As the Gregorian New Year approaches and we say goodbye to the 2010s, this past year will undoubtedly be marked as one of the most politically unstable in the short history of the State of Israel. December of 2018 brought the end of the 20th Knesset, and one year and two Knessot later; we still lack a permanent government.
(For reference, the longest it took a democratic country to form a government was 353 days, held collectively by Belgium (2010-2011) and Cambodia (2003-2004). Since the dissolution of the 20th Knesset, Israel has gone over 360 days without one.)
While most of the focus of 2019 has been a game of “who to blame the constant elections”, there are dozens of politically and nationally relevant issues that have gone overlooked. In fact, the time has come for Israelis to begin discussing one of these issue, one that will affect the State more significantly than any political decision made since 1967, and perhaps, 1948.
Israel needs a constitution.
When I say that, I am not saying it through the eyes of an American-born Israeli longing to see an American system pushed onto a Middle Eastern democracy. To be honest, I prefer the Parliamentary Republic system to the bipartisan Presidential Republic of the United States. Rather, I lay my claim on the facts presented during the recent hurricane that has rocked our home for over a year.
To those who pay attention to the indictment trials facing the Prime Minister, one may notice a recurring theme: there is no precedent.
There is no precedent in Israel regarding the indictment of a sitting Prime Minister (although originally accused while in office, the indictments against Ehud Olmert were served 11 months after his resignation).
There is no precedent regarding whether or not that Prime Minister must step down.
There is no precedent regarding whether or not a politician facing indictment can run for Knesset, let alone Prime Minister.
These lack of precedents leaves questions unanswered, questions that our young legal system is struggling to answer at the cost of shalom bayit – peace within the home.
What’s more, the event of Minister of Justice Amir Ohana’s appointment of Interim State Attorney Orly Ben-Ari (who has since declined the offer), further cases lacking precedent have risen. Can a politician appoint the State Attorney when another politician, specifically the party leader, is on trial? Can the Attorney General or the Supreme Court overturn that decision? Who should be appointed as Interim State Attorney when the predecessor steps down?
Right now, the gaps left by these extraordinary circumstances are being discussed both in the halls of our Knesset and our courts, and in the homes of almost every Israeli. Everyone involved is scrambling, and nobody has any idea what to do. All of these questions could be answered with a constitution.
Then again, this is our own doing. This is what happens when the court system is dependent on a series of “Basic Laws” – laws that have been adopted by the Knesset in order to serve as a de facto constitution of the State.
Although these Basic Laws are undoubtedly central to the Israeli legal system, and right now serve as the foundation for many significant legal decisions, they leave far too much room for error – as we have seen in the past year.
The discussion of Constitution vs. Basic Laws are as old as our fledgling State herself. In Israel’s own Declaration of Independence, proclaimed on May 14th, 1948 at the Tel Aviv Museum, it was announced that the State would adopt a constitution:
We declare that, with effect from the moment of the termination of the Mandate being tonight… regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948…
October 1st, 1948 was over 71 years ago. So what happened?
Well first off, war happened. The War of Independence, which had truly begun on November 29th, 1947, reached its culmination the day after David Ben-Gurion declared Israeli independence. It was not until July of 1949 that the war ceased.
After the war, the government of the budding State was finally able to focus on establishing the grounds for a more stable political future. Again, the issue of the adopting a constitution was brought up, only to be rebuffed by Ben-Gurion himself and others in power. It took a member of the relatively small “Progressive Party”, Yizhar Harari, to break the stalemate of the constitution discussion.
In June of 1950, just a year after the end of the War of Independence, Harari proposed that the Knesset form a committee tasked with preparing a constitution that would include individual, basic laws. While the Knesset initially accepted the proposal, the committee was never able to complete a constitution, and instead the enactment of Basic Laws began in 1958 with the first Knesset Law. It took 34 years for these Basic Laws to be adopted in the framework we know them today. In 1992, Chief Justice Aharon Barak solidified the modern status of these Basic Laws by declaring they would hold the power of the constitution in the State.
So, back to the future. We have unprecedented indictments of the Prime Minister of Israel, the unprecedented appointment of a State Attorney, and a series of laws that do little to help us in the modern political climate of the 21st century. And yet, there is a possible solution simply waiting to be redacted.
The time has come to solve our issues – the issues that have plagued our country for too long and left us unable to deal with the legal and political requirements of a democratic country. The time has come to heed the words of the founders of our State.
It’s time for a constitution.