Israeli Life: Waiting for a Constitution
Israel is one of the few modern states without a fundamental charter delineating the structure of its government. But enacting one poses its own risks.
As Israel’s justice minister, Daniel Friedmann made virtually no progress in pushing his signature reforms of the justice system. But during two years in office, the 72-year-old law professor succeeded, quite unintentionally, in teaching two lessons: The first is that Israel really does need a constitution to protect its democratic foundation. The second, ironically, is that trying to enact a constitution is a risky business. Done wrong, it could endanger the delicate structure of Israeli democracy.
Friedmann was appointed to the cabinet by Prime Minister Ehud Olmert in February 2007, after his predecessor, Haim Ramon, was convicted of indecent behavior for forcing a kiss on a woman soldier. Friedmann was a surprise choice. He was a Tel-Aviv University professor rather than a politician. While the justice minister normally acts as the guardian of the courts within government debates, Friedmann was a vocal critic of the judiciary. From the moment he took office, his declared goal was to reduce the power of the judges, and especially to limit the Supreme Court’s authority to review and overturn laws.
A brief trip through Israeli history will explain why that matters so much. When the first Knesset was elected in 1949, it was supposed to be a constitutional congress, in accordance with the United Nations’ 1947 decision to partition Palestine and with Israel’s own Declaration of Independence. Instead, acceding to founding Prime Minister David Ben-Gurion’s wishes, the Knesset chose not to frame a constitution. Israel became a rarity: a modern state without a fundamental charter that delineates the structure of government and puts limits on its powers.
There are two standard tellings of why Ben-Gurion did not want a constitution, explains Yedidia Stern, a law professor at Bar-Ilan University in Ramat Gan and vice president of the Israel Democracy Institute. “The first story is that there was secular-religious disagreement on the issues of religion and state, and they couldn’t reach a consensus,” he says. Orthodox parties, say some histories, felt that the constitution of a Jewish state must necessarily be based on Torah, which secularists predictably rejected.
“A stronger explanation,” says Stern, is that “Ben-Gurion didn’t want a constitution.”
A constitution would transfer power from politicians to judges. Leaders trying to navigate the challenges of creating a state should not be subject to judicial intervention, Ben-Gurion thought. Besides, Israel’s most immediate model of government was the former colonial power, Britain, a functioning democracy in which Parliament reigned supreme with no written constitution.
As a compromise, the Knesset adopted a resolution stating that it would pass a series of “basic laws” over time, each dealing with a specific issue. Together, they would eventually form a constitution. The first such basic law, in 1958, codified how the Knesset would be elected and how often. Half a century later, the basic laws are still an unfinished structure, like a building project with the concrete showing, the windows and roof still missing.
Meanwhile, major changes can be made with surprising ease. In 1992, the Knesset voted to change the election system so that the prime minister was chosen by popular vote rather than by the parliament. The change was supposed to bring stability and free the prime minister from the pressures of small parties. It did the opposite, leading to short-lived governments, crumbling political parties and frequent elections. In less than a decade, the Knesset voted to change back to the old system of pure parliamentary government.
For those concerned with strengthening liberal democracy, the piece of a constitution that is most glaringly missing is a full bill of rights. To some extent, the Supreme Court has stood in the breach, establishing civil rights through judicial activism—starting with a famed 1953 ruling that the government could not shut a newspaper for political reasons.
In 1992, the Knesset finally managed to reach consensus on the first two pieces of a bill of rights. One basic law guaranteed an economic freedom, the right to choose one’s occupation. Another protects “human dignity and liberty,” including the right to privacy, the right of citizens to leave and enter the country and protection from unreasonable searches.
Afterward, the Supreme Court took the lead in what became known as the “constitutional revolution”: The court interpreted the new basic laws as giving it the power to overturn laws that violated basic rights. Meanwhile, it gradually widened access to a unique Israeli institution, the High Court of Justice. That’s the name used by the Supreme Court when it hears citizens’ requests for redress of alleged injustices by the government. Under the new rules, it is easier for an individual or organization to challenge a government action with wide public impact—for instance, the discriminatory impact of exempting yeshiva students from the draft.
