Is Israel witnessing a ‘constitutional moment’? Notes on Israel’s Constitution System under the Proposed Judicial Overhaul
In January 2023, the newly appointed Israeli Minister of Justice initiated a set of changes to the legal system referred to as the “judicial reform.” These changes consist of five main constitutional components. First, government control over the judicial appointment committee and changing the process of appointing judges, particularly Supreme Court justices, from a professional to a political procedure. Second, abolishing judicial review of Basic Laws and allowing review of ordinary laws only, with an expanded panel of justices requiring a large majority to invalidate them. Third, abolishing the doctrine of reasonableness as a basis for invalidating administrative decisions. Fourth, introducing an override clause that would allow the parliament to reinstate a law struck down by the Supreme Court on the grounds of violating human rights and lacking proportionality. Fifth, changing the status of legal counsels in government ministries to positions of trust. The underlying theme behind these proposed changes is reflected in the slogan, “Returning governance to the public.”
Since the proposed legal changes were made public, countrywide demonstrations have been taking place weekly, with citizens protesting the initiatives. The immense demonstrations have ignited broad and intense public debates, delving into the historical injustices inflicted upon marginalized segments of Israeli society that have endured exclusion and discrimination for the past seven decades. The events have also sparked renewed discussions and debates surrounding the occupation of the West Bank and its profound implications for the fundamental principles of the Israeli governance system. These developments have intensified the controversies within Israeli society and spurred initiatives that reflect the pressing need to establish a social and inclusive consensus, potentially leading to the creation of a new social contract, possibly embodied in the form of a formal constitution.
Considering, at one hand, the coalition’s declaration that these changes are a return to democracy and the demonstrators calls of end of democracy, on the other hand and considering the possible clash between the executive and judicial branch after their enactment, I explore whether these events be regarded as a “constitutional moment”, a concept introduced by Bruce Ackerman? A constitutional moment refers to a period in the history of a nation, which is characterized by significant changes, debates between the different branches of the government, or events that result in the reevaluation, revision, or creation of a constitution. It is a time when the fundamental principles, structures, and rights in the governing system of a country are reconsidered and possibly changed. But more importantly, as presented by Ackerman, this framework contributes to the rebirth of democracy in modern era and is a hope for constitutional creativity. I argue that given Israel’s constitutional system, these processes may hinder or raise challenges for establishing a constitution rather than facilitate progress toward that goal. Certain basic conditions must be present to generate an Israeli constitutional moment, which I refer to as “constitutionalizing Israel’s constitutional system.”
The constitutional structure of the State of Israel
Israel is a unicameral parliamentary democracy where the legislative body is the Knesset. It does not have a formal and written constitution, but its constitutional framework is based on Basic Laws and judicial precedents. In its 75 years of existence, the Knesset enacted 13 basic laws. These laws, together with hundreds of constitutional rulings by the High Court of Justice covering various aspects of governance, human rights, and state identity, serve as the closest approximation to a constitution in Israel.
Basic Laws are classified into two groups. One group regulates the regime of the State and the relations between the various authorities and includes the following Basic Laws: the Knesset; the President of the State; the Government; the Judiciary; Jerusalem, the Capital of Israel; the State Economy; Israel Defense Forces; Referendum; Israel Lands; and the State Comptroller’s Office.
The second group governs the scope of citizenship related to the political and civil rights enjoyed by citizens and plays a crucial role in regulating the daily lives of citizens and the relations between individuals and communities and between communities and the State. This group includes three Basic Laws: Human Dignity and Liberty, Freedom of Occupation, both enacted in 1992, and Israel – Nation State of the Jewish People, enacted in 2018. The first two Basic Laws are considered landmark legislation that enshrines fundamental human rights in Israel. They establish and safeguard rights such as dignity, life, freedom, privacy, property, the right to enter and leave the country, and freedom of occupation. However, they do not include provisions on equality, freedom of speech, or freedom of religion; these are protected by the Supreme Court and recognised as constitutional values.
Another significant aspect of these two Basic Laws is the inclusion of clauses that enable judicial review by the courts over legislative and executive actions and decree the supremacy of the Basic Laws over regular laws. These provisions empower the judiciary to act as a guardian of constitutional values, granting the courts the authority to invalidate laws and administrative decisions that are found to be inconsistent with the values incorporated in the Basic Laws.
Thus, in addition to the Basic Laws, the legal system of Israel is also shaped by legal principles and court decisions. The Supreme Court, which also serves as the High Court of Justice, plays a significant role in ruling on constitutional and administrative petitions that challenge the actions of public and governmental authorities and on the legality of legislation in interpreting the law and safeguarding constitutional rights.
The task of interpreting the law is complex and challenging because of the definition of the state as Jewish and democratic. This definition raises tensions between the commitment to preserve the Jewish national identity of the State and the commitment to realise the democratic principles of safeguarding human rights and equality. The tension intensifies in two levels. One concerning internal Jewish issues, such as the separation of State and religion affecting gender equality, LGBTQ rights and the status of the Sabbath. The second level is external concerning the execution of the rights of non-Jewish communities, mostly the Arab citizens of the country when, among others, they demand equality in allocation of land and budget on account of strengthening the Jewish identity.
