The recent hearing at the Supreme Court where several petitioners asked the court to cancel the basic law legislated by the government to cancel the reasonableness clause, brought up our Declaration of Independence (DoI) and to what extent, or not, it could serve as a basis for legislation in Israel. What is apparent is that the DoI does not, by itself at this time provide the strong legal foundations supporters of liberal democracy have been looking for but rather gives support more along the lines of spiritual sustenance to the resistance movement opposing the legal coup instigated by the government. What sadly enough has also become clear is that by now the DoI that has served us well for more than 70 years, will hardly suffice to hold the country together.
A constitution which the DoI has called for, appears to be the only suitable document to fill in the missing elements to put Israel out of the misery of the ongoing legislative uncertainty and on a clear path towards the future. Unfortunately, putting together a constitution is a rather daunting task requiring a degree of political unity and purpose which doesn’t seem to be available in Israel’s body politic at this time. So while there may well be a “constituent moment” as of yet there seems to be no one around to assume the duty and organize a constituent assembly or a suitable alternative until the resistance movement to the legal coup will pick up the gauntlet..
Regardless, the present friction between the executive and the judiciary will likely not abate until major surgery is performed. The fact that the constituent assembly that was elected in Israel’s first elections in 1949 did already in its 4th session in the same year, decide to forego its assigned duty of writing a constitution and appointed itself Knesset, set the long term path towards the legislative demolition derby we are witnessing now. Unmitigated by a constitution, only by the Supreme Court, the Knesset was free to embark on legislation as it pleased. Over the years, the path of the Knesset (representing the public) and the Supreme Court (protecting the public) diverged as the former became ever more illiberal while the latter remained set on a liberal-democratic path largely representative of the demographic that provided most of the judges.
The basic laws that have been legislated and euphemistically are called by the court “constitution” (even though they are legislated the same way as other laws and can easily be repealed) by today reflect the judges more than the Knesset that legislated them. The friction was furthermore fueled by all our governments’ long term insistence to maintain a belligerent occupation in the West Bank (and to a degree in Gaza), a policy that has contributed considerably to the illiberal tendencies that have developed in Israel. The present totally reckless government and recent legislation inspired by ever more divisive politics brought the conflict that has been in the pipeline for years, to a head.
With many of the legal aspects not sufficiently clear because of the absence of a constitution and a government spoiling for a fight supported by a solid 64 MK Knesset majority to limit judicial oversight, Israel is now on the verge of turning into an illiberal democracy.
While Israel’s parliamentary opposition is sidelined by weak leadership and a vacuous president continues to enable the government, the spotlight is on our widespread and vibrant popular resistance movement which remains the only hope to prevent Israel’s slide into illiberalism by initiating the revolution that can effect the changes needed. In this regard it is gratifying to know that in the mountain state of Nepal, a public resistance movement to the ruling Hindu Monarchy brought down the King, elected a constituent assembly, wrote a constitution that didn’t pass, ran the country with an intermediate constitution, elected a second constituent assembly that passed the constitution and in 2008 established a civil federation in a country of 30 million people with 125 ethnic groups over a period of 10 years . Founding the State of Israel again, with a constitution, is not only necessary, clearly it’s also possible.