In practice, the court has struck down very few laws, explains David Kretzmer, emeritus professor of international law at the Hebrew University of Jerusalem. The real impact, he says, is on the Knesset: “Every time there’s a bill, it’s checked to see if it will stand up to [judicial] review.”
But there has been backlash, and Friedmann is its voice. In his view, the judiciary should not arrogate the power to rein in the elected legislature and government. As justice minister, he has sought to roll back the revolution with new laws limiting the courts. Under one bill drafted by his ministry, it would take a two-thirds vote of Supreme Court justices to strike down a law—and a simple majority of 61 Knesset members could override the court. Another Friedmann proposal would have barred the court from ruling on budgetary matters, security issues or decisions by state prosecutors on whether to bring someone to trial. Those proposals would have touched critical issues of Israeli democracy. The court would not be able to rule on claims of discriminatory funding to Arab schools, on eavesdropping in the name of national security or on a suspicious decision not to charge a minister with corruption.
Coalition politics have so far blocked Friedmann’s counter-reforms, and it’s unclear what their fate will be under the new government. But already, says leading legal commentator Moshe Negbi, the attacks on the Supreme Court have reduced public trust in the institution. Friedmann’s efforts have also underlined the vulnerability of the court and the rights that it protects. A momentary majority in the Knesset could vote to reduce the court’s powers. It would take a constitution to prevent that.
For several years, in fact, a number of politicians, academics and jurists have been stepping up efforts toward enacting a constitution. For the last two terms of the Knesset, the Law Committee has held hearings on the subject. One proposal under consideration is the “Constitution by Consensus,” formulated by the Israel Democracy Institute after a series of public conferences.
A constitution, Stern stresses, would protect the judiciary and civil rights. Beyond that, he says, it would bring stability to the system of government. It would also have “symbolic, educational” value, more clearly “establishing that the state is democratic and Jewish.”
The IDI’s proposal guarantees judicial review while specifying that only the Supreme Court would wield that power. It includes a bill of rights that in some ways is more extensive than America’s—guaranteeing the right to government-provided health care and education and the right of unions to strike, and banning capital punishment.
On the other hand, there’s no ban on state-established religion. Indeed, the proposal specifically excludes a series of religious issues from judicial review—conversion, the authority of state religious courts over marriage and divorce, “the Jewish character of the Sabbath in the public realm” and more. On those basic matters, so deeply connected to Jewish identity, “politics will decide,” Stern explains. This is a recognition that getting a constitution approved is a matter of political compromise. Any attempt to enshrine the classic secular or religious positions in a constitution would stir too much opposition and foil the project.
While skirting the issue of religion and state, the IDI proposal clearly establishes Israel’s character as the state of the Jewish people. The Law of Return would become part of the constitution, which would also specify “Hatikva” as the national anthem, the Jewish calendar as the official calendar of the state and Hebrew as the only official language.
Arguably, this is also a grand compromise: Some parts of the Israeli political spectrum would have an easier time agreeing to the guarantees of equality and democratic rights if they are balanced by these provisions. The rather obvious risk, though, is that such a constitution would deepen the alienation of Israel’s Arab citizens, a fifth of the population. Not surprisingly, the Arab rights group Adalah has put forward its own draft of a constitution, defining Israel as a “democratic, bilingual and multicultural state.” Arguably, the question of how to reconcile being a Jewish state and a democratic one should also be left for politics to decide, instead of being set in stone by a constitution.
A constitution, suggests Kretzmer with a certain measure of skepticism, is no panacea. It can “be important…in educating people for citizenship,” he says. “It can also provide some way to curb government excesses.” Yet the real-life political culture of a country may be stronger than what’s written in the national charter. “Everyone rightly praises the United States for its protection of freedom of speech,” he notes. Yet in both the British parliament and the Knesset, a much wider political spectrum, from radical left to far right, has representation.
A constitution, like any other law, is a product of compromise, but it gives the compromise lasting force. It can limit democracy. Which brings us back to Friedmann: While he did not succeed in restricting the Supreme Court, he was chosen as justice minister by the ruling party. Enacting a constitution today could mean compromises with his views that would limit the protection of civil rights. In theory, a constitution is a great idea. In practice, it might be worth waiting even longer to get one. H