Will making it harder to pass Basic Laws help Israeli democracy?
This week, in its final few working days before the summer recess, the 25th Knesset passed a Basic Law on Torah Study, which categorized religious study as a fundamental value of the State of Israel. Although not explicitly likening it to army service, which is required by law, the Basic Law sets the stage for future courts to more easily exempt yeshiva students from the IDF. The law was broadly condemned by opposition politicians, and denounced by IDF Chief of Staff Eyal Zamir. A couple of Likud MKs even voted against it. Still, it passed, with 63 votes in favor and 52 against. Prime Minister Benjamin Netanyahu was notably absent from the vote.
One Haaretz columnist wrote that the law was a “constitutional toy [that] could in future enable a halacha state in the style of Iran or Erdogan’s Turkey” and which establishes a “religious-sectarian supremacy.” Perhaps – in effect, it enshrined an existing religious-sectarian hierarchy into law: ultra-Orthodox men don’t serve, and citizens in Israel are coming under increasing pressure to conform to religious Jewish law, even in the army.
The Basic Law was seen as particularly pernicious because of its legal and symbolic importance. Despite being quasi-constitutional, however, Basic Laws are no more difficult to pass than regular laws. In most other democracies, changing the constitution requires a supermajority in the legislature, as well as potentially other levels of review. In Israel, a simple majority suffices.
As history demonstrates, this is both a feature and a bug. Some of the most seminal pieces of pro-democratic Israeli legislation have been passed with less than half of the Knesset present. The Basic Law: Human Dignity and Liberty – which enshrines most basic civil freedoms, such as freedoms of privacy, expression and protest – passed in 1992 with 32 votes in favor, 21 against, and 1 abstention. The Basic Law: Freedom of Occupation, which codifies the right of any citizen of Israel to any occupation, passed in the same Knesset session with just 21 votes. The first clause of both laws says that “human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.” The implications for this were significant: an explicit statement for life, liberty and the pursuit of work, and an assertion of Israel’s democratic character.
Meanwhile, anti-democratic Basic Laws have recently had far more support: the Basic Law which declared Israel as the “nation-state of the Jewish people,” downgrading all non-Jewish citizens to symbolic second-class status, passed in 2018 with 62 votes for and 55 against. The law prompted outrage, and, similar to the Basic Law on Torah Study, it enshrined in a Basic Law the effective status quo, explicitly placing Jewish ownership of land as a guiding principle of the government, establishing a unified Jerusalem as the country’s capital, and downgrading Arabic from Israel’s second official language to one with “special status.”
In mid-2023, the sitting Netanyahu coalition voted 64-0 to amend the Basic Law: the Judiciary in order to reduce the High Court’s power to review government decisions. The vote prompted months of intense, nationwide street protests against the “judicial coup” in Israel. It was ultimately struck down by the High Court in January 2024, but, arguably, the judicial coup continued regardless. After years of denigrating and delegitimizing Israel’s judiciary and ignoring feeble High Court rulings that didn’t directly contradict their agenda, the Netanyahu coalition said earlier this month that it would openly refuse to comply with a High Court directive. Nothing happened.
Laws, even Basic Laws, work only insofar as they are respected. For example, in 2020, the High Court struck down a 2017 law which sought to retroactively legalize Israeli settlements in the West Bank on private Palestinian property, finding that it was incompatible with the Basic Law: Human Dignity and Liberty. But the settlement-building continued: the current government has approved over 100 settlements since it took office in 2022, both authorizing new ones and retroactively legalizing existing ones, without having to pass a law in the Knesset.
There are ongoing debates about whether strengthening protections for Basic Laws or initiating a formal written constitution would help Israeli democracy. Neither of these has ever seemed propitious: in the past, leniency in the passing of Basic Laws helped usher in some of the most important pieces of democratic legislation in Israeli history. While successive Netanyahu governments have demonstrated that such ease in introducing central legislation is pernicious, it will also be easy for following governments to repeal or amend this legislation. And while constitutional fluidity is precarious, it also means that serious attempts to undermine Israeli democracy can be undone with a change of government – at least, legally speaking.
The set of anti-democratic laws the coalition has approved and still aims to pass before going to recess is nauseating, but could potentially be repealed or amended by a new government. Far harder to undo will be the damage this government has done to respect for the rule of law and trust in the idea of a democratic Israel. Repairing these will be a formidable task.
