Days after the Knesset approved the reasonableness standard bill to narrow the Supreme Court’s powers against the government, Prime Minister Benjamin Netanyahu once again found himself on international TV defending his government.
Those opposed to the judicial overhaul claim it will cause Israel to spiral into an anti-democratic, authoritarian regime by usurping the country’s basic checks and balances. On the other hand, those in favor say it will rein in the judiciary, which they say until now has made decisions on partisan and political grounds.
The High Court is set to review the July passing of the reasonableness standard bill in September. If the judges decide to strike it down, Israel would enter “uncharted territory,” the prime minister said.
“The closest we have to a constitution are Basic Laws; that is what we are dealing with. What we are talking about is a potential situation where in American terms, the US Supreme Court would take a constitutional amendment and say that it’s unconstitutional; that is the kind of spiral you are talking about, and I hope we don’t get to that,” Netanyahu said in an interview with CNN.
The prime minister was hinting at one of Israel’s most fundamental challenges: After 75 years without a formal constitution, there is still no complete rule book for Israel’s democratic game. Therefore, Israel is ever teetering on the edge of “unchartered territory,” leading experts told The Jerusalem Report.
Now may be the time to change the situation. Constitutions are usually created at “transitional moments” in the life of a nation: post independence, after a civil war, or the transition from communism to a democratic regime, according to Prof. Yuval Shany of the Faculty of Law at the Hebrew University of Jerusalem.
More than 30 weeks of protests and civil unrest may be just the catalyst for change the country needs, he said.
“Major crises, big events, generate inspiration and have momentum. One of the positive results that could grow out of this difficult time could be a constitution,” Shany predicted.
A brief history
How did Israel manage three-quarters of a century without a constitution?
The story began in 1947 when the United Nations declared that the British Mandate would be replaced by two independent states: Jewish and Arab.
“Based on that resolution, Israel penned its Declaration of Independence, which includes an operative paragraph about what will happen now that Israel is independent,” explained Prof. Hanna Lerner, head of Tel Aviv University’s School of Political Science.
The declaration outlined that Israel would hold the first election for a constituent assembly charged with drafting a constitution for Israel. The election was held in January 1949, and 120 members of this assembly were elected.
In the assembly’s second meeting, it turned itself into a legislature, which Lerner said is not uncommon.
“There are bodies around the world that hold both authorities: to legislate ordinary laws and to formulate constitutional principles or draft a constitution,” Lerner said. “India did the same thing when it gained independence around the same time, in 1947.”
The Knesset started debating what would be the concept of the constitution. Still, the conversation quickly shifted to whether it was the right time for Israel to draft a constitution at all. One of the significant objectors was Israel’s founding prime minister, David Ben-Gurion, who had two major objections to writing a constitution then.
The first was that, at the time, lawmakers were tasked with the urgent need to build a country. Israel declared independence and immediately fought the war of 1948-1949. The economy was in shambles, and innumerable practical needs had to be addressed. Ben-Gurion did not want to spend too much time debating a constitution’s wording in an assembly hall.
Second, there was a democratic argument that the majority of the future citizens of Israel were arriving from abroad, from among the Jewish Diaspora, and they were still not in Israel. Ben-Gurion wanted to wait for their arrival so they could weigh in on the country’s most important document.
Although the Knesset did start the process of writing a constitution, they spent little time on it. And in June 1950, they decided instead to adopt the Harari Resolution, sponsored by Knesset member Yizhar Harari, that stipulated that instead of a constitution, a series of Basic Laws would be created over time by a special committee and approved by the Knesset. Eventually, these laws would be compiled into one document and ratified as the constitution.
“The challenge is that the resolution did not specify the content of the Basic Laws, what the procedure would be for drafting them, or whether or not enacting Basic Laws would be different than enacting ordinary laws. It also did not define a timetable,” Lerner explained.
The first Basic Law was enacted in 1958: Basic Law: the Knesset. Then, more Basic Laws were added to the register every few years after that. Until 1992, Basic Laws generally dealt with structural constitutional matters: the Knesset, the government, and the judiciary.
