Historical backdrop for the controversy over Israel's judicial reforms

It’s 2023, and Israel is going through a bit of a mess right now. One could even call it an unprecedented constitutional crisis. And it can all be traced back to the fact that the State of Israel doesn’t have a constitution.

Why is that? How did it happen? How can a democratic country even function without a constitution?

Well, we can’t, really. Case in point – take a look at the latest news.

In the United States, one of the things the Supreme Court does is to strike down laws that violate the constitution. But in a country without a constitution, the Supreme Court can’t really do that. The problem is that the Israeli Supreme Court began doing that anyway in 1995. And no one told them they couldn’t.

Until recently, but more on that later.

A democratic constitution is one of the most brilliant ideas of America’s founding fathers. It’s like having an accountability partner: “Keep me accountable – don’t let me call my ex, no matter how much I beg you in the future and tell you I’ve changed my mind.”

In the same way, the constitution is the government telling the Supreme Court: “Keep me accountable – don’t let me violate human rights or change the democratic system, no matter how much I ask for it and try to pass laws about it in the future.”

It’s a genius system because it limits the power of the government and it works pretty well in almost all democracies in the world. Of course, there is a way to add amendments to the constitution, but it’s a longer and more cumbersome process, and it requires a wider multi-partisan consensus.

Israel was supposed to have a constitution. It was part of the Jewish leadership’s commitment to the United Nations, to be a constitutional democracy. Israel’s Declaration of Independence of 1948 even states:

“WE DECLARE that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called ‘Israel’.”

So the plan was clear: There was to be an election to a “Constituent Assembly” who would adopt a constitution and, once that would have been in place, by October 1948, there were to be elections to the first parliament.

What happened?

The War of Independence, that’s what happened.

This new little country became preoccupied with surviving and defending itself against five armies coming against it on all fronts. No one really has time for petty issues like democracy and a constitution when you’re fighting for survival.

The war went on until March 1949, but somehow Israel actually managed to arrange the first ever democratic elections as early as January 1949. This was an election for this “Constituent Assembly” who was supposed to make a constitution and then dissolve themselves. But since they were still in the midst of war, the most burning question that needed to be dealt with was whether to try to reach a cease-fire or to keep fighting. On the second day they met, they passed a law changing their name to the Knesset, and turning themselves into Israel’s first parliament. Oops!

Founder and first Israeli Prime Minister David Ben-Gurion wanted a ceasefire, and decided to let go of all the Jewish holy places in Hebron and East Jerusalem, and thus the 1949 internationally recognized borders came into being, with Jordan ruling the West Bank – Judea and Samaria – and Egypt ruling Gaza.

Ben-Gurion had to finish the war and focus the economy of Israel on absorbing hundreds of thousands of Jewish immigrants who flooded the new country from Europe and the Middle East, fleeing persecution and memories of the Holocaust. The question of a constitution would have to wait a little longer.

And wait longer it did.

There was a draft of the constitution made by a brilliant constitutional legal scholar named Leo Kohn (1894 – 1961), and it looked like everything was ready, but the draft was eventually rejected for two reasons.

The first was that those who represented the religious parts of the government didn’t like the secular nature of the constitution and wanted religion to play a bigger role. Separation between religion and state wasn’t even considered. Some went so far as to say that Israel’s only constitution should be the Torah. The whole issue of Israel being both democratic and Jewish at the same time brought up lots of tough questions which means it couldn’t reach a consensus (and still can’t, really).

The other reason the draft was rejected was because the Supreme Court judges showed their cards too early and stopped Ben-Gurion from executing the political moves he wanted to do. Some believe that once Ben-Gurion realized the judges would be more powerful with a constitution, he started leaning more toward the idea of postponing the constitution question indefinitely.

Eventually, a decision was made to not to make a decision, which has been the expertise of the Knesset ever since. Knesset Member Yizhar Harari came up with the idea that the constitution would be written in stages, over a period of time: The Knesset will make a regular law, and add a little asterisk to it, calling it a “Basic Law,” to signify that “this law will eventually be a part of a constitution.” But the process of making these laws are no different from any other laws, and they are not supreme in any way to regular laws in the meantime. Or are they?

The Knesset also ‘forgot’ to decide on setting a timeframe for when these basic laws were supposed to actually become a constitution. No one really knows.

Until the 1990s, things moved along without too many problems. The Knesset made its first Basic Law in 1958, and things continued slowly and smoothly. All of the basic laws dealt with relations between the government and the Knesset and the elections, etc.

