Lapid calls to write Israeli constitution in response to judicial reform

Israel needs to introduce a constitution based on the Declaration of Independence in response to problems in the system revealed by the judicial reform push, opposition leader Yair Lapid said in a Facebook post on Friday morning.

“We must write a constitution,” wrote Lapid. “A constitution is the only thing that will give us a unifying ethos, clearly, that we all have in common. A constitution is a contract between the citizen and the government. It is the written commitment of the state to protect the rights of its citizens.”

Lapid said that while the current government was right about one thing – the previous Israeli social contract was no longer valid – which was made evident in the protests and clashes of values over the judicial reform. The Yesh Atid leader said that the liberal camp had strengthened in its values, wanted to protect Israel as a Jewish democracy and to prevent the state from becoming disunited, “messianic, nationalist, violent and undemocratic.” To accomplish this a new and unifying social contract had to be created.

The new constitution, Lapid contended, should be based on the Declaration of Independence, which the Knesset member said expressed the moral heart of the nation. This sentiment has been expressed by many protesters during demonstrations against the ongoing judicial reform. Demonstrators have displayed banners and signs depicting the document or excerpts during the events. On Thursday, National Unity leader MK Benny Gantz symbolically re-signed the Declaration in a Black Robes Movement event to signify recommitment to its values.

Giving the Declaration of Independence formal legal status in Israel

The Declaration of Independence has no formal legal status in the Israeli government system, which Lapid proposed should be changed by making the document the first chapter of a new constitution. Lapid had submitted a bill on February 19 to enshrine the Israeli founding document in one of the quasi-constitutional Basic Laws, which would have also required future Basic Laws to be in line with the values expressed in the article.

“We must enshrine in law the fact that the State of Israel ‘will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture,’” said Lapid, quoting the Declaration on Friday. “In the conflicted tribal society we have become, the Declaration is needed to define a common ethos and a common good. We must confirm its status as the fundamental values document of the State of Israel.”

Consequently, Lapid said that a bill of human rights should be included to contain Basic Rights currently not protected in the legal system, such as “freedom of expression, prohibition of discrimination, freedom of religion and conscience [and] the right to education.” Currently, Israel’s Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation are the basis of Israel’s human rights legal regime, with the court taking the controversial liberty to derive rights from Human Dignity to protect other rights.

Lapid also called for the Basic Law: Legislation to be introduced in the constitution. Most of Israel’s Basic Laws do not have constitutive supremacy over normal legislation and do not have a special method for their enacting. Lapid’s proposal would introduce both, and also establish the boundaries and limits of the legislature and judiciary. Often described as a missing step in Israel’s constitutional process, Basic Law: Legislation was also included as part of President Isaac Herzog’s mid-February five-point plan for negotiation.

An amendment of Basic Law: Judiciary, which is also the subject of the changes in the current judicial reform bills, should also codify the power of judicial review and redevelop the composition of the Justice Selection Committee.

In the 1990s, during the so-called constitutional revolution, the High Court of Justice determined from legally supreme provisions in Basic Laws: Human Dignity and Liberty and Freedom of Occupation that the court had the ability to engage in judicial review – the power to strike down laws in contradiction to the laws.

The Justice Selection Committee has been subject to debate, with reformists contending that judges are selecting themselves, and want to install more elected officials. Anti-reformists argue that the current proposal would give the coalition an automatic majority. Lapid wished the constitution to have a mechanism that would give any political camp control over judicial appointments, but that would also create diversity in the court.

“Towards Israel’s 75th year, we must stop the current destructive process and see the crisis as an opportunity to sit down together to write our constitution,” said Lapid.

Movement for Quality Government in Israel chairman Dr. Eliad Shraga also said that the crisis should be seized as an opportunity when he introduced a proposal for a constitution on Thursday. Prof. Barak Medina also expressed this idea of taking the opportunity to introduce a constitution when discussing with The Jerusalem Post the Independence Initiative, which is another constitution proposal based on the Deceleration of Independence drafted by several legal experts. The Israel Democracy Institute proposed its own plan to renew Israel’s constitutional process on February 13.

At Israel’s founding, no constitution was written due a variety of factors, including political self-interest, potential for division and the dangerous times surrounded by enemies. Instead, a compromise was adopted in which the Basic Laws would slowly be introduced and then at an undetermined point in time would be assembled into a constitution.

“In order to be free people who choose of their own will to live together, we must write a constitution for Israel. So that the differences of opinion between us do not bury us under them, we must design a mechanism of cooperation,” said Lapid. “A constitution for Israel based on the Declaration of Independence is not only ethically and morally justified, it is also the only thing that will get us out of the terrible crisis we have fallen into.”