Israel’s Constitutional Crisis

Barak Medina holds the Alfred Landecker/Benjamin B. Ferencz Chair at the Hebrew University of Jerusalem.

These are troubling times in Israel. While Israel has marked 75 years of its foundation this year, it is going through a serious identity crisis, which divides our society. The immediate cause for this divide is the initiative of the new government, formed at the end of December 2022, of a judicial overhaul.

If successful, the move is expected to result in practically eliminating judicial review of the government and the Knesset, our parliament. This aim is to be achieved by giving the government the exclusive power to appoint judges, and by explicitly limiting the power of judicial review of legislation. While the government enjoys a stable majority in the Knesset, the initiative has faced an unprecedented public protest, making the final outcome still hard to predict. At the heart of this plan is a debate about the jurisprudence of the Israeli Supreme Court in recent decades, mainly since the 1992 so-called Constitutional or Human Rights Revolution. The attempt now is to bring about a counter-revolution.

The immediate purpose of the government’s initiative is the standard one of populist regimes—an attempt to provide the coalition control over the election process, to secure its ruling. But at the heart of the plan is a deeper motive, which refers to policies that the government aims to apply, which are currently considered unconstitutional. The common element of most of these policies is their reference to Israel’s identity as a Jewish and Democratic state.

The current debate in Israel is, in fact, about this issue—what does it mean that Israel is a Jewish and Democratic state. To understand the divide, we should first go back to two points in time—1948, when the state was founded, and 1992, when the so-called constitutional revolution took place. It will serve as an essential background to the current conflict.

The starting point is 1948.

Israel was founded following the UN resolution, 6 months earlier, to establish two states in the land of Palestine, one Arab and one Jewish. The UN resolution required each of the states to declare that while each will have its specific national identity—one Arab, one Jewish—each will be committed to the ideals of a liberal democracy, mainly the protection of basic freedoms, including religious freedom, and treating all citizens, Jews and Arabs, as equals. At the stage of Israel’s foundation, the UN resolution was considered at least politically binding, and thus Israel’s declaration of independence followed these requirements. In a nutshell, the declaration sets that Israel is Jewish only in the terms of its immigration policy, which is aimed at providing a so-called right of return to all Jews, a policy that was expected to establish a decisive Jewish majority among the citizens of Israel. The declaration explicitly requires complete political and social equality to all citizens, as well as the protection of all freedoms.

The UN resolution required that a constitution, that includes the same provisions, will be enacted. However, the constitutional assembly which was elected in early 1949 decided not to enact a constitution. It decided that the parliament would enact Basic-Laws, each of them will be a chapter in the future constitution, that will be formed once the enactment of all chapters is concluded. It was left open in what majority the Basic-Laws are to be enacted and what is their formal status, before they are grouped to form the constitution. The Knesset enacted a set of Basic Laws that dealt with mostly institutional aspects, but avoided from determining what policies are permitted. Until 1992, it did not enact a Basic-Law on human rights.

What is important for our current discussion is the issues related to the nature of Israel as a Jewish state.

The main reason for not forming a constitution in 1949 is this very issue, which was not dealt with in the basic laws that were enacted over the years.

What is interesting here is the governments' avoidance from explicitly stating their view about the meaning of a Jewish state. In this period, from 1948 to 1992, the policies and activities often reflected a view of a Jewish state as legitimizing some forms of discrimination against the Arab minority and the enforcement of religious norms by the state. However, the government and the Knesset were very careful not to set this view in a Basic Law, to avoid giving this interpretation of a Jewish state a constitutional status. On one hand, it seems that it was clear that it would be internationally and partially internally unacceptable to explicitly state, in a norm with a constitutional status, that the government may discriminate between Jews and Arabs or that in may enforce religious norms. At the same time, the government and the Knesset could afford themselves to avoid stating this view because the court did not employ substantial judicial review. The court lacked a formal basis to do so, and thus the government could rely on an ambiguity about what a Jewish state actually means, while continuing to employ policies that reflect the unacceptable interpretation of the meaning of a Jewish state.

As a result, in this period, from 1948 to 1992, Israel maintained a well-functioning democracy, in terms of having free elections and peaceful change of power between political parties. However, its human rights record has been imperfect. Primarily, its constitutional identity as a Jewish state has often translated to policies preferring the interests of its Jewish citizens over those of its Arab-Palestinian ones, in allocating public resources and in other measures, as well as in violating central aspects of the requirement of separation between state and religion. These included setting religious norms as binding in issues of marriage and divorce, discrimination against women in state provided religious services, and more.

The change came in 1992. The Knesset enacted the Basic Law: Human Dignity and Liberty, that requires the government and the Knesset to respect human rights. As usual, the Knesset avoided addressing the hot potato, the meaning of a Jewish state. It avoided the subject by first, not including in the basic law the right to equality and to freedom of and from religion, but only a general term “the right to human dignity”; and second, by stating only intentionally vaguely, that human rights may be infringed only by laws that are in accordance with Israel’s values as a Jewish and democratic state, without explaining what does this mean.

