitan has been investing particularly great efforts
in the most recent sessions in an attempt to include the Arab community in
the discussions, after 80 sessions in which there was mostly an intra-Jewish
dialogue. He has even expressed a willingness to conduct sessions of the
committee in Arab communities and to invite to these discussions the Supreme
Arab Monitoring Committee. Eitan explains that the committee is collecting
proposals for the constitution. "Among all these proposals, we also want to
bring the proposal of the Hadash faction, of one Knesset member or another,
of Musawa."

But the Arab community is not demonstrating any great enthusiasm for the
process that will anchor the idea of the Jewish state in a constitution.
Jafar Farah, the director of Musawa, suggested in one of the meetings that
instead of a constitution, we should try "to create a civil convention that
will recognize both sides, without coercion." Azmi Bishara (Balad), a member
of the constitution committee, who is also far from enthusiastic about the
constitutional process, sees a positive side to it as well. He said in the
committee that "the constitution has spurred the Arab population to discuss
issues that have been floating in the air all the time, but that we never
bothered to formulate. If the constitution spurs these intellectuals, and
the associations and organizations and MKs, to discuss among themselves what
we want - that's already a good thing."

Another community that has serious reservations about the constitutional
effort is the national religious public. Last week, the Tzomet Institute for
technology and halakha held a conference of religious Zionist rabbis, as
well as several experts on Jewish law, in order to formulate a fitting
response to the constitutional danger. One reason for this conference was
the request of National Religious Party chair Zevulun Orlev for a rabbinical
opinion about the "constitution by consensus" proposal made by the Israel
Democracy Institute, and about the Knesset discussions on the subject of the
constitution.

In the summation that they published, the rabbis say that "the proposed
bills, as they are being presented currently to the public, are not
acceptable to us, because in principle and in their details, they undermine
the concept of `the Jewish state.'" The rabbis had difficulty deciding
whether to prepare a constitutional proposal of their own. In the end, it
was decided to make do with a document of reply to the proposal of the
Israel Democracy Institute. In this document they will define the Jewish
state in the spirit of the values of religious Zionism, as well as proposing
amendments to the institute's proposal. The constitutional procedure is
therefore forcing the national religious public, like the Arab public, to
clarify for itself quite a number of difficult questions.

Constitution without the High Court

One thing to which the rabbis will probably object is the statement to the
effect that the constitution is based on the principles of the Israeli
Declaration of Independence; they will also ask to limit the principle of
equality. The constitution of the Israel Democracy Institute proposes that
the High Court of Justice not be allowed to discuss certain topics in the
realm of religion and state, such as Shabbat, conversion, marriage and
divorce, et al. On the other hand, additional religious legislation will be
prevented. This compromise is not satisfactory at least to some of the
rabbis and experts. Rabbi Dr. Itamar Wahrhaftig, who teaches Jewish Law at
the Bar-Ilan University school of law, is opposed to the sweeping
prohibition against religious legislation.

No less - and perhaps much more - than the rabbis were concerned about the
content of the constitution, they were preoccupied with the question of who
will interpret it, and particularly, who will not do so. The decisions of
the conference include the assertion: "We will not be able under any
circumstances to accept a constitution whose interpretation will be in the
hands of the High Court of Justice. It is imperative to form another
authoritative body that will include people from all strata of the public
and that will defend the constitution as it was accepted."

Prof. Berachyahu Lifshitz a teacher of Jewish law at the Hebrew University
in Jerusalem explained why a constitution is preferable to the present
situation. "We need a constitution. We need rules of the game, not like
today, when the court decides." Shaar Yashuv Cohen, the rabbi of Haifa;
Yaakov Ariel, the rabbi of Ramat Gan, and Rabbi Haim Druckman, head of the
Or Etzion Yeshiva, all three of them leading national religious rabbis, said
that "we cannot allow the High Court to be the body to decide on
constitutional issues; that should be done by a public committee."

Ariel said that "the committee has to represent the public, and not the
Knesset." Cohen said that there has to be "proper representation for the
rabbis as well," on the committee. Daniel Shilo, the former rabbi of the
settlement of Kedumim, said the committee must include "not necessarily
legal experts, but more intellectuals. We must demand recognition of the
fact that a legal expert is not necessarily a philosopher."

Until the rabbis finish preparing their document, they "request of anyone
who is able to do so, to postpone the discussions of the constitution until
our proposals are made and discussed with the proper attention." They also
point out - after the Israel Democracy Institute has already completed its
work and the Knesset constitution committee has already held 80 sessions on
the subject of the constitution - that "there is a reason and a need to have
legal experts who are observant Jews involved in the Knesset and in its
committees during the discussions on this subject, for the benefit of the
issue." That is what is meant by better late than never.