Constitution now!
This political crisis highlighted the need for a constitution, and can be the opportunity to do what the Knesset has avoided for the past 75 years.
I read my colleague Seth Frantzman’s article on “chaos theory” with great interest. The general idea is that Prime Minister Benjamin Netanyahu finds opportunities in the chaos of controversy.
For example, out of the uproar over Netanyahu’s plan to extend Israeli sovereignty to part of Judea and Samaria came the Abraham Accords.
I don’t think that Netanyahu premeditates these outcomes. But I do think that, as a skilled politician, he knows how to seize opportunities when they come, and he’s fine with floating test balloons, knowing that if they pop, he always can blame those darn leftists.
To quote Game of Thrones, he knows that “chaos is a ladder.”
What opportunity will come out of the chaos over judicial reform?
Is it too much to hope that it’ll be a constitution? Probably.
When the debate is as ugly as it has been, it’s more likely that any compromise that will be reached between the sides will be something far less ambitious than originally proposed. Still, a constitution would solve many of the problems that both sides have identified.
Therefore, while I could write a long wish list, I will try to stick to politically realistic ideas for what it could entail. I’m also not looking to draft the constitution here. I have the humility to know that there are a lot of people who have spent much more time thinking about this. At the same time, I’ve been reporting on those people and their ideas for over a decade, so I’ve gleaned some insights that I’ll share here.
Israel’s lack of a constitution is at the root of the problems with its overly-empowered judiciary and the problems with restraining it.
A constitution should clearly define the relationship between the Knesset and the courts, eliminating all of the lacunae the current judicial reform seeks to fill without taking a broader view. It does necessarily have to adopt Justice Minister Yariv Levin’s solutions, but it is undeniable that these are issues that must be addressed - and most of the political opposition does not deny that. A constitution would set standards for judicial review and for reversing its decisions - both explicitly and by wont of it being an actual constitution. It would determine how judges are selected, the role of the attorney general, and the meaning of his or her decisions. It ought to clarify the issues of standing and justiciability, which the Levin-Rothman reform does not do.
A constitution would also make basic laws really mean more than regular laws, instead of the current situation in which they are constantly tweaked. The Supreme Court does not have a leg to stand on for judicial review if it says, as it did in 2021, that it can strike down Basic Laws. But its argument that the Knesset treats Basic Laws as it does any others is based on fact. That’s why, though I don’t agree with the Israel Policy Forum’s stance that, essentially, the sky is falling in Israel, I found common ground with its Chief Policy Officer Michael Koplow in this piece, where he writes:
“The problem was not that an alternate prime minister controlling his or her own set of ministers and possessing the same rights as the prime minister is an inherently illegitimate or absurd position. The problem was that people on both sides of the political divide had no compunctions about changing the way in which Israel is governed without thinking through the issue, extensively debating it, working to get societal buy-in, or forming a relative consensus within different political camps. Perhaps worse, all of these elements were bypassed not because of some emergency and not because anyone thought Israel was ungovernable under the existing system, but rather because it was politically expedient to do so and it allowed two politicians at odds to close a purely political bargain between them. It established a standard that the structure and institutions of the state can be treated no differently than ordinary policy or political stumbling blocks, meant to be easily malleable and easily trifled with.
This sets the stage for what we are observing unfold now, which is the government seeking to upend the current system that defines the powers of the government and Knesset relative to the judiciary in the most accelerated manner possible and as if this is a regular policy issue.”
A constitution would not only address the imbalance between the judiciary and the legislature. The debate taking place now is framed around judicial reform, but the current situation in Israel is such that the Knesset is by far the weakest branch of government. As the only branch elected by the people, it should be more empowered vis-a-vis the court and the executive.
This, again, may seem overly ambitious or a digression from the issue at hand, but the Knesset’s longstanding weakness is part of the context in which the Supreme Court’s power grabs were enabled over the decades.
As former MK Michal Cotler-Wunsh put it on twitter this week, the “systemic weakening of [the] Knesset [is] not only in [its] capacity of legislator, but in [its] critical role for checks and balances - to oversee [the] executive branch, among other things.”
The checks and balances between the executive - meaning the prime minister, his cabinet, and the ministries under them - and the Knesset is murky because there is no separation between those powers, meaning that most ministers are members of Knesset.
That is one of the reasons that the Knesset has long been derelict in its oversight duties. Fewer functioning lawmakers means that those who do spend their days in the Knesset are spread too thin between committees and either dedicate themselves to one or two at the expense of others, or don’t give any enough time or energy.
A full “Norwegian Law” requiring all ministers to resign from the parliament, as opposed to the current partial and voluntary version, would create a separation of powers and allow for 120 (or 119, if the law excludes the prime minister) full-time lawmakers more able to oversee the executive.
Other reasons that the Knesset has often neglected oversight are politics and media relations. Politics, in that MKs don’t want to antagonize or criticize members of their own party, lest they all lose out electorally, and media relations, in that proposing bills tends to get them more headlines and thus are viewed as a better use of their time. A constitution isn’t going to resolve that. Electoral reform may resolve the first problem if MKs were to be elected individually and not by list, but that’s a whole other issue for another time1.
As in any other democracy, the constitution would codify and strengthen the rights of the citizens, which is the primary concern of the proposed reform’s opponents.
Opposition leader Yair Lapid wrote on Friday that he wants there to be a constitution based on Israel's Declaration of Independence. This is an idea that was popularized during the debate over Basic Law: Israel - Nation State of the Jewish People, as a democratic counterbalance to the emphasis on Jewishness, even though the declaration itself talks about Jewishness quite a lot and does not use the word “democracy” once, though it does mention equality.
The declaration does not currently have any official legal status.2 The part that those who advocate codifying it tend to emphasize is:
“THE STATE OF ISRAEL…will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations…
WE APPEAL…to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions.”
Israel’s Declaration of Independence is an inspiring text that could be the basis for a constitution, but it’s hard to see it actually happening in Israel’s political reality.
To many lovers of freedom and democracy, the lines quoted above are a given. However, it is a lot more complicated than it may seem. Equal rights are a lofty and worthy ideal, but people have such different ideas of what it means that it could spark discord as intense as what we are currently seeing.
IDF conscription is a good test case for this. Wouldn’t equality under the law mean that Arabs and haredim would have to serve? Or perhaps national service, of the kind that religious-Zionist 18-year-olds and some Arabs and haredim do, would be an option available to all, or by an equal standard for all? Would women and men have to serve the same amount of time in the IDF and would all combat roles be open to women?
I could keep going with the questions.
A realistic compromise is for the constitution to be mostly made up of existing basic laws, including the ones dealing with individual rights: Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. These protests are about the fear that a weak court will enable the Knesset to do whatever it wants and undermine democracy. Including those two basic laws in a constitution would ensure that Israelis’ existing rights are protected, while the aforementioned section on court-Knesset relations would serve to stop the court from overreaching in interpreting this section.
Some key rights, like free speech, would be missing if only existing legal rights are included, but again, I’m talking about what is politically feasible, not my wish list.
I have only seen the political Center and Left propose a constitution in this current debate, but I see no inherent reason for the Right to oppose one.
This is probably no one’s ideal constitution and no one’s ideal solution, but that’s the nature of compromise. It would, however, include steps in the right direction from both sides’ perspectives, which may make it the way forward from here.
If you think I’m right about this, wrong about this, or just have something to say I’d like to read it! Please comment or tweet.
I have written about electoral reform countless times over the years. This is one of the more recent ones. Several parties have proposals on this front that are worth checking out, including Yesh Atid and Yisrael Beytenu, as do think tanks on the Right and Left.