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The Way Out of Israel’s Separation of Powers Morass
When reading news reports about the effort by Israel’s Cabinet to fire the state’s Attorney General, Gali Baharav-Miara, one can rightly conclude: “Same stuff, different day.”
Whether it is the terms of office for key government officials, the texts that the Israeli Supreme Court may properly use when adjudicating disputes over the Knesset’s regulatory powers, or the sweep of the Supreme Court’s powers to invalidate statutes enacted by the Knesset, it is all the same “stuff”: Which body should prevail when there is a principled policy dispute between the Knesset and the Supreme Court and what, if any recourse does the Knesset have if the Supreme Court set asides an action taken by the Knesset? This question recurs, day after day, albeit in new contexts, because Israel’s archipelago of Basic Laws is simply inadequate to meet the most pressing separation-of-powers challenges between the Knesset and the High Court.
Today’s disputes, and the angry protests of hundreds of thousands of Israelis in the streets, follow from the failure of Israel’s First Knesset to draft a Constitution that established clear boundaries between the branches of government. Readers of The Times of Israel will certainly know that Israel’s Declaration of Independence explicitly refers to a “Constitution which shall be adopted by the Elected Constituent Assembly not later than October 1, 1948.” But that never happened. A single written constitution for Israel was never drafted or ratified.
In my view, this failure is the Original Sin of David Ben-Gurion, his Provisional Government and the First Knesset. The current chaos and uncertainty follow directly from the fact that essential line-drawing between the branches of government did not occur 75 years ago; and that work becomes more difficult each day that it is postponed.
Delay, delay and more delay were Ben-Gurion’s objectives in those early days. As he told his coalition partners before the inauguration of the First Knesset: “We have to build houses for immigrants. A constitution we’ll draft when we’re a bit more comfortable.”
As the Knesset’s committee on Constitution, Law and Justice convened to write a document that would draw the country together, Ben-Gurion quarreled with them over the necessity, purpose and priority of such an effort. During an appearance before the Committee on July 13, 1949, he maintained that the principal purpose of a Constitution had already been achieved. The Prime Minister argued that Israel already had a national legislature, cabinet, court system, and presidency. “Many of the things that are called ‘constitutional,’” he argued, “we’ve already determined.”
The key point left unsaid by Ben-Gurion on that day, was that establishing clear boundaries on the powers of the Knesset, or broad acceptance of the idea that there is a category of laws that are superior to ordinary statutes, might limit his own coalition’s freedom of action when guiding the new state. He opposed formal constraints on executive power because he was a man in a hurry.
At bottom, today’s constitutional crises are conflicts over political legitimacy – specifically, who can legitimately establish limits on the powers of the Knesset, Cabinet and Courts? The very best answer to that question has always been: Israeli voters. The way out of an endless series of clashes between the different branches of the Israeli government is two-fold: First, to enact a Basic Law that provides that laws ratified by voters at an election are the highest law of the land and supersede other statutes; and second, to present a series of Basic Laws to the voters for ratification at an election.
While national referenda in Israel are uncommon, they are not unheard of. Indeed, Israel now has a Basic Law on Referenda that it enacted in 2014. It cabins the authority of the Government to make sweeping land deals in return for peace with the Palestinians and is a vital proof of concept. Israel has already begun to do the heavy lifting that is needed in the current moment. The country recognizes that the Knesset, Cabinet and the Courts all serve ordinary Israelis and not the other way around.
Average Israelis are the first and best guarantors of their political freedoms. And they need to step in. Voters need a larger and more regularized role in the political process and are the best positioned to resolve structural disputes between the branches of government.
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