Massye Kestenbaum

Israel Needs a Constitution

The Supreme Court in the foreground and Knesset in the background. Note the path connecting the two - the source of tempest that has swept up the nation. Credit: Wikimedia Commons.
Israel's Supreme Court, Knesset, and the path connecting them to each other. Credit: Wikimedia Commons

Israel at a Crossroads

There are many facets to Israel’s new government that have led to jubilation or despair, excitement or fear, depending where on the political and social map one finds themselves. Perhaps the most significant of the government’s plans, and likely one that will have the longest-lasting impact on the country is the so called ‘Piskat HaHitgavrut’, or Override Clause. The Clause will establish the Knesset’s ability to disregard the Supreme Court’s rulings per its laws, leaving the legislative branch the sole arbiter of the law throughout Israel. The Supreme Court, which has in practical terms served as a liberally oriented backstop to laws pushed by the right-leaning Knesset over the past three decades, will retain its mandate to determine cases according to the laws passed by the legislature, but officially lack authority to weigh in directly on the legality of the actual laws themselves.

To the left of Bibi: Justice Minister Yariv Levin, chief architect of the legal reforms expected to be pushed through this week. Credit: Likud, via The Times of Israel.

Israelis from the political right-wing view the Override Clause as strengthening Israel’s democracy, enabling lawmakers to pass laws supported by the electorate, without them being nullified by an ‘unelected’ court. Those on the political left-wing see the proposed law as effectively removing one of Israel’s few governmental checks and balances, leading to a ‘Tyranny of the Majority’. Both sides are convinced by the righteousness of their cause. However, to better appreciate the crossroads at which Israel finds itself right now- and how we might best proceed- it would be helpful to look back at how we got here.

The Backwards Establishment of Israel’s First Government

Upon the founding of the State of Israel on May 5th, 1948, the country was flung into war. The civil war between local Jews and Arabs metastasized into a regional war between Israel and Egypt, Jordan, Syria, Lebanon, and Iraq. The beleaguered provisional government – unelected – set out two priorities: win the war on all fronts and draft a constitution that would determine the system of governance the nascent state would adopt. And so it was, that on January 25th, 1949, Israelis went to the polls for the first time in Jewish history, to elect delegates to a Constitutional Assembly. Much like the members of America’s Constitutional Convention of 1787, these delegates were not intended to serve as members of the legislature. Rather, they were voted in to create a constitution and were then to disband, at which point a new election would be held for parliamentary membership.

Chaim Weizmann voting in the election for the Constitutional Assembly, Jan. 25th, 1949. Credit: Wikimedia Commons.

Almost immediately after convening for the first time, the Assembly devolved into constant bickering, making it impossible to progress. Still in the midst of the War of Independence, the electees instead decided to recast themselves not as constitutional delegates, but members of the legislative branch. They renamed themselves ‘The Knesset’ and retroactively turned the previous election into Israel’s first parliamentary election. While this move is debated by legalists until today, it was de facto accepted by the Israeli people, and the Knesset has governed the country since then. Not wishing to abandon the authorship of a constitution entirely, Ben Gurion established a parliamentary Constitution, Law and Justice Committee, whose members would, at an excruciatingly slow pace, prepare a constitution section by section. Each individual law would be legally adopted as a ‘Basic Law’ (Chok Yesod), and when the draft was finished it would be ratified as a complete constitution. Seventy-three years on, there is no clear end-date in sight.

Thus, Israel was established as what is known as a ‘Totalitarian Democracy’ (see note below). No legal requirement bound the Knesset to disband and hold new elections (or do anything else for that matter). The fact that Israel established a democratic tradition is thanks solely to the goodwill of the legislature in stepping down. Had Ben Gurion wished to scrap elections, raise the tax rate to 100% or anything else on his mind, the only thing stopping him (assuming he had the parliamentary votes) would be resistance on the street. No clear definition of the limits of the Knesset’s authority was provided, and no checks on its power existed.

The Supreme Court was established, actually predating the Knesset, but remained without a constitutionally defined role. Thus, during Israel’s earliest years, the court essentially served as the highest appeals court in the country. However, it rarely challenged the legislature’s authority, adhering to a strict definition of justiciability, i.e., the perception of what matters it could and could not decide the law on. In fact, on a few occasions, the court openly stated that it did not seek to oppose the laws on the books.

Israel’s Ninth Knesset in action, 1969. The lawmakers held all the authority, with no checks on their power. Credit: Wikimedia Commons.

The most outstanding example of this posture is the Rogozinsky case of 1970, in which two Jewish atheists petitioned the court to permit them to marry in civil ceremony under their right to freedom of religion. Their petition was denied, given the law mandating marriages in Israel be administered by religious leaders only. Thus, despite the Freedom of Religion guaranteed in Israel’s Declaration of Independence (which has more recently been treated by the court a quasi-constitutional document), the Supreme Court of the first four decades of Israel’s existence saw itself as mandated to interpret the laws established by the Knesset, not knock them down.

Aharon Barak’s Constitutional Revolution

Two major developments occurred in the early 1990’s. The first was the passing of Israel’s Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. Until this point, almost all of the Basic Laws passed by the Knesset’s Constitution, Law and Justice Committee were related to procedural matters. For example, Basic Laws enshrined the authority of the State to print its own currency (1975) and subordinated the IDF to the government (1976). Additionally, it was not clear what exactly differentiated a Basic Law from a regular law passed by the Knesset. Sure, they would eventually enter Israel’s Constitution. But they were not explicitly given constitutional status when they were passed individually. Thus, the passing of Israel’s Basic Laws for Human Dignity and Liberty (1992) and Freedom of Occupation (1994), were seen as largely symbolic.

