Judicial reform: Israel needs a Zionist constitutional convention

The ideal of a “Jewish and democratic” state is nothing new. The phrase first appeared in the State Education Law of 1953, designed to reflect a hopeful, but basically flawed and conflicting resolution of values. The tensions inherent to “Jewish and democratic” are both theoretical and practical. Can a state that explicitly defines itself as Jewish also respect the fundamental democratic value of equality of rights for all? How does this apply, for example, to the Arab minority that is 20 percent of Israel’s citizenry? How does this apply to the other 80 percent of the population, among whom the meaning of Judaism, Zionism, and even who is a Jew is highly controversial?

Nevertheless, the Jewish nature of the state was fundamentally established in the section of the Declaration of Independence declaring Israel to be a state of Jewish immigration (aliyah) and of “The ingathering of the exiles.” 

This was legislated into the Law of Return, passed in 1950. The 1948 Declaration of Independence includes Israel’s explicit commitments to democratic values: 

“The State of Israel… will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it 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.” 

However, attempts to reconcile the Jewish cultural nature of the state with the political rights of the Arab minority, not to mention the lack of religious freedom of the majority population of secular Jews under the ultra-Orthodox Chief Rabbinate, have been a failure for 75 years. Today’s mounting protests against the government’s proposed reformation of the judicial system signify that the time has come for some basic change.

The Foundations of Law Statute (1980) states: “Where a court, faced with a legal question requiring decision, finds no answer to it in statute law or case law or by analogy, it shall decide it in light of the principles of freedom, justice, equity and peace of Israel’s heritage.” Just like the time-proven reasonableness doctrine threatened by the right-wing ideology favored by the government.

At a time of competing unreasonableness doctrines – that have virtually paralyzed a polarized Knesset and brought the country to the verge of what appears to be another of those Jews-shooting-themselves-in-the-foot self-defeats – it is time for a change. 

One way to begin updating Israeli democracy might be to abandon the mantra of the quasi-religious, immutable “status quo” arguments regarding the Temple Mount and update the rules. The Mount-sized bite of Israeli sovereignty that Moshe Dayan hastily gave to the Jordanian Wakf, in a shortsighted effort to maintain calm immediately after the Six Day War, has proven to be a source of constant religious friction, both interreligious and intrareligious, that often turns violent. It is also time to upgrade prayer arrangements and thereby establish a new status quo, where all Jews enjoy the freedom to pray – both on the Mount and the plaza below.

Correcting another historic mistake, David Ben-Gurion’s initial compromise with Agudat Yisrael on special treatment for a few hundred yeshiva students, is not so simple. The Holy Land was fertile ground for the initial cohort of students, who were fruitful and multiplied into the tens of thousands some 75 years later, forming the dedicated core of believers whose two ultra-Orthodox political parties control the sway of power in Benjamin Netanyahu’s tightly held – for now – coalition.

Expert opinion

Amid the ongoing social and anti-social media uproar over the Netanyahu government’s proposed judicial reformation of Israeli society, we would do well to consider the views of experts. One notable opinion was expressed by former Supreme Court justice Prof. Yitzhak Zamir (Haaretz, 5.1.23):

“Israel’s democracy is a parliamentary democracy (unlike, say, America’s presidential democracy). In a parliamentary democracy, supreme power rests with parliament – that is, the elected legislature, which represents the people. In other words, in a parliamentary democracy, the primary rules governing the country’s way of life are determined (subject to any restrictions imposed by a constitution or Basic Laws) by the positions of a majority of parliament’s members.

“This is also the main argument (and as far as I know, the only one) being made publicly in favor of a law allowing the Knesset to override Supreme Court rulings. This argument holds that if a court ruling contradicts the will of a majority of Knesset members, which reflects the will of a majority of the people, the Knesset’s will should take precedence over that ruling. To this end, an override law is needed that would enable a majority of Knesset members to overturn any ruling.

“But in reality, Israel’s situation is different, primarily because here, the Knesset’s decisions don’t necessarily reflect the will of most of its members. This is mainly due to tight, effective coalition discipline. Thanks to this discipline, the governing coalition’s Knesset majority generally votes unanimously in favor of any government decision, even if it doesn’t reflect the true desires of all the Knesset members voting for it.

“As the Supreme Court once put it, ‘as a rule, the cabinet controls the Knesset de facto.’ Therefore, it’s definitely possible that a decision by the coalition majority might not represent the true desires of a majority of Knesset members and also not the true desires of a majority of the people, but only the desires of a majority of the cabinet.

“And indeed, more than it is a parliamentary democracy, Israel is a coalitionary democracy. In such a democracy, even though there are theoretically three main branches of government, as required by the separation of powers doctrine, in practice, there are only two branches. One is the coalitionary branch, which is both the executive and the legislature, while the other is the judiciary. 

“This situation obviously increases the role the judiciary plays in the system of checks and balances that every democracy needs, and especially Israel, where this system is very deficient compared to other democracies. In fact, in the current situation, the judicial branch is the only body capable of exercising effective oversight of the coalitionary branch so that it doesn’t violate the law or the Basic Laws, doesn’t exceed the authority the people gave it, and doesn’t abuse this authority. Consequently, it’s also clear that the override law, which would thwart judicial review of the coalitionary branch, would pave the way to legitimizing any arbitrary or corrupt act…

“It’s therefore quite possible to have a Knesset decision passed by the coalition majority in accordance with the cabinet’s decision that not only doesn’t represent the true views of a majority of Knesset members, but doesn’t even represent the true views of a majority of cabinet members. Instead, it merely represents the prime minister’s position – in other words, the opinion of one man. 

