What are the chances Israel could have a constitution?

LEGAL AFFAIRS: The creation of a constitution is plagued with its own share of disagreements and challenges.

 DAVID BEN-GURION reading the Declaration of Independence of the State of Israel.  (photo credit: GPO)
DAVID BEN-GURION reading the Declaration of Independence of the State of Israel.
(photo credit: GPO)

There’s a sizable train of thought out there that suggests that the current judicial reform political crisis in Israel could have been circumvented and could still be solved by the introduction of an Israel constitution.

But with a country as diverse as Israel, with its varied populations, interest groups, and considerations, the creation of a constitution is plagued with its own share of disagreements and challenges.

Some of these problems have persisted since the founding of the state, and others have been exacerbated by the current political divisions. The bottom line is that everyone would want something different from a constitution, and there could never be a clear consensus. Key principle, political, and structural debates need to be addressed if Israelis decide to continue the constitutional process.

A basic law problem

For a variety of reasons, no constitution was developed in the nascent State of Israel . At its dawn the state was under threat from all sides from hostile neighbors, and leaders wanted to avoid any infighting. Some believed that a constitution would limit their personal political power, and others didn’t believe such a document necessary; after all, the United Kingdom didn’t have a formal constitution.

Israeli politicians applied the typical Israeli policy for contentious issues, kicking the can down the road. The Harari compromise was introduced, in which the Knesset would legislate quasi-constitutional Basic Laws that would detail the key elements of the state and its branches. At some indeterminate point in time, the Basic Laws would be assembled into a constitution. Yet this building block for the creation of a constitution has become a hurdle in its own right.

 The declaration of independence on the Tel Aviv city hall. (credit: ILAN SAPIRA)
The declaration of independence on the Tel Aviv city hall. (credit: ILAN SAPIRA)

“Since the 1950s the Knesset has passed several Basic Laws in a few areas regarding the issues that the constitution should deal with,” said senior Israel Democracy Institute fellow and Ono Academic College law professor Amichai Cohen. “In terms of the structure of government, we are actually lacking only one component. Some people say it’s the most important component of a constitution, the Basic Law: Legislation.”

Basic Law: Legislation would establish the rules for how to adopt and change Basic Laws, which currently don’t have a special means of voting for them that separates them from regular laws. They also lack an innate supremacy over ordinary legislation.

Kohelet Policy Forum International Law Department Director Prof. Eugene Kontorovich said that “the basic idea of a constitution is that a constitution is a kind of fundamental commitment of a broad swath of society, a deep commitment which gets to override ordinary laws.”

The difficulty with such a commitment, explained Kontorovich, is that the dead hand of past laws set can hold a grasp on a society for decades, and there is a question of how they can restrain the democratic will of the present.

“The traditional American constitutional response to that dead hand problem is that the constitution is superior to an ordinary law because it was taken through a superior process – namely, that it has a supermajority behind it,” said Kontorovich.

Kontorovich argued that the “original sin” that confounded Israeli constitutional law was in the 1990s, when the High Court of Justice constitutionalized Basic Law: Human Dignity and Liberty by interpreting it as having super-legal status, even though it was passed with a simple majority. The importance of having a supermajority to entrench the Basic Laws has only been selectively recognized when convenient, he said.

Constitutional law expert and Hebrew University of Jerusalem law professor Barak Medina noted that Basic Law: Legislation was discussed during judicial reform negotiations at the President’s Residence as part of a two-stage process.

“This is something that is essentially just establishing the status quo regarding the way amendments can be made or even regarding forming a new constitution,” said Medina. “The idea was that we should set first the process in terms of the overwhelming majority that is needed to make a change.”

Medina said that the first step was to agree on a process, on how to achieve a qualified majority, something that was not agreed upon. The process itself may also need to be considered, according to Cohen. The current process was being rethought by both the Right and the Left.

“Our tradition is that the Knesset adopts Basic Laws. And this tradition, this is the major question. Is there a need for a different process? Is this still working?” said Cohen. “If you want to complete the constitutional project, who should be the institution that completes it? Should it be the Knesset? Should there be a different assembly constituted in another way, and at the end of it, some kind of popular approval of it by the people? I think the process right now is more of an issue than the content [of a constitution].”

Who interprets the constitution?

Kontorovich suggested that perhaps a new constitutional court should also be introduced. He noted that the US Constitution established the Supreme Court. He said that a constitution might magnify the powers of the current judiciary, and that a new document wouldn’t help if the same judges were interpreting it as the Basic Laws.

Cohen assessed that one of the major problems in the creation of a constitution, beside principle and political issues, was trust in interpretation of the document. Selection of judges, and the role of the court in the reviewing and adopting of constitutional articles, are always a challenge, but have also become the heart of the current judicial reform debate.