However, once this is the Basic Law: Human Dignity and Liberty was enacted, the court was empowered to employ judicial review, like a constitutional court.

The court decided to interpret the right to human dignity to include the rights to equality and religious freedom, as this is self-evident that no human dignity exists without such rights. As a result, the court had no choice but to define what a Jewish state means. This is essential to resolve cases in which the Knesset and the government infringe basic rights, and it is required to determine whether Israel’s nature as a Jewish state can justify these infringements. Just to give two examples—the government decided to ban the import of non-kosher meat, and it decided to allocate public land to the establishment of a village that is open to the Jews only. It's reviewing these cases, the court had to address the government’s argument that these two policies are justified based on Israel’s identity as a Jewish state.

In both cases, the court, of course, ruled that these policies are illegal. More importantly, the court, which is committed to give reasons for its decisions, had to form a general definition to the question of what a Jewish and democratic state means. The answer was simple and in fact an inevitable one, precisely the one that was already given in the UN decision in 1947 and in the declaration of independence in 1948. The court ruled that Israel is fully committed to values of liberalism, and its Jewishness can justify giving preference to Jews only in immigration policies, but cannot justify discriminating between citizens based on their ethnicity. It may also give Jewish national symbols a place in the public sphere, but may not enforce religious norms as such.

Although this new interpretation did not apply retroactively, to invalidate laws that were enacted before 1992, it resulted in a constitutional revolution. It dramatically improved Israel’s human rights record. The issue of the occupation of the West Bank remains a violation of basic values of democracy, but within Israel itself Israel became, as far as such a distinction is possible, a well-functioning liberal democracy.

This legal interpretation of what a Jewish state is was accepted by the Knesset and the governments in the 30 years since 1992.

In part, it was because it did not apply retroactively, and because the court’s implementation of this principled ruling has been quite limited. In addition, and this goes back to where we started, the government has been de-facto restricted from explicitly rejecting the court’s interpretation, and even more so to enacting a basic law that contradicts it. The closest the Knesset came to such a move was with the enactment in 2018 of the Basic Law: Israel the Nation State of the Jewish People, which is mostly declaratory, but does not include an explicit provision that justifies discrimination against the Arab minority or to impose religious norms.

The change came when the current coalition was formed, at the end of 2022. The Likud party, which used to be a central-right wing party, has formed a coalition with radical right-wing parties and those representing the Ultra-Orthodox Jews. These parties have set as their main aim to redefine the meaning of a Jewish state. Interestingly, even now, with this quite like-minded coalition, the government avoids taking the direct route of explicitly enacting a Basic Law that would provide the non-liberal version of what a Jewish state means. There still are constraints that prevent it from doing so, partially due to the assessment that at least among many of the Likud supporters this is a step too far, and together with the supporters of the opposition, such a move will be responded with a fierce and effective internal protest. The government is also deterred by international pressure, primarily that of the US but also Germany.

The alternative route that the government chose was to try resorting to the pre-1992 order. If the threat of judicial review is removed, there is no pressing need to redefine the meaning of a Jewish state. If this attempt is successful, the government will be able to employ policies that reflect its preferred illiberal interpretation without explicitly stating it. And indeed, the government’s campaign in support of the judicial overhaul completely ignores this substantive issue, and focuses exclusively on the institutional aspects, of the proper way of appointing justices and the legitimacy of judicial review of legislation, as if it is an abstract issue, disregarding the actual consequences of such a move.

Luckily, the protest movement was quick to recognize what was at stakes, and insisted on pointing at the motivation behind the government’s plan.

The main call of the protest movement is “we are loyal to the principles of the declaration of independence,” thus referring to the liberal interpretation of a Jewish state.

It is hard to predict to where we are heading. On one hand, the protest movement has been extremely effective in blocking the government’s legislation. In a poll, about 20% percent of Israel’s above 18 years old citizens reported that they took part in at least one demonstration against the government’s plan. About 50% of the citizens are against the plan, with only 30 percent support and 20 percent undecided. There is a growing consensus that regardless on the context of a judicial reform, it cannot be enacted by the coalition votes only but requires a broad support, by opposition parties as well. If the Knesset does enact a law that limits the power of judicial review, it is highly likely that such legislation will be invalidated by the Supreme Court.

However, even if the threat to judicial review is not imminent, the main concern is that the public in Israel is divided about the proper definition of a Jewish state. There is probably a small majority in favour of a more secular state, separating between state and religion, but among the Jews there is probably a majority in favour of discriminatory policies towards the Arab minority. Hence, the importance of an independent judiciary, committed to the values of liberal democracy. The fundamental and pressing challenge is to achieve peace with the Palestinians, as this issue is at the heart of the conflict between Jews and Arabs within Israel, too.

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