The passing of these Basic Laws coincided with the rise of Aharon Barak to the Presidency of the Supreme Court. A genius of jurisprudence, Barak became a law professor at Hebrew University at age 31, served as Attorney General from 1975-1978 and sat on the Supreme Court from 1978-2006, serving as its president from 1992. Barak championed an activist approach, nothing short of a revolution for the generally passive judiciary. However, his most important position was outlined at the same time the new Basic Laws were adapted.

Aharon Barak. Credit: Yossi Zamir / Flash 90.

Addressing a contentious case (Mizrachi Bank vs Migdal Cooperative Village), Barak noted that both recently adopted Basic Laws shared a mutual clause permitting their suspension, ‘by a law befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than required’. In other words, the Knesset reserved the right to override its own Law for Human Dignity in extreme circumstances, for example in cases pertaining to national security. A classic case of defensive democracy (the restriction of individual freedoms for the sake of the greater good), Barak wondered who exactly was expected to determine whether a various law conflicted with the Law for Human Dignity or not? Clearly, he reasoned, this was a role intended for the Supreme Court to fill, and the Basic Law was codified with an implicit superiority above other laws, elevating it to a constitutional standing. Thus, Israel’s ‘Constitutional Revolution’ (Mahapecha Chukatit) had begun. The Supreme Court henceforth declared the authority to reject Knesset legislation if it did not adhere to the Law of Human Dignity (as well as Law of Freedom of Occupation).

To be clear – there is no law clearly outlining the court’s assumed ability to overrule the legislative branch. Nor is there anything on the books that explicitly negates the court’s ability to do so. Justice Barak simply interpreted the law a certain way and asserted his understanding. He pulled off his Revolution because the Israeli people – both, those in the halls of power and those on the street – went with it. Since its founding, Israel has lacked a clear definition outlining the exact role, powers and authority of its judicial branch. Does Israel have a (semi) constitution? It depends on who you ask.

The Fracturing of Israeli Society

As a result of the Constitutional Revolution, Israel’s Supreme Court became one of the most activist judiciaries in the world, rejecting countless draft laws from the legislature. Many on the left saw Barak and his successors as the vanguard of liberal values in Israel, the only real obstacle to the trampling of minority rights and equality. Many on the right became increasingly frustrated by ‘unelected’ officials (judges are selected by a committee made up of both politicians and bureaucrats) nullifying the aims of democratically elected politicians. The left would respond that democracy is not simply the right of citizens to vote, but rather a commitment to liberal values (such as those outlined in the Basic Law), as well as a governmental system of checks and balances which the Court now provides.

With the increased polarization of Israeli society (paralleling a trend seen in democracies across the world), partisan politics reigns supreme. The right is willing to bet that in an era of brinksmanship, the taboos surrounding the Court’s three decades of legal precedent have declined enough that their reversal of the Constitutional Revolution, a revolution in its own right, will be accepted by the Israeli electorate. There is nothing strictly illegal about the Override Clause. Its greatest sin (beyond returning Israel to being a Totalitarian Democracy) is that it breaks with established norms. The left is arguing that this is a step too far and the right is acting in bad faith at the cost of one of the State’s only checks and balances while the right counters that their actions are within the boundaries of the law, and the backstop of the Supreme Court exists only due to their usurpation of power.

Opposition Leader Yair Lapid and Minister of Finance Bezalel Smotrich enaging in lively debate. Credit: Yonatan Zindel / Flash 90.

Herein lies the crux of the issue. Already, members of Israel’s left are calling the intended legislative blitz a ‘coup’. However, it is no more of a coup than the revolution pulled off by Barak 30 years ago. The left has vowed to simply erase all the right’s policies once it returns to power – just as the right is currently doing to the left’s legislative achievements. This is one thing when it comes to smaller legal matters. However, the foundations of Israel’s democratic structure should not be mere campaign slogans, trapped on the never-ending seesaw of political malice. Without a constitution clearly delineating Israel’s system of governance and establishing agreed-upon checks and balances, Israelis are doomed to be ruled once again by a Totalitarian Democracy. A constitution would help secure Israel’s future survival as a united, Jewish and democratic state, especially as we face ever-increasing polarization thanks to the proliferation of social media echo-chambers with their manufactured culture wars and constant bombardment of partisan news.

I am not naïve. I doubt that such a venture will be undertaken any time soon. It would require politicians to give up their own power, a radical act of placing country before oneself. I do not believe our society is any more united than it was in 1949, when the first attempt at authorship failed. Moreover, a constitution is not a silver bullet. Political divisions are rife in countries across the West. However, I also believe that Israelis are far more united than divided. The act of constitutional composition can be a healing process that lowers the flames of extremism, highlighting the values we share and the compromises we are willing to make. We are a tribal society and will remain one. The secret to success of such a society, emulating Singapore as opposed to Lebanon, is recognizing our interdependency, celebrating our similarities, and accepting our differences. If a groundswell of unity-despite-difference is forced onto the politicians from the people below, it may just yield Israel’s Second Constitutional Convention, and stability for years to come.

Note: The term ‘Totalitarian Democracy’ was coined by Israeli Professor Jacob Leib Talmon. Presciently, he wrote, ‘The history of the last one hundred and fifty years looks like a systematic preparation for the headlong collision between empirical and liberal democracy on the one hand, and totalitarian Messianic democracy on the other, in which the world crisis of today consists’. The more things change, the more they stay the same.

About the Author
Massye Kestenbaum is a Judaica specialist and licensed tour guide in Israel. Working at Kestenbaum & Company - a family-run auction house of rare Judaica - and guiding groups through the Holy Land, he encounters people, artifacts and places from all corners of the Jewish historical experience.
Related Topics
Related Posts