“Many people on the Right say they can agree to come to reasonable consensus regarding a constitution. However, they require a change in the composition of the High Court first before they agree, because the effect of a constitution, of course, is the ability to strike down laws that are in violation of the constitution,” said Cohen. “They have problems with the institution interpreting documents. So once they say change the composition of the court, then they can agree to a constitution.”

Kontorovich said that “if there’s a sense that the judges are not just on one side, [that] both the Left and the Right have equal representation in the selection of judges, that the judges are not part of one of the [political] camps, then they could be treated as fair interpreters for a future court.”

Political lack of interest

The problems are not just structural, as Kontorovich highlighted with the orientation of the judges. Power politics also offers a major impediment in creating the will to develop a constitution.

Medina said that in general, “It’s very hard to reach an agreement when each of the political parties have their own agenda, their own interest, and seek their own political power.”

The coalition rejected proposals at the President’s Residence to entrench the Basic Laws with requirements of a supermajority, he noted.

“The current coalition refused to accept this idea,” he said. “They want to use their majority to make changes to the Basic Laws and therefore it was not advanced.”

Cohen explained that a general problem in introducing a constitution is that it creates a political scenario in which changes are much more difficult to make.

“A constitution has the effect of freezing the current situation. Of course, there is part of the polity that feels that its position will be better in the future and does not want to freeze the current situation,” said Cohen. “I think it [a constitution] was not very important in public debate until the recent months, so there was no political pressure on [politicians] to come to any conclusion. So this was also a reason: There was no political benefit to be gained.”

Kontorovich said that “at varying times different sides might think that it’s going to be at a disadvantage. To make the constitution work, you need everyone to think they’re getting a fair deal, that it’s going to be at least an improvement on the status quo for them. And that’s impossible to do in the current circumstance.”

Enshrining equality

A sense of fairness might be needed at the political level, but it’s also at the heart of a content debate as well.

“The main reason for not having a constitution back in 1948 is the same reason that applies now, and this is lack of support among the Jewish population to the commitment to equality,” said Medina. “It was included in the Declaration of Independence, but the leaders at the time and the current leaders have not been willing to take upon themselves this commitment to absolute equality between Jews and Arabs, between men and women and other aspects.”

There are components of equality that people could agree on, said Cohen, and it is possible to put it on the table. Matters of principle that would be in the content of the constitution are another of his three major constitutional challenges for Israel.

“One person, one vote, for example, I think is not disagreed on,” said Cohen, but aspects with wider implications are more contentious – e.g., “whether the principle of equality should include certain issues like equal rights or group rights, and about the rights of LGBTQ.”

Medina said that there is agreement that there shouldn’t be discrimination against minorities, but on the other hand Israeli leaders didn’t want to commit to this by writing it down.

“Currently, the government wants to get rid of this commitment to equality by judicial reform, not by enacting a new constitution or changing the Basic Law,” he said.

Who is the constitution for?

Medina said that the matter of equality for all citizens, and how non-Jewish people are treated, are part of a lack of overlapping consensus on the basic elements of Israel and its constitutional identity.

“The Arab minority, about 20% of the population, all in all reject the notion of a Jewish state, even in principle,” said Medina. “At the same time, there is substantial opposition to the notion of equality that Israel, the government, should treat all citizens, Jews and Arabs, as equal.”

There are other aspects of how broadly the constitution should apply beyond rights. It is not just a question of to whom a constitution would apply, but where.

“What is the status of the West Bank? What can be done there? What are the borders of Israel?” asked Medina. “It’s hard to define a government constitution without borders or without deciding the status of the settlers or Palestinians who live there [the West Bank].”

Can the challenges be overcome?

With all these major challenges, it seems that a constitution is as far away now as it was in 1948 – or perhaps an even more remote possibility.

Kontorovich is skeptical of a constitution being achieved without addressing underlying issues with judicial reform. A constitution is not a panacea that could solve Israel’s problems of deep political divisions. After all, the United States has a constitution and still suffered the polarizing events of the January 6 and Black Lives Matter riots. Calls for a constitution were largely tactical, to distract from the issues at hand, said Kontorovich. The only way he could see a constitution implemented in the near future is if the opposition wins a sweeping victory in an election, and on the back of that pushes through a constitution.

Medina is also skeptical that the majority approval for a constitution could be assembled, but he was also involved in several initiatives for drafting constitutions based on the liberal democratic values of the Declaration of Independence. He believed that these might not serve as actual constitutions, but as a manifesto or symbol that could serve as the basis of the next government, and help in the process of understanding Israel as a liberal democracy. Interest in a constitution right now is from those who had awoken to the substantial risk posed by the reform to their fragile basic values.

The interest is cause for more optimism from Cohen, so he said that he is unsure about the possibility of assembling a constitution soon. Many of the pieces are there, and he believes that there is room for compromise. Politics would interfere more than principle, in his eyes.

“I think it is the energy in the streets right now [leading people to talk about a constitution], and the interest of the people in the details of the constitution is incomparable to anything we had in the past.” •