Political crisis proves Israel needs constitution

The term “anarchy” was ubiquitous this past week in Israel’s political discourse, unrelated to criticism of the government’s handling of the coronavirus crisis. Senior representatives of the executive branch talked about “anarchy.” For example, Energy Minister Yuval Steinitz said that even though his Likud party disagrees with the Supreme Court’s ruling ordering Knesset Speaker Yuli Edelstein to urgently convene the plenary to elect a new speaker, “we will not reach a state of anarchy.” Minister of Public Security Gilad Erdan and Agriculture Minister Tzachi Hanegbi, both of the Likud, expressed similar viewpoints. Blue and White leader Benny Gantz urged Interim Prime Minister Benjamin Netanyahu “to tell the people of Israel in no uncertain terms that Supreme Court rulings must be obeyed and that there will be no anarchy in Israel.”

On the other hand, Tourism Minister Yariv Levin of the Likud accused the justices of “leading Israel to anarchy.” Levin, a lawyer, added, "If Chief Justice [Esther] Hayut wants to put herself above the Knesset, she is invited to arrive to the building with her guards and open the session herself.” Levin also claimed that “a handful of judges who elect each other behind closed doors have declared a political coup.” In other words, Levin is arguing that a group of regime opponents are plotting within the nation’s top court to unseat the prime minister and to do so, this cabal is willing to smash one of the foundation stones of Israeli democracy — the separation of powers between the judicial and legislative branches of government.

Levin is obviously aware of the fact that the Judicial Appointments Committee consists of nine members, including four politicians, two Bar Association members and three judges. Appointment of a Supreme Court justice requires approval by a majority of seven panel members, and thus the politicians actually have control over the makeup of the court. It is also worth remembering that the government of Prime Minister Benjamin Netanyahu has been in power for the past decade and that the previous justice minister, Ayelet Shaked, a representative of the radical right, boasts of the many appointments of conservative judges during her tenure.

Unlike the impression that the conservative right is seeking to convey on Edelstein’s back that the Supreme Court enjoys limitless power, the executive branch often displays contempt for the top court’s rulings. Only rarely does the parliamentary opposition weigh in to forestall arbitrary decisions by the Knesset majority. In 2009, the Association for Civil Rights in Israel documented no fewer than eight instances in which the state displayed contempt or was still displaying contempt for Supreme Court decisions since 2006. Among other cases, it found two decisions regarding the fortification against rockets of schools in Gaza border communities, three rulings ordering the state to build 100 classrooms in East Jerusalem and a decision regarding the violation of the rights of migrant workers. In a 2009 ruling on a petition against the route of the wall between Israel and the West Bank, then-Chief Justice Dorit Beinisch was harshly critical of the state for ignoring a previous court ruling for years. She found it appropriate to remind the government of what should have been obvious — that “the rulings of this court are not by way of being recommendations.”

A 2019 position paper by the Israel Democracy Institute underscores the fact that Israel is the only state in the world where only one institution, the Supreme Court, has oversight over the political executive and legislative branches, which are under the control of the governing coalition. Many states have two parliamentary chambers that balance each other, while in other states the balance stems from a division into electoral districts. The states of Europe are under the purview of the European Court of Human Rights. Not only that, but contrary to the impression disseminated by its critics, to date the Supreme Court has overridden only 18 laws in its 72-year history.

In his resignation speech on the morning of March 25, Edelstein accused the High Court, which had essentially forced him to step down, of destroying the work of the Knesset and undermining the foundations of Israeli democracy. However, the institution responsible for maintaining the foundations of Israeli democracy — i.e., the Knesset — is that same legislature that he has led for the past seven years. One of the reasons for this instability is a flawed infrastructure — in other words, lack of a constitution. The official Knesset website notes that unlike many states in the world, "Israel has no written constitution."

Over the years, numerous initiatives by lawmakers and human rights groups to rectify the flaw were torpedoed. The Knesset website states that supporters of a constitution hailed the educational and cultural values of a constitution, and noted that a constitution was a type of state calling card vis-a-vis the world. Arguments were also raised regarding a constitution’s value in promoting the “melting pot” of Israel’s disparate population groups and its value as an expression of the revolution in the life of the Jewish nation.

Opponents have argued that the 1948 Declaration of Independence includes the foundations of every progressive constitution. They rely, inter alia, on two quasi-constitutional Basic Laws adopted by the Knesset in 1992 and 1994 — Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. The article laying out the principles of the Basic Law on human rights states, “The basic human rights in Israel are based on the recognition of the value of the human being, the sanctity of his life, and his being a free person, and they shall be upheld in the spirit of the principles set forth in the Proclamation of the Establishment of the State of Israel.” However, in June 2018, the Knesset adopted the Basic Law: Israel - the Nation State of the Jewish People, known as the Nationality Law. Unlike the Declaration of Independence and the constitutions of other nation-states, the Israeli law ignores the principle of equality, recognizing only that of nationality.

The crisis over the election of a new Knesset speaker and over the forming of the new parliamentary committees have exposed the shame of Israeli democracy. Every democracy needs checks and balances, even more so a young democracy devoid of borders (in every sense of the word) and a society made up of a fragile national-ethnic fabric in which the term “anarchy” is becoming increasingly pervasive in public discourse.