In the 1980s, when the Likud Party came to power, its leaders tried to enact a Bill of Rights. However, due to opposition by the ultra-Orthodox parties, it was decided here, too, to enact Basic Laws instead. This led to the establishment of two more Basic Laws: Basic Law: Human Dignity and Liberty; and Basic Law: Freedom of Occupation.
“All of the Basic Laws passed with comprehensive consent,” according to Lerner. “None of them was controversial. Even the law of human dignity, the writers took out the principle of equality to get the consent of the religious parties.”
The Basic Laws of 1992 include a limitation clause. This explicit paragraph states that the rights contained in these laws are superior to ordinary legislation in the sense that the Knesset may only pass laws that conflict with these fundamental laws under very particular circumstances. Although not formally included in the Basic Law, it was understood that it was the role of the High Court to strike down any legislation that conflicts with the basic principles within them.
Writing for Azure magazine in 1998, UN Watch executive director Hillel Neuer highlighted the shift in Israeli society with these laws.
“In recent years, the State of Israel has undergone a constitutional revolution that has remarkably escaped the notice of most Israelis,” Neuer wrote. “With the 1992 passage of Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, the power of the Israeli judiciary has expanded dramatically, to include the ability to strike down Knesset legislation that in the Supreme Court’s opinion violates normative human rights guarantees.
“Although the court has yet to play that particular card, every indication is that even if Israel does not adopt a formal constitution, the day is not far off when laws passed by the Knesset will routinely face the review of a Supreme Court charged with the duty of protecting an entrenched set of superseding legal norms.”
But Lerner said that stories of the court hijacking the powers of the Knesset under the leadership of Supreme Court justice Aharon Barak are “unfounded” and a “rewriting” of the narrative of the time.
Next steps
There was one further attempt at completing the Israeli constitution in the early 2000s under the leadership of Constitution, Law, and Justice Committee chairman MK Michael Eitan (Likud).
Shortly after the end of the Second Intifada, over the course of two years, the committee met more than 80 times, held lengthy discussions, invited hundreds of experts, and formulated a draft of the constitution.
“It was not a final draft,” Lerner said. “In the case of specific provisions, the constitutional draft offered different options for discussion and decision to be made by the Knesset.”
The draft was submitted to the Knesset and discussed by the plenary in February 2006. After a lengthy discussion, the Knesset voted on a resolution announcing that the next Knesset would strive to complete the project of drafting a constitution and would enact one based on broad consensus. Elections for the 17th Knesset were a month away. The draft was passed to its newly elected member, and “that was the last time the Knesset had a serious and comprehensive discussion on the constitution,” Lerner said.
Since then, only two additional Basic Laws were passed: Basic Law: Referendum in 2014; and Basic Law: Israel-Nation State of the Jewish People. The first law established a system in which every citizen could participate in historic decisions on withdrawal from territory. The second is anchored in Israel’s status as the “national home of the Jewish people.”
Both Basic Laws were much more controversial than their predecessors.
“We do not have a proper procedure for advancing Basic Laws or constitutional norms,” explained Prof. Ittai Bar-Siman-Tov of Bar-Ilan University’s Faculty of Law, co-chair of the Israeli Association of Legislation and member of the Israeli Law Professors’ Forum for Democracy. “This is a major flaw. In our current system, ordinary politics is inseparable from constitutional politics, which means we are mixing up debates on policy with debates on the game’s rules. Furthermore, part of the reasons for the current crisis in Israeli society is the coalition’s efforts to enact fundamental constitutional regime changes through an expedited process with only the votes of the coalition. Such important constitutional matters should be decided on a proper, deliberative, consent-based, procedure.”
Bar-Siman-Tov is working with his colleagues from the forum on a model draft bill that provides the basis for designing the constitutional process.
“Our idea is that before we decide what the content of the Israeli constitution should be, the more crucial initial step is to agree on the basic rules of the game – through which procedures we should enact our constitution or constitutional norms,” he said.