“The fact that no other democratic country in the world has an override law (with two exceptions involving countries whose circumstances are completely different from Israel’s) proves that the claim that democracy requires an override law is a ridiculous one.”

Judicial revolution

Here it may be helpful to note the back story of former chief justice Aharon Barak’s so-called “judicial revolution” – the first time Israel’s Supreme Court overruled a law (the Mizrachi case, November 9, 1995). The High Court is, in Zamir’s view, “the last defense of the majority, not merely of its civil rights, but of its underlying values.”

“When I talked about a constitutional revolution, I was not suggesting that judges could do everything, but only that the development of the Israeli constitution must respect the principles laid down by the Declaration of Independence. Further, judges are under an obligation to develop and enforce these principles, in particular when the Knesset’s work as constituent assembly remains incomplete. 

“Judicial review expresses the values of the constitution. By its means, the judge fulfills the values of the society in which it lives. He [or she] reflects the fundamental understandings of society as it moves through history. It is precisely the judge – who does not have to stand for reelection by his critics, who enjoys judicial independence – who is fit for this position. This is precisely because the judge is not elected directly by the nation, and does not present a political or social platform, that he is able to give expression to the depths of society’s conceptions, without being influenced by the passing hour’s beliefs. To this purpose, he must act with judicial objectivity. He must reflect the views of society, even if they are not his own.“

Back to basics

Here it is instructive to consider some of Ben-Gurion’s thoughts at the formative outset of the Israeli experiment in Jewish democracy, at the 117th meeting of the first Knesset, on February 20, 1950. These excerpts are from his address to the plenum, which ran for 18 pages:

“To my regret, I could not, for circumstances not dependent on me, be present during the important debate on the constitution. However, I have read all of the speeches with interest, and I participate in this clarification not without the greatest respect. This dispute penetrates to the crucible of the state. In part, it demands professional knowledge that many of us lack, myself among them. Participants in this debate were professionals, learned lawyers, and it was not easy for a layman like me to take part. However, the subject was a matter of state, and in the end every citizen must decide about it, and as a citizen of the state I see that I owe it to myself to express my opinion, knowing in advance that I must argue with friends from whom I can learn more than a little about this area…

“The dispute before us is: a constitution or laws. A foundational constitution, all inclusive and superior, or basic laws that determine the other laws of the state and its practices and defines the rights and duties of the citizens…

“Opinion has been expressed in this dispute by the deputy speaker of the Knesset, Mr. [Nahum] Nir, and by Knesset Members [Menachem] Begin and [Meir] Ya’ari, that this question has already been decided and that there is no problem or question at all. In Mr. Nir’s opinion, the matter was decided by the United Nations General Assembly, although he adds that the resolution of the UNGA does not obligate us. In the opinion of MKs Begin and Ya’ari, the issue was decided by the Declaration of Independence. MK Dr. [Zerach] Wahrhaftig has already refuted these arguments. As one of those who was known as responsible for the mentioned documents, I would like to make things perfectly clear…

“On January 25, 1949… the regular, elected authorities of the state were established, and on March 10, 1949, the first regular government was approved by the Knesset, in accordance with the constitution.

“I regret to point out that, even this time, MK Begin claimed: ‘Not one of you discovered that there would not be a constitution, and even now no one can say that there will be no constitution. The matter is pending.’ Mr. Begin was not precise, as is his habit. No single person could determine the Knesset’s decision. If the Knesset decides there will be a constitution – there will be a constitution. If the Knesset decides that, for the time being, there will not be a constitution, there will not be a constitution…

“But nobody can claim that the matter has been resolved. It depends on the decision of the Knesset.”

Back to the future

Seventy-three years later, it is highly improbable that a bitterly divided Knesset and a polarized public are capable of resolving the issue on their own, particularly during a blitz of partisan coalition bills that deliberately undermine the state of law. Israel’s best hope may rely on the actions of a non-politician who is, so far, above the fray: President Isaac Herzog.

He could take steps to resolve the nation’s 75-year-old, still-pending debate by convening a constitutional convention. Delegates would be entrusted with producing a foundational constitution: a historic, molecular reorganization of society that would incorporate our Declaration of Independence as its initial bill of rights and our Basic Laws as its amendments.

Just as the founding fathers of America had the wisdom and fortitude to create a constitution during the epic struggles of their revolution 247 years ago, we have the power and the opportunity to fulfill Zionism’s promise of a truly democratic Jewish state. This can be accomplished by separating compulsory religious restrictions from the civil law governing society, what is known among civilized people as the separation of religion and state. One result would be a new equality of civil rights, by which any citizen would be free to marry any citizen in a civil or religious marriage.

Such a crazy plan was implemented by Theodor Herzl in his Altneuland: “Matters of faith were once and for all excluded from public influence.... Whether anyone sought religious devotion in the synagogue, in the church, in the mosque, in the art museum, or in a philharmonic concert, did not concern society. That was his [own] private affair.” 

We appeal to President Herzog to convene the Zionist constitutional convention of our time, to wrest true democracy from the liberal theocracy of which we hypocritically boast in vain.  ■

The writer is a former chief copy editor and editorial writer of The Jerusalem Post. His debut novel, The Flying Blue Meanies, is available from Amazon.