The enactment of the latest Basic Law: Israel – Nation State of the Jewish People (hereinafter, Basic Law: Nation-State) has further intensified this tension. Admittedly, most of the sections of the Basic Law: Nation-State have already been addressed in existing legislation and case laws, all of which stress the substance and nature of the Israeli civil space as a space that is essentially Jewish. But their grouping in the new Basic Law upgraded their legal status and raised their protection to a constitutional level that may compete with other such values, for example, human dignity and freedom. This means that if a contradiction arises between one constitutional value (human dignity) and another (Jewish settlement), the court is required to make a horizontal as opposed to vertical balancing of rights and decide which of them prevails over the other under the circumstances of the case. So, the formal Israeli system fails to provide full protection of the fundamental constitutional values, the right to equality and includes contradictions that might infringe on minority rights.
Is Israel experiencing a constitutional moment?
On the one hand, the countrywide demonstrations, marked by calls for democracy, appear to be an expression of popular demand for greater accountability, transparency, and citizen participation in decision-making processes. Thus, they can be framed as reflecting the public’s desire for transformative constitutional reform. On the other hand, the legal changes introduced by the coalition, resulting in a concentration of power in the executive branch, reshaping the balance of power and the relations between branches of government, and the protection of individual rights and liberties may also be considered as transformative events with constitutional implications.
The Israeli society according to me is far from experiencing a constitutional moment for three main reasons. First, rather than having a broad consensus, as required by Ackerman’s first stage that constitutional moment involves, the demonstrations on the one hand and the government agenda on the other attest to strong disagreements between the diverse communities that compose Israeli society. According to the Minister of Justice and his supporters, the proposed judicial reform is aimed at “strengthening democracy, rehabilitating governance, restoring faith in the judicial system, and rebalancing the three branches of government.” The same suggested changes have raised concerns in various segments of society about the potential concentration of power in the executive branch and its implications for democratic governance. These controversies also manifest in the unstable political situation and repeated elections after governments serve for short terms.
Second, no ample and thorough deliberative process appears to be taking place during these events, as required by Ackerman’s third stage. After several weeks of countrywide demonstrations, in March 2023, the Prime Minister announced the suspension of the legislative process and a shift toward a dialogue channel facilitated by the President of the state. The talks, which lasted three months, did not include representatives of all political parties, but only two parties out of five in the opposition, and reached no agreement. Despite ongoing calls for returning to the talks, the unilateral legislation process is proceeding.
Third, I contend that to experience a constitutional moment, that moment must, first and foremost, be constitutional. This means that such an event must adhere to fundamental constitutional values, including the rule of law, democracy, separation of powers, protection of human rights, and equality. The continued occupation beyond the green line, in which the rule of law and basic protection of Palestinian residents’ rights are absent, together with the fragile status of the Palestinian citizens, women, LGBTQ and other minorities within the Jewish society, largely diminishes Israel’s constitutional system. Therefore, the recent events are not an Israeli constitutional moment, and there is still a long way to reaching such a moment. Constitutionalising the Israeli regime, which lacks fundamental constitutional protections of rights, would be the first step toward this goal.
How to constitutionalize the Israeli system
Constitutionalizing the constitutional system of Israel would involve a comprehensive and inclusive process that considers the diverse perspectives and interests in Israeli society. Moreover, certain basic procedural and substantive conditions relevant in the case of Israel must exist.
First, there should be a recognition by a significant portion of the population, including various political, social, and religious groups, of the need for a constitution and the importance of constitutional reform. Second, the process of constitutionalisation should be inclusive, allowing for broad participation by all sectors of society, including particularly marginalised communities and minority groups. Creating mechanisms for public consultations, debates, and forums that facilitate diverse perspectives can ensure a more representative and democratic outcome.
Third, a constitutional process should address key challenges unique to the country, including the occupation regime and its implications for the rights of millions of Palestinians living under Israeli military control. It should also ensure the rights of the Palestinian citizens of the State, who are a politically weakened group with little control over shaping their rights. A constitutional process must also protect human rights for other marginalised groups, promoting equality and addressing historical grievances.
Fourth, establishing an independent and expert commission or body can be instrumental in guiding the constitutional process. Such a commission can conduct research, gather public input, draft proposals, and provide technical expertise to inform the deliberations. Fifth, drawing on international and comparative experiences can provide valuable insights and best practices for constitutional design. Learning from other countries that have undergone similar processes can help inform decisions and avoid potential pitfalls.
To conclude, the recent events have sparked discussions that acknowledge the need for a new social contract to address the frustrations and aspirations of all segments of Israeli society. Israel has always been a conflictual society, but whereas previous disrupting events concerned certain groups, the current ones are focused on Israeli society as a whole, with most groups voicing (or starting to voice) their positions. Thus, this may be an opportunity to experience a constitutional moment in which citizens would engage, talk, listen, draft a new inclusive social document, and possibly start to heal the wounds of historical injustices.
A longer version of this blog will be published in a Special Israel Law Review symposium, citation: Manal Totry-Jubran, Constitutionalizing Israel’s Constitution System 56 Israel Law Review (2023)