Introduction
Israel is one of only two democracies in the world (alongside England) that has not enacted a formal constitution, despite a clear decision by the Constituent Assembly to do so. This raises fundamental questions: Why has a constitution not been established? What are the consequences of this ongoing absence? And most importantly, can this be changed?
The Establishment of Israel and the Absence of a Formal Constitution (1948-1950s)
When the State of Israel was established in 1948, its founders envisioned the creation of a formal constitution. Israel’s Declaration of Independence explicitly mentioned that a constituent assembly would draft a constitution by October 1, 1948.
“ We declare that, (...) until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People's Council shall act as a Provisional Council of State, and its executive organ, the People's Administration, shall be the Provisional Government of the Jewish State, to be called "Israel".”*
However, this never materialized due to various political and social challenges, notably disagreement between religious and secular factions. Religious groups feared a constitution could limit the role of Jewish law, while others argued that a formal constitution was necessary for democratic governance.
In 1950, the Knesset adopted the Harari Compromise, named after Knesset Member Yizhar Harari, which proposed that instead of drafting a complete constitution in one go, the constitution would be written gradually, chapter by chapter, in the form of Basic Laws.
”The First Knesset instructs the Constitution, Law and Justice Committee to prepare a draft State Constitution. The constitution will be built chapter by chapter, in such a way that each will constitute a separate Basic Law. The chapters shall be presented to the Knesset when the committee completes its work, and all the chapters together shall comprise the Constitution of the State.“**
These laws have since functioned as de facto constitutional elements. They address the structure of the government, the rights of individuals, and the judicial system but do not encompass a single unified document like most modern democracies.
Basic Laws and the Evolving Legal Framework (1950s-Present)
Throughout the decades, the Basic Laws have been periodically amended and expanded, addressing key aspects of governance such as the Israeli Knesset, the judiciary, and fundamental rights.
However, the lack of a formal constitution has led to ongoing legal debates and challenges, particularly regarding the balance between democratic values and Israel’s Jewish identity.
In 1992, a significant step was taken with the adoption of Basic Laws concerning human rights, such as Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, which are now central to Israel's legal and judicial framework. These Basic Laws are crucial to protect fundamental rights and civil liberties.
In this context, as Israel lacks a constitution, they allow the Supreme Court to review laws that might infringe on these liberties, anchoring democratic values in Israel's legal system.
Moreover, with this lack of a formal constitution, the power of these laws can be more easily amended or overridden by the Knesset, creating tension between the legislative and judicial branches.
The Supreme Court, its Role and Consequences of Limiting Its Power
The Supreme Court plays a vital role in interpreting and upholding Israel's Basic Laws, which serve as the nation's de facto constitution in the absence of a formal, written one.
Through its judicial review of legislation and government actions, the court ensures that these laws are respected, helping to protect individual rights and maintain essential checks and balances on the legislative and executive powers.
Limiting the Supreme Court's authority would weaken these safeguards, making it easier for the Knesset to amend or bypass Basic Laws. Such a dynamic could not only destabilize the current legal framework but also complicate future efforts to establish a formal constitution, as judicial oversight is a key component of constitutional democracy.
Recent Developments and Judicial Overhaul (2023-Present)
In 2023, Israel faced (and still faces) one of its most significant political and judicial crises in recent history. The judicial overhaul initiated by the government aimed to curtail the powers of the Supreme Court, sparking widespread protests and international concern.
The 2023 amendment to Basic Law: The Judiciary, part of the judicial overhaul proposed by the Israeli government, aimed to limit the Supreme Court’s ability to use the reasonableness standard to review government decisions.
The change was seen by many as an attempt to reduce judicial oversight and shift more power to the executive and legislative branches. This sparked widespread protests, as it highlighted how easily the Knesset could amend Basic Laws to undermine judicial authority, deepening the ongoing tension between the branches of government.
Critics of the overhaul feared that weakening the judiciary could harm democratic norms and lead to autocratic rule. The government, however, argued that the Supreme Court had overstepped its authority and reforms were necessary for balance.
This judicial overhaul, coupled with ongoing regional conflicts, brought the conversation about the need for a formal constitution back to the forefront of Israeli politics. Many saw the absence of a constitution as a contributing factor to the instability, as there were no clear entrenched legal frameworks to resolve such deep disputes.
The "Constitution for the Homeland" Campaign: A Contemporary Initiative
In response to the political instability and the judicial crisis, the Movement for Quality Government and the Constitution Forum launched the "Constitution for the Homeland" campaign. This initiative aims to institutionalize democratic values through the formal adoption of a comprehensive constitution, a move seen as crucial to ensuring political stability and safeguarding Israel’s democratic identity.
The campaign emphasizes the need for a constitution that reflects Israