A New Brick in the Foundation for a Constitution

With the Supreme Court set to review the “legality” of the new law that limits the Supreme Court’s use of reasonableness doctrine, various experts and laypeople are raising the alarms over how this will create a “constitutional” crisis if the court strikes down as unreasonable, a law that limits the court’s ability to strike down laws as unreasonable. Of course, I put the word “constitutional” in quotes because Israel has no constitution. So all the talk of constitutionality and legality of what the court can do has always been a game of smoke and mirrors to create the look and feel of a constitutional democracy without there actually being one.

The Knesset created itself and then gave to itself the sole power to legislate and make law in Basic Law: The Knesset. It then created the Supreme Court and gave it certain powers to review those laws in Basic Law: The Judiciary. The court, in turn, gave to itself additional powers to strike down laws created by the Knesset that it evaluates to be unreasonable when measured against legal doctrine found outside of Israel in other democracies around the world–creating a safeguard for democracy, or a scourge against democracy, depending on what corner of the political field you pitch your tent. There is no other political body with authority to arbitrate between them, so they are locked in a perennial power struggle. When there is not a looming election, the Israeli people can only gather in the streets in protest to support one side or the other, to serve as a bad proxy for a non-existent third branch of government that the Knesset forgot to create.

Enter the current crisis over the Knesset’s attempt to impose strict limits on the Supreme Court’s application of reasonableness doctrine, so that the Knesset can be free to legislate however it wants to with little check on its power.

Most of the public discussion orbits around the idea that the Supreme Court can either uphold and accept this amendment to Basic Law: The Judiciary and accept a strict limit on its own power, or reject it and create a crisis that will push the country into a civil war that will be the end of Israeli democracy, as some argue will happen.

But what if the court takes a different approach in reviewing the case that can help further lay the foundation of a real Constitution?

Perhaps the Supreme Court could instead issue a ruling that sends the amendment back to the Knesset for reconsideration, and at the same time defines reasonable boundaries for itself on how it can review Basic Laws. This could create a compromise position that opposing forces in the Knesset have been unwilling to create together, and may just be able to thread the needle and move Israel toward a stronger constitutional foundation. In doing so, it would not necessarily reject the merits of the amendment, but instead would declare that anything resembling a constitutional article or amendment requires broad support, and at the same time would clarify some separation of powers between the Supreme Court and Knesset.

The court could rule that creating or amending Basic Law requires a greater number of votes in the Knesset. They could, for example, issue a ruling that will:

Confirm that any law passed by a simple majority (50+%) cannot be considered a Basic Law. For a Basic Law to have the legitimacy of something resembling a constitution, it must have stronger support. A law that only has support below a defined threshold can only be considered an ordinary law.
Set a two-tier threshold standard for Basic Laws:
The lower tier requires a minimum 4/7 Strong Majority to enact or amend a Basic Law. If it is enacted with a 4/7 Strong Majority vote in the Knesset, then a 5/7 Super Majority of all Supreme Court members is required to strike down any element of that Basic Law or amendment. We can consider this a Reviewable Basic Law.
The higher tier requires a minimum 5/7 Super Majority vote in the Knesset when enacting or amending a Basic Law. When this very broad support is achieved in the Knesset, the Basic Law is out of reach of judicial review and can truly be treated like an article or amendment in a constitution.
4/7 Strong Majority = 57%
5/7 Super Majority = 71%
If the Knesset were to do itself a favor and change its composition to an odd number of seats–119 members instead of 120–then 4/7 is exactly 68 votes and 5/7 is exactly 85 votes.

Without a constitution, the current Knesset / Supreme Court relationship depends on mutual cooperation and agreement, which works so well because Israelis are just so good at getting along and agreeing on things. Since the Supreme Court was created by the Knesset, the Knesset has taken on the attitude of I created you and I can destroy you. Like a bad parent saying to a child, I brought you into this world and I can take you out of it. This does not make for a strong democracy. The Supreme Court is not the Knesset’s child, and it needs to affirm that it’s an independent body with the power to review the fairness of law and relinquish laws it judges to be unfair.

I support reform to clarify strong separation of powers, and that must go both ways: there are things the Knesset can do that the court cannot tinker with, and things the court can do that the Knesset cannot tinker with. That is the only way you have a balance of power. All of this will still be a makeshift patch on the bigger problem of the lack of a constitution. Earlier this year I posted a draft Constitution that contains the framework of using 4/7 and 5/7 majorities and creates co-equal branches of government with a clear separation of powers. That was an early draft with wrinkles that needed to be ironed-out, so I ironed-out those wrinkles and made an updated version. In the constitution, a third branch of government is also created to give power based on geographic regions. The power to create law still resided in the Knesset, but this third branch has the opportunity to veto legislation it doesn’t like, before it becomes law. For historical connection to ancient Israel, the third branch is call the Sanhedrin, and it is also responsible for appointing Supreme Court justices. In addition, in the constitution the Supreme Court has a clear legal framework with which it can evaluate laws created by the Knesset.