—Ori Aronson, Bar-Ilan University
Nearly six months have passed since the start of the push by Israel’s governing coalition to remove legal limitations on its powers by undermining the independence of the judiciary and the attorney general and eliminating judicial review. The intense efforts to resist these moves have borne fruit, at least for now. The legislation, which was initially promoted as an uninhibited blitz, was suspended, and multitudes of Israelis, who learned to recognize the risks involved for democracy, rights, and social and economic prosperity, rose up and mobilized to fight for their values.
Of course, the motivations that animated the proposed constitutional reform were not abandoned, and the legislation is still formally on the Knesset’s agenda and within the power of the coalition to renew on short notice. This fact calls for caution in relation to the negotiations that have taken place under the auspices of President Yitzhak Herzog. It also obliges to warn against legal moves that have sought to advance the goals of the reform in other ways, short of continuing the constitutional legislation: manipulative administration of existing judicial selection processes, budgetary allocations and specific acts of legislation directed against human and civil rights, and attempts to curb the independence of professional and expert elements in the central government, in local government, in civil society, academia, education, and the media.
The effort to protect Israel’s democratic foundations has therefore not ended, and in some ways it has become more complex: its clear and obvious target—the package of legal reforms promoted en masse by the coalition—has been converted into dozens of moving targets, with varying levels of political feasibility and normative severity. The struggle for Israel’s democratic regime, which has materialized in recent months with inspiring urgency, will have to adapt to the grinding routine of dealing with continuous and multi-faceted threats to democratic values, a challenge shared by the liberal forces in many countries facing continuous democratic decline, such as Hungary, Poland, Turkey, and India.
But beyond dealing with the political moves of the current government, the last few months invoke a renewed concern for the strength of Israel’s entire constitutional system. Israel does not have an entrenched constitution. The Basic Laws—which Israeli law treats, for over a generation, as supreme constitutional statutes—are enacted by the unicameral Knesset through regular legislative procedure, with a normal majority, and without any explicit limitations on the content they may include. This is a built-in flaw in the Israeli constitutional system, and it was possible to live with—that is, to maintain a reasonable degree of constitutional stability—as long as political actors accepted certain limitations regarding constitutional legislation: namely, that Basic Laws should deal only with constitutional subject matter (i.e., the structure of government and the limits of its powers), that rights remain protected, and that broad and bipartisan support would be sought for the enactment of new Basic Laws or the amendment of existing ones.
The coalition’s moves in recent months were a blatant attack on these conventions. They have however begun to be undermined even before the last election. The enactment in 2018 of the nationalist Basic Law: Israel—the Nation-State of the Jewish People with coalition votes alone, or the temporary amendment in 2020 of Basic Law: State Economy in order to defer a budget vote so as to preserve an incumbent government, are familiar recent examples. Recurrent statements about the possibility of disobeying constitutional rulings of the Supreme Court also expressed the erosion of conventions. The Court itself reacted by breaking with some conventions, when it demonstrated in a series of judgments in 2021 a willingness to strike down Basic Laws if they amount to an abuse of the Knesset’s constituent power or deny the essence of Israel as a Jewish and democratic state.
Granted, there is no sanctity in constitutional conventions. We ought to recognize and accept the political and ideological foundations of constitutionalism, and to remember that existing arrangements are never neutral. Indeed, considering the constitutive disputes that still divide the Israeli polity—the ongoing Occupation of Palestinian Territories, Jewish-Arab relations within Israel, and the religious content of its Jewish character—it is understandable why a full Constitution has eluded the Country, leaving needed room for ongoing deliberation and negotiation.
However, even a political community that cannot settle its foundational constitutional questions must maintain a measure of stable commitment to fundamental liberal values, to make such deliberation and negotiation possible, regardless of the identity of those in power at any given time. This is the concerning aspect of the erosion of Israel’s constitutional conventions. If everything is subject to brute power struggles—be it through majoritarian arm-twisting in the Knesset or political backroom horse-trading—then the very moral foundations that justify the democratic political project are threatened.
Democracy is a regime committed to the humanist values of liberalism: equality and freedom for all. The constitutional conventions which governments have generally followed within Israel—periodic and competitive elections, limited government, judicial independence, human rights—reflected these commitments to a reasonable extent. (I exclude the issue of Israeli control over the Palestinian Territories, which of course does not fit this statement, and raises separate concerns about Israel’s democratic essence.) If these constitutional conventions are no longer accepted, the fear is that the party in power will exploit any opportunity to promote its unique interests and perpetuate its advantages through constitutional lawmaking. This is a risk for any democracy facing decline; it is even graver in a county as Israel, which is amenable to rights infringements in multiple fronts.
The crucial importance of the civil awakening brought about by the resistance to the government’s reforms is in its manifestation that Israel’s constitutional conventions still carry some weight in the calculus of political actors. But the nagging concern is that the erosion of Israel’s constitutional conventions has not stopped, and that the lessons learned are not in political morality but rather in political strategy. This means that merely maintaining containment efforts is not enough; a positive effort is needed to formulate, ratify, and instill Israel’s constitutional conventions, so that they once again provide a stable basis for the discussions yet to come about the fundamental disputes of Israeli identity.
This effort includes at least two necessary components. One is legal: a deliberative and collaborative process must be initiated with the aim of entrenching stable norms of constitutional legislation going forward, while also ratifying appropriate provisions from the existing Basic Laws. The other, and more challenging one, is educational: the moral infrastructure of the democratic ideal and the importance of the constitutional conventions that uphold it must be made accessible to all Israelis, young and old. The commitment of the Israeli political community to democracy is on the line.
Suggested citation: Ori Aronson, Israel’s Constitutional Breakdown – Six Months In, Int’l J. Const. L. Blog, June 30, 2023, at: http://www.iconnectblog.com/strongisraels-constitutional-breakdown–six-months-in-strong/
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