For lack of a constitution: Origins of judicial reform crisis

Israeli politics and civil society have been preoccupied with the balance of powers between the Knesset and High Court of Justice since a legal reform plan was proposed by Justice Minister Yariv Levin at the beginning of January. However the challenges of defining the boundaries of Israel’s legislative and judicial branches didn’t begin in 2023, but with the very origins of the state.

Israel’s constitutional process, which has been ongoing since the first Knesset was formed, tells a story of seeking out utility in the moment and of political motives, as well as attempts at compromise and consensus, which have left challenges for future generations to grapple with. These challenges echo in the Knesset committees debates and protest march chants today.

WHY DOESN’T ISRAEL HAVE A CONSTITUTION?

Israel was supposed to have a constitution. This was specifically stipulated in United Nations resolution 181, and in Israel’s Declaration of Independence it was said that it would establish a democratic constitution, explained Yaniv Roznai,

codirector of Reichman University’s Rubinstein Center for Constitutional Challenges.

“This was the original plan, and indeed elections for a constitutional assembly took place in January 1949. However, the constitutional assembly, once it was assembled, received the authority not only to draft the constitution but also to be the ordinary legislator, to enact ordinary laws,” Roznai said. “Because this was the democratically elected body at the time and it started debating the constitution matter, no one doubted the fact that it has the authority to enact the constitution.”

The Knesset declined to act on its constitutive authority for several reasons, said Dr. Guy Lurie, a research fellow at the

Israel Democracy Institute. One argument was that “most of the Jewish people are not here yet,” said Lurie. “We’re establishing a constitution without all of the constituency being involved in this constitution.”

As Prof. Aeyal Gross of Tel Aviv University’s Faculty of Law noted, Israel was built on the legacy of English common law and the British system. There was a feeling among some that a constitution wasn’t necessary when Israel was already a democracy; the United Kingdom didn’t have a written constitution, so it was questioned why it was necessary for the nascent state.

There were other more practical reasons.

“Some people, like [Israeli founding father David]

Ben-Gurion, objected to the idea of a constitution because they feared that if you would have now to sit and debate all the contentious issues regarding the nature of the state, this would cause great division among the people at a time when the nation must be united against different forces,” said Roznai.

Concerns about disunity in particular centered on the religious and secular cleavage, said Lurie. Religious parties argued that the Jewish people already has a constitution, the Torah.

Internal unity was needed in the face of existential external threats – Israel was born into the War of Independence, and for decades had many enemies seeking the state’s destruction.

Lurie said Ben-Gurion felt that “the government needs a lot of flexibility in order to meet these challenges.”

George Mason University Law School Prof. Eugene Kontorovich noted that political self-interest played a major part in Ben-Gurion’s reasoning as well.

“He didn’t see any need to restrain his government,” said Kontorovich. “Remember, [Ben-Gurion’s party] Mapai held power for 40 years.” A constitution would introduce major restrictions to his own power.

Roznai summarized, “So there it was, a mixture of procedural and substantive arguments; and because they could not have reached an agreement in 1950, they simply decided not to decide.”

THE HARARI COMPROMISE

In 1950 came the Harari resolution – after the member of parliament who suggested it (Progressive Party MK Yizhar Harari). According to Gross, it was “to legislate a set of Basic Laws that will eventually be united into a constitution.”

The compromise delayed the decision to form a constitution into what Lurie described “an incremental lengthy process.”

From 1958 to 1992 Basic Laws were introduced, said Gross, “dealing with structure of government like the [Basic Law:] Prime Minister, The Government, the Knesset itself, The President, The Budget, etc.”

However, there were major issues with the process and the Basic Laws themselves.

“They made two mistakes. First, they didn’t say anything about the deadline. By when do we have to finish this constitution-making process?” said Roznai. “And second, they didn’t decide what is the constitutional status, the legal status, of the Basic Laws until the completion of this process.”

The Basic Laws aren’t entrenched, and are passed with the same process as regular law, expanded Lurie.

“Most of the Basic Laws can be revised by a regular parliamentary majority,” he said.

THE CONSTITUTIONAL REVOLUTION

“The big move forward was in the early 1990s with the enactment of the two Basic Laws on human rights, Basic Law: Human Dignity and Freedom and Basic Law: Freedom of Occupation,” said Roznai. “And it is crucial because this was the first time that the Knesset actually limited its own powers.”

The provisions of these laws hold that other legislation cannot contradict them.

“The next important move is the judicial recognition of the constitutional status of these two Basic Laws,” said Roznai. “In 1995 in the famous Mizrahi Bank case, the High Court held that indeed the Basic Laws derive from the connected constitutive authority, that they have a constitutional status, that an ordinary law cannot contradict these Basic Laws. And if there is such a contradiction, the Court has the power to strike down any such laws that contradict the basic ones.”

This is the power of judicial review. Roznai listed other ways that the Court had expanded its power since the 1980s, such as allowing any case and subject to be brought directly before the Court. The Court also gained the power to strike down administrative decisions, if it was determined that they contradicted the “reasonableness” clause, that a government act was beyond the scope of a reasonable and responsible authority. However, Roznai contended that the Court by nature had been very restrained in using these powers, only striking down a small percentage of government actions and largely on noncritical matters.