In 1969, an individual pointed out a technicality in a Basic Law, saying the Knesset had passed a regular law in violation of a specific clause in a Basic Law. The court ruled in favor of the individual and told the Knesset to either scrap the regular law or pass it correctly. This was the first time ever the Supreme Court struck down a law, but it was a mere technicality.

In 1970, another individual claimed the Declaration of Independence was a sort of constitution, and asked the Supreme Court to void a law that they believed negated it. The court ruled that the Declaration of Independence was not a constitution but instead, a declaration of intentions, with no legal position of its own.

The issue of human rights didn’t really come up at all but the court would use “basic democratic principles” as their guide in difficult cases, using the Declaration of Independence as a tool for interpretation. Human rights were protected, but not enshrined in a written constitution. More importantly, the Supreme Court didn’t strike down any laws, as it didn’t have that power.

But then the 1990s rolled around, and the Knesset created two new dramatic basic laws – basic human rights and freedom of occupation.

These basic laws included clauses that gave the Supreme Court power to strike down future laws that would violate them, which was extremely dramatic. But this is where the versions of what happened next differ.

Some Knesset members from that era, even Likud members, claim they knew exactly what they were doing and that they were intentionally giving the court power to strike down future laws.

Others claim they didn’t really know what they were voting for, and didn’t get enough time to read the law and were, therefore, misled. Also, the bill to strike down laws was passed just a few months before elections, when most politicians were busy campaigning. Be that as it may, the law was enacted, and it was just a question of time before the Supreme Court would notice that it suddenly had power to strike down laws.

That time came in 1995. Without going into details, a law passed which could be interpreted as going against property rights and someone brought it to the Supreme Court. And the court actually did it; they declared the law invalid. One of the judges opposed the move but all the others voted in favor. It was a historic day, and Israel would never be the same. But once again, it went under the radar because it just happened to occur five days after the murder of the beloved then-Prime Minister Yitzhak Rabin.

After this, the Supreme Court started striking down laws every now and then and, even though they were seemingly careful with this new-found power, some lawmakers were not happy with this situation. One broader effect: Lawmakers became more careful in making new basic laws.

In fact, except for a small change in the election system, no new basic laws were enacted at all from the 1990s until 2014. This situation wasn’t really stable and it was bound to reach a boiling point – and that came in 2023.

The issue regarding the recent judicial overhaul includes limiting the power of the Supreme Court, defining which laws they can and cannot strike down – and under which circumstances – and also includes paragraphs that put politicians in charge of electing judges, while granting the Knesset the right to supersede Supreme Court decisions. It’s supposed to give more power to the people elected into office, and less power to unelected judges.

However, it also removes the only checks and balances currently placed on the power of the government. Unlike the U.S. Congress, the Knesset only has one chamber. And unlike the U.S., in Israel the sitting government always has a majority in the Knesset. This poses a huge problem for minorities who worry that their rights will be trampled by the majority.

Even those opposed to the judicial overhaul agree that Israel does need written rules to regulate what powers the Supreme Court does or doesn’t have. But the opposition claims this overhaul goes too far, and gives too much power to the ruling majority. They want a judicial reform that is generally agreed upon, with a wider consensus. Most people, on both sides, probably want a written constitution, but the question is, is it even possible to make one?

Those in favor of the judicial overhaul claim that the judges snatched power they weren’t entitled to back in 1995. And because they ruled that the basic laws are really a constitution, it gives the Knesset a lot of power that they didn’t know they had. With just a simple majority, the Knesset can change the constitution and the rules of the game.

And that’s exactly what this judicial overhaul is doing. With a majority vote of 64 out of 120 seats, Netanyahu’s government has unprecedented power to make these changes, and that’s probably why they tried to rush through it so quickly.

But then came these protests and demonstrations, and it reached a boiling point.

People are worried that a “tyranny of the majority” – even if democratic – will put us in a situation similar to Turkey, Poland or Hungary, and they weren’t having it.

On the other hand, those who voted for the coalition will be extremely frustrated if the government listens more to the screaming demonstrating minority than to the majority who elected them. They will claim that there is no meaning to democracy or to their vote.

The best for all sides would be if a wide agreement can be reached and if a constitution can be created this time. Because if it doesn’t happen now, I don’t think it ever will.

The events of the last few months have changed Israel forever, for good and bad. On the one hand, it feels like Israelis are more divided than ever – I think we were almost on the brink of a civil war. But on the other hand, most people actually agree that a written law on what the checks and balances will look like, with a wide consensus, is the best path forward.

With some prayers from our friends overseas, maybe this event will end with a constitution and Israel will be stronger, more united and more democratic than ever.

“Appoint judges and officials for each of your tribes in every town the Lord your God is giving you, and they shall judge the people fairly” (Deut. 16:18).