Israel needs a constitution, but won’t get one

Israel’s Declaration of Independence states that a constitution for the State of Israel “shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948.”

Clearly they’re running a little late. And this is more than Jewish standard time.  Despite (or because of) the Jewish proclivity for legalistic arguments, this never happened. In 1950, the Knesset gave up and decided instead to work toward a constitution piecemeal by passing a series of Basic Laws that taken together would ultimately serve the purpose of a constitution.

There are currently 11 Basic Laws. They determine some of the nuts-and-bolts issues of our political system, such as the way Knesset members are elected and how a Prime Minister is chosen and a government is formed. Two of them, Human Dignity and Liberty and Freedom of Occupation, which were adopted in 1992, represent a partial “Bill of Rights.” But nowhere in the 11 laws are such things as freedom of speech, press or religion mentioned. These rights do exist in Israel, established by Supreme Court decisions, but they should be constitutionally guaranteed. And while the Supreme Court is discussed, its powers are only sketchily described. In particular its relationship to the Knesset and the existence of a power of judicial review of laws passed by the Knesset are not discussed.

The Supreme Court exploded into the power vacuum left by the absence of a constitution. The Court more or less selects its own members, and has declared that it has the right to adjudicate any matter brought to it by anybody (the concept of standing, which requires that a petitioner be affected by the outcome of a case, has been eliminated, as well as limitations on the Court’s involvement in political and other issues). And unlike the US Supreme Court, Israel’s Court has original jurisdiction – it can rule on anything, whether or not a lower court has acted on it.

And this isn’t all, as Moshe Koppel of the Kohelet Forum explains. The Attorney General performs the function of the government’s lawyer when it must go to court. But in Israel the AG and the legal advisers to its ministries, paid by the government, don’t answer to it. Although it may seem unbelievable to those who are used to an adversarial system, the Supreme Court has decided that the government and its ministries must be represented in court by lawyers who have been vetted by the legal establishment and the Court, and who even have freedom of action to oppose their governmental clients! In several recent cases, the government backed down from taking a particular action because the AG advised it that he would not defend its policy at the Supreme Court.

As for the attorney general, although appointed by the government, he or she must be selected from a very small set of candidates nominated by a committee; that committee is headed by a retired supreme-court justice who is appointed, in turn, by the sitting chief justice. This system, devised by the justices themselves, makes the attorney general a judicial plant in the executive branch.

Would you allow your opponent in a lawsuit to choose your lawyer for you? This is essentially the position of Israel’s Prime Minister and his cabinet. And since the Court decided to give itself the power to review and reject laws passed by the Knesset without recourse – a power not specified in the Basic Law that established the Court – both the Executive and Legislative branches of the government are subject to the dictatorial control of the Judicial branch.

If you think the US suffers gridlock when the Congressional majority and the President are from different parties, imagine a right-wing Israeli government – elected by a large majority of voters – paralyzed by a left-wing Supreme Court and legal establishment. But no need to imagine it: just turn on our evening news.

Israel’s Minister of Justice, Ayelet Shaked, tried to make the Court less monolithic by changing the way the Judicial Selection Committee chooses Supreme Court justices. She was forced to back down when the Chief Justice threatened to completely cut her out of negotiations for candidates for the Court. If she had succeeded, it might have reduced the paralysis somewhat, but it wouldn’t have solved the basic problem: there is a massive imbalance in power between the branches of government.

The ideal fix would be for Israel to write herself a real constitution, which would define the relationship between the PM and his cabinet, the Knesset, and the Supreme Court in a balanced way. It could also include a Bill of Rights to protect citizens against the abuses of power by government agencies that are not unheard of.

Unfortunately, there is a reason this hasn’t happened yet. Israel’s self-definition seems to exist in a continuous condition of deliberate ambiguity, like the question of whether or not we have nuclear weapons.

For example, a constitution would probably begin by declaring that the State of Israel is a Jewish and democratic state. But good luck in getting anyone to agree about what either Jewish or democratic mean.

Is a Jewish state one whose laws follow halacha? Should they be at least inspired by it? What in general is the role of Judaism – would it be an established religion like the Anglican Church in the UK, or more or less than that?

In order to explicate ‘Jewish’, it might be necessary to define ‘Jew’, something that today has a different meaning for someone contemplating aliyah or someone planning marriage. Do Modern Orthodox, masorti or Reform conversions count? How about those performed under the auspices of “Jews for Jesus?”

‘Democratic’ is similarly problematic. Is it undemocratic to have a flag and a national anthem that doesn’t satisfy the aspirations of some citizens? Is it undemocratic to expose foreign-funded NGOs? Some Israelis think so.

And then there is the question of whose state it is, anyway. Does it belong in some sense to the Jewish people, worldwide? Or just to Israelis? To Jewish Israelis or Jewish and Arab Israelis? If to the Jewish people everywhere, does the American Union for Reform Judaism get to vote? They seem to think so.

Although I would happily write a constitution myself, a real constitution must have broad legitimacy among most sectors of society; and what wasn’t possible in 1950 due to tensions between religious and secular Israelis would be even harder today as a result of increased Palestinian nationalism among Arab citizens.

A good solution would be more ambitious than Shaked’s effort (which itself may have been too ambitious to succeed): a rewriting of the Basic Law for the Judiciary, to spell out the powers and functions of the Supreme Court. It would have to limit some of the excessively broad powers the Court arrogated to itself, and create checks and balances to prevent one branch of the government from dominating the others. And it would make the court accountable to more than just the legal establishment and itself.

I really wish we had a constitution. As an American, I know that the US Constitution has been a very positive factor in the nation’s history. It has served as a source of unifying principles, and a touchstone to define national goals and provide stability in difficult times. The constitution and its amendments made the Civil Rights movement of the 1960s more than just an exercise in identity politics.

But as an Israeli, I have to be pragmatic. Today, I will settle for a right-wing Supreme Court Justice or two.