CONSTITUTIONAL PROCESS LEADING TO PROBLEMS OF TODAY

“What we are seeing now is part of the backlash to that because a lot of the people now would say the inland Supreme Court became too active,” explained Gross. “And [they would say] ‘we want to kind of bring the power back to the people rather than the Court, which is ruling in an undemocratic way.’ I don’t agree with this argument, but that would be part of the argument.”

In the newly proposed reforms, it has been proposed to legislate the disuse of the “reasonableness” clause. The issue of the selection of judges, which was also introduced in a piecemeal Basic Law, is another provision. The reforms seek to increase the number of politicians represented on the selection committee to a majority. The matter of judicial review, introduced as the unguided constitutional process continued, is

a major part of the reform. It was proposed to regulate the power for extreme cases, requiring a unanimous majority of justices.

“The institution of Israeli judicial review, or [former High Court president Aharon] Barak’s claim that there’s a constitution, was built on a kind of a hollow foundation, a big lie. And what’s happening now is that the nature of that legal invention is being revealed, and the edifice is beginning to crumble,” said Kontorovich.

While the Basic Laws were supposedly the basis for the power of judicial review, once right-wing-developed Basic Laws such as the Nation-State Law were introduced, “The Court started saying, we have authority to review whether even a Basic Law or an amended Basic Law is constitutional. Where did they get that authority? I thought the Basic Laws were the highest authority,” said Kontorovich. “And now that we’re finally trying to amend some of the Basic Laws that would involve judicial review, the Court is

saying, ‘Oh, wait, you can’t do that, but wait, the whole thing was based on Basic Laws.’”

According to Kontorovich, the problem is not the constitutional process itself, but the way in which the Court had expanded its powers.

However, Roznai and Lurie argued that the lack of a formalized written constitution that defines the relationship between the Knesset and the judiciary created a lack of legitimacy to the branches’ relationships.

“I think the whole problem is because we don’t have a rigid constitution, there’s a lack of legitimacy for the different branches,” said Roznai. “Every branch tries to think towards its own end. And the very fact that we don’t have acceptable rules of the game is the reason for all the problems. If we had a proper constitution with a proper Bill of Rights and judicial review, 90% of the problems would have disappeared.”

Lurie said that “there’s no Basic Law legislation, and there’s no provision as to how the Court is to conduct

judicial review of legislation. Some of the most basic issues that plague Israel today in terms of the relationship between the judiciary and the other branches of government are still not formulated.” He said “everything is still up for grabs, meaning you can still change the very basic structure of the judiciary or government just with a regular parliamentary majority, because you don’t have an entrenched complete constitution.”

CHALLENGES OF A CREATING A CONSTITUTION IN MODERN ISRAEL

Much has changed since Israel’s independence; many of the issues that prevented the implementation of a constitution then still hold true today – and are compounded by new ones.

“Once politics sort of became divided, and once other parties started getting elected, it becomes almost impossible to agree on the content of that constitution,” said Kontorovich. So it’s easy to say that there should be one in principle,

but in fact it’s very hard to agree on it.”

Gross said the complex security issues still would create concern about implementing a constitution.

Religious and secular parties would be just as hesitant today. According to Gross, a bill of rights might challenge the rabbinate’s power over marriage and enshrine the role of women in society. The Law of Return might also have to be changed.

Kontorovich also said that there is a lack of trust. On the Right, there is the contention that the judiciary is a partisan actor, and a constitution that could expand its powers would be viewed with distrust. Any calls for compromise on a constitution would be viewed with distrust, as the Right feels that the current constitutional process that expanded the court’s powers was ostensibly done without compromise.

Lastly, Gross noted that, once again, there is the matter of utility and self-interest. Basic Laws can be changed, but a constitution would restrict politicians

much as founding fathers feared decades ago.

Kontorovich noted that there had been many modern attempts, often by civil society, to propose constitution drafts or to restart the process, but all had failed.

“I think calls for a constitutional convention are a red herring because this is not a new issue,” he said.

Roznai said that a constitution need not be the goal, and what is needed is a Basic Law on legislation to regulate branch relationships.

WOULD A CONSTITUTION SOLVE THE PROBLEM? MAYBE NOT

Gross and Kontorovich noted that even if there were a constitution, there would still be the matter of who interprets it.

“If Israel would want to have a constitution which says equality, freedom of religion, freedom of speech, everything, of course it all depends on who is a judge and how they interpret it,” said Gross.

Further, Gross noted that a constitution doesn’t preclude a country from inhumanity

if the document isn’t respected. There are bad and good countries, both with and without constitutions.

A MESSY PUZZLE

“I think that would have been the ideal, that instead of trying to reduce the judicial independence of the court, the political parties would come together and try to reach a consensus as to what should be the constitution of Israel,” said Lurie. “How to complete this constitution, how to complete the chapters that are still lacking in Israel’s partial constitution, and doing so in a way that a constitution should be made, meaning not through the regular parliamentary legislative processes, but through a special kind of constitutional process.”

Instead, the current debates indicate that Israel will likely continue with compromise, delays and personal interest, with different Basic Laws pursuing each passed along the way.

“It’s like a puzzle that was never a full picture before,”