Israel Lacks a Constitution, Which Would Be the Solution to Many of Today’s Disputes
In its almost 75 years of existence, Israel has yet to agree on some of its basic principles
Since Israel’s new government took office, it has floated various reform plans that have been controversial among some segments of the population. Judicial overhaul and efforts to bring back as a government minister Shas party leader Aryeh Deri, who has been disqualified from receiving a portfolio by the Supreme Court, are two of the central disputes. These, and many other disagreements throughout the country’s history, would not exist if Israel had a constitution, experts say.
According to Dr. Guy Lurie, a research fellow at the Israel Democracy Institute, when Israel was established in 1948, there was an understanding that it would have a constitution. The first election to what would become the Knesset, the Israeli parliament, was supposed to also include electing members of a constituent assembly whose job was to draft the constitution.
But various divisions as to what should be the nature of the state prevented the constitution from being drafted, Lurie told The Media Line. Among them were religion and its place in the state, and the flexibility that the government would have in using its power.
Former Tel Aviv District Court Vice President Oded Modrik, who currently is a senior lecturer at Ariel University, told The Media Line that one of the main issues that prevented the needed consensus to create a constitution was, and is, the great differences that have existed between segments of Israel’s population, “for instance, [between] the ultra-Orthodox, the secular, and the Muslim,” he explained.
Dr. Ori Aronson, senior lecturer in the law faculty at Bar-Ilan University, noted that the young state of Israel in the 1950s was going through several security and economic issues which also contributed to the non-implementation of a constitution.
There are many principles and doctrines and basic clauses that we can agree upon, but then the rest remains standing for dispute, and we can’t reach any agreement
Lurie adds that Israel was very much influenced as a former British colony by seeing England as a place where democracy functions without a constitution.
All these issues drove the government to decide not to move forward with drafting the constitution, and instead to enact basic laws incrementally and gradually, which later would become a constitution, Lurie explains.
Aronson told The Media Line that, once every few years, the Knesset legislates another Basic Law that looks like another chapter in any constitution. These Basic Laws over time have grown to be accepted as having a kind of constitutional effect, he explains.
Still, Aronson adds: “There are some very fundamental issues within the Israeli society that have never been settled, and usually constitutions set up to some extent this kind of basic question,” he said.
Modrik notes that one of the main elements that Israel’s political system lacks is a basic law of enactment. “That is why there are so many disputes between the factions of our society,” he said.
The main challenge, according to Modrik, is that “you can change your values, principles, and doctrines time and again because they are not defended by a constitution. So, a simple majority of the parliament can change everything, every day, which causes great disputes,” he said.
The fact that Israel’s Basic Laws go through the same legislative process as any other law, only requiring a simple majority in the Knesset, is problematic since, in some ways, it lessens the superiority of these Basic Laws, says Aronson.
In addition to that, Lurie said: “We don’t have a consensus as to the rules of the game. What are the ways in which the regime functions, what are the relationships between powers of government, and what are the limits that the regime has.” He adds that there is no enshrined Bill of Rights that defends or protects the basic rights of the citizens and other inhabitants of Israel.
Modrik recalls that there have been various attempts to form a constitution, with no success. “There are many principles and doctrines and basic clauses that we can agree upon, but then the rest remains standing for dispute, and we can’t reach any agreement,” he said.
“Israel is not like any other Western society which is in a way united,” he said, attributing the problem to the deep differences between segments of the population which cannot agree on several basic principles.
Aronson says that there have been attempts to at least formally legislate what are called the “Basic Laws of insulation,” which would give a sort of formal structure to the existing Basic Laws and formally state their superiority to other laws.
“That would fall short of having a full, complete constitution but would give order to everything that’s been done so far. This has not happened either yet, but they have been having some suggestions to do that,” he explained.
If a consensus could be reached about a constitution, that will solve or mitigate some of the basic tensions that prevent us to this day from enacting our constitution
If drafting a constitution was on the table, Lurie says that there is no such Israeli law as to how to draft the constitution. One possibility, he said, “would be simply completing all of the chapters of the constitution, going forward with enacting the rest of the Basic Laws that would need to be enacted.” He proposes adding that laws regarding legislation, the definition of the powers of the Supreme Court, and a Bill of Rights should be included.
Another theoretical possibility, Lurie continued, “would be a new constituent assembly whose job would be to complete the constitution.” He recalls that in 2006 Israel’s parliament had a process of trying to complete a draft of the constitution which is published but not considered a formal institutional document.
Ironically, a constitution would be the answer to solving the problems that prevent the country from drafting one. “If a consensus could be reached about a constitution, that will solve or mitigate some of the basic tensions that prevent us to this day from enacting our constitution,” Lurie concluded.