Will Israeli judicial reform lead to renewed constitutional process? – analysis

The Knesset’s ministerial committee voted on opposition leader Yair Lapid’s bill to require Basic Laws to follow the principles of the Declaration of Independence on Sunday. This is one step in a trend to formulate alternative judicial reform proposals that lean in the direction of a renewed constitutional process, and could open the door to an alternative legislation path.

At the birth of the Jewish state, Israel’s founding fathers delayed the writing of a formal constitution. In part, this was to prevent political infighting. Some early politicians wished to avoid the restriction of government powers at a time of such uncertainty, while others wished to avoid limits to their personal power.

A constitution seemed unnecessary to some. The United Kingdom lacked a written constitution, so some may have felt it was unnecessary for Israel. Furthermore, Israel was dominated by a single party during its early decades – Mapai. A constitution sets the rules of the political game, and a dominant player might be less pressed to establish those rules.

So they compromised with a constitutional process. The Knesset would enact quasi-constitutional Basic Laws that would, at a later date, be assembled into a formal constitution.

Not only was the relationship between these Basic Laws and other legislation not properly established, but a deadline for the constitutional process was never set.

So Israel established Basic Laws as needed. Since 1958, around every four years, a new Basic Law was introduced until 1994, with the exception of Basic Law: Referendum and Nation State in 2014 and 2018. Since the 1990s, the constitutional process has largely faltered.

The 1990s was also the period in which the constitutional revolution occurred, in which the High Court of Justice determined that the provisions of Basic Law: Freedom of Occupation and Human Dignity and Liberty, which prevented other laws from contradicting these rights, was tantamount to constitutional supremacy. The court determined, as part of this revolution, that it could engage in judicial review.

The current crisis comes, in great part, from what some in the pro-reform camp perceive to be a unilateral cobbling together of a virtual constitution in which the High Court seized far too much power for itself.

Following the proposals by Justice Minister Yariv Levin to reform the judicial system, which would see far more power swing back into the hands of a ruling coalition, critics and opposition have put forward an increasing number of proposals that would continue down the path of the constitutional process – and toward establishing clearer rules for the political game.

Alternative judicial reform proposals

Last Monday, the Israel Democracy Institute issued a proposal to complete Israel’s constitutional process. In addition for a call to complete the bill of rights, the process suggests an introduction of Basic Laws: Legislation and Basic Law: Declaration of Independence as keys to renewing the constitutional process.

Last Sunday, President Isaac Herzog proposed, as part of his five-point plan for negotiation, that the Knesset enact Basic Law: Legislation. This Basic Law has long been debated and considered, and is thought by some legal experts to be a major missing link in the constitutional process.

Basic Law: Legislation would establish the boundaries and relationships between the legislative and judicial branches. It would create a special method to introduce Basic Laws, prevent the High Court from intervening in them while also codifying judicial review of normal legislation based on the Basic Laws – thereby properly enshrining the Basic Laws’ status as constitutional articles.

Yair Lapid's Basic Law bill: Enshrining Israel's Declaration of Independence

On Sunday, the Ministerial Committee on Legislation was set to vote on Lapid’s bill Basic Law: The Declaration of Independence. The law would enshrine the principles of Israel’s declaration of independence, used by the High Court as a guiding document.

Lapid’s version differs from the IDI’s in that it would also restrict the Basic Laws to those that follow the declaration’s principles, giving the document semi-constitutional status.

“The Declaration of Independence states that the State of Israel ‘will be founded on the foundations of freedom, justice and peace in the light of the vision of the prophets of Israel; maintain full social and political equality of rights for all its citizens without distinction of religion, race and gender; guarantee freedom of religion, conscience, language, education and culture,’” Lapid wrote on Facebook. “We are fighting these days for the values of the State of Israel, for the values of the Declaration of Independence, for the soul of our country.”

The declaration has been championed in recent protests, with banners and posters of the document. This is an appeal to authority – as if the document was a constitution.

On Wednesday, Yisrael Beytenu chairman Avigdor Liberman reiterated his calls for the establishment of a constitutional court and constitution. More politicians and leaders may propose their own versions for renewing the constitutional process as the crisis unfolds.

At the founding of the state, it may have been seen as inconvenient to have a constitution, and a lack of urgency allowed politicians to procrastinate.

Faced with a constitutional crisis, the lack of a constitution may no longer be convenient, and the situation may be dire enough to push politicians into action, restarting the constitutional process.