The idea that the Declaration of Independence is a constitution is a complete distortion, analytical and historical. In our constitutional crisis, this delusional idea is intended to mislead the public.The sensational "discovery" of a constitutional basis in Israel's Declaration of Independence is undoubtedly manipulative rhetoric, whose sole purpose is to open the gates of democratic rule to the postmodernist ("purposeful") interpretation of Aharon Barak and his followers, a relativist method that grants the judge almost absolute power to do as he pleases in the law to which he is supposed to be subject.
Three short, general sentences, without any context, conditions, limitations, balances or functional definitions, are an excellent suspension for a domineering legal interpretation that seeks to expropriate sovereignty from the people. This means that when Barak's outrageous method of interpretation is employed on slogans, however uplifting, about freedom, justice, peace and equality in the spirit of prophecy, it opens the door for judges to enact an oligarchic constitution, without the consent or involvement of the people. The same people whose sovereignty is established in a resounding one-sentence paragraph at the center of the Charter: "It is the natural right of the Jewish people to be like any other people standing on its own in its sovereign state." This key sentence is both a conclusion from the historical treatise that precedes it, and also conditions what is said after it – it is the center of gravity of the Charter, to which it converges and from which its practical conclusions emerge, including the establishment of the democratic regime of his "sovereign state" on which Barak wishes to rely.
Barak came to uproot the sovereignty of the people on the basis of an absurd method of interpretation of a document, the core of which determines this sovereignty itself! This is logical and interpretive deception, and it is appalling because many will not understand, except perhaps with a healthy sense, what they are being done here.
Most Israeli intellectuals are simply betraying the public here.
And this is also a historical deception, because there is no basis for the distorted attempt to grant the Declaration of Independence – a fierce and beautiful document beloved by all of us – the status of a constitution beyond establishing sovereignty and affirming identity. David Ben-Gurion, the chief author of the scroll, which was hastily drafted during the war, brought it to the approval of 37 members of the People's Council.
How was that body formed? And can it be considered an elected body, and more for the purpose of enacting a constitution? In light of the Palestinian attack from the end of 1947, the Yishuv was forced to establish a kind of temporary parliament and government.
Their establishment was managed by Mapai, the leading party. In its discussions, it was proposed to hold general elections (for Jews only) in time of war, while the British were still in Palestine and in view of an expected invasion.
This was the suggestion of National Committee Chairman David Remez. But Ben-Gurion and most of his colleagues rightly rejected it. The People's Council and the People's Administration were formed through an agreement between parties, according to the parties' representation in the Zionist Executive Committee and the National Committee, with the addition of representatives of the ultra-Orthodox, Communists (without Arabs) and the Revisionist Right. It was a quasi-representative, but not elected, array of the ethnic group of Jews in the country, and not of the citizens of the country.
There is no basis for the distorted attempt to grant the Declaration of Independence – a fierce and beautiful document beloved by all of us – the status of a constitution beyond establishing sovereignty and reaffirming identity
Therefore, the forefathers and (few) mothers of the nation were authorized to declare that this group, now fighting for its life, was an ancient people and that it was entitled to sovereignty, and only to signal the image of sovereignty. However, the work of the constitution was left to an assembly to be elected in general elections that would encompass all civilians on the eve of the war, and in the end the work was transferred to the next congresses. Barak and his students want to expropriate from the people the sovereignty, which the council was indeed authorized to declare, by means of interpretive falsification as if the council had laid a constitutional basis for the state, an action it was not authorized to do and did not intend to do! The analytical and historical act of rape is liable to "pass" in the current composition of the High Court of Justice (and this is a crying illustration of the necessity to change its composition).
But the Supreme Court's attack on democracy will not be the end of the story. "There is no nation that will retreat from the excavations of its life" and its freedom, as the wise Alterman put it.
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