In their proposal, a new Knesset committee would be formed to design the constitutional process with equal representation by the opposition and the coalition. This committee would have to determine the fundamental preliminary questions in designing a constitutional process: Should the country aim to adopt a comprehensive constitution or continue with the piecemeal Basic-Laws model; Who should draft and who should adopt and approve the constitutional norms? And through what procedures should the constitutional text be drafted and approved?
The plan stipulates that all rules would be adopted by a broad consensus that transcends party lines, both at the committee and in the Knesset plenum. It also includes a provision halting the enactment or amendment of Basic Laws until this process is completed.
Lerner is part of a group of scholars and activists who have spent much of the last four months writing a detailed proposal for establishing a Constituent Assembly.
“Over the past decade, there has been a continuous decline in the status of Basic Laws, as coalitions from both ends of the political spectrum have rushed to rearrange democratic principles to suit their needs,” Lerner and colleagues write in their introduction. “Five election campaigns in less than three years have undermined political norms and led to unprecedented government instability, huge losses of public funds, a significant freeze of government activity, and widespread mistrust among political actors. Even today, after the formation of a new government, public representatives in the Knesset struggle to reach wide-ranging agreements on core issues.
“We propose a way out of the impasse: the formation of a Constituent Assembly, a dedicated and elected body that will consolidate the principles and basic rules of Israeli democracy in a broad consensus of all its factions. This body will lay the foundations upon which the authorities will operate, including the system by which these principles and rules will be amended and updated from time to time.”
The project was initiated by Prof. Netta Barak-Koren of the Law Faculty at the Hebrew University, and its members come from different segments of Israeli society, such as Jewish law researcher and Halacha adviser Rabbanit Dr. Tirza Kelman from Lod; Muslim social activist Ghadir Hani from Acre; Orthodox Rabbi Yosef Kaminer, founder and head of the Institute of Torah Wisdom; philosophy professor Moshe Halbertal from the Hebrew University; and Dr. Yehuda Mimran, faculty at the Mandel Institute and member of the Likud.
According to the document, the assembly would partner with the Knesset and the public. It should also include the broadest possible representation of all communities, religions, and ideological groups constituting Israeli society. “Convening a Constituent Assembly is a rare, perhaps single historical occurrence, and all segments of Israeli society should be represented around the table and heard in the discussion,” they wrote.
The assembly would include 100 members, co-elected by the Knesset and the public. It would have at least 40 women and 40 men, and a quarter of the members would be under 39. Members of the assembly could not be active members of the Knesset or government.
“The Constituent Assembly will examine the regulation of the relations between the authorities in Israel, and in particular will examine and regulate the checks and balances among the three branches of government, the boundaries of the authorities of each of the branches and their composition, and will define the procedure for appointment of judges, cabinet ministers’ qualifications, and the electoral system,” the proposal states.
It adds: “The Constituent Assembly will be authorized to propose constitutional changes in all these areas. The Constituent Assembly will address the relations between the government and individuals and communities and will work to enshrine human rights and define vital obligations that bind the citizens of Israel. In all these areas, the Constituent Assembly will work to develop balanced arrangements that preserve the Jewish and democratic identity of Israel and ensure the prosperity of individuals and communities in Israel and the entire Israeli society.”
The assembly, however, would not replace the Knesset. It could not enact “ordinary legislation,” determine detailed policies on specific issues, allocate funds, make appointments, etcetera.
The assembly’s work, when complete, would be submitted to the people for approval by at least 50% of Israeli voters, and then ratified by the Knesset. If its proposal is not accepted, the assembly would be charged with making amendments.
Lerner said forming such an assembly is relevant, even if a broad consensus is reached on judicial reform. “The Israeli public needs a social contract containing the principles and basic rules of Israeli democracy, even if agreements are reached on the administration of justice,” they wrote in the paper.
Lerner said that her team engaged in extensive research of other countries that offered similar conflicts and did manage to draft constitutions, such as Indonesia, Ireland, South Africa, and India.
Shany welcomed the process and said there was no better time than now. “In a way, Israel missed the boat in the late 1940s and early 1960s, when it would have been ideal to write a constitution,” he said. “The longer we wait, the harder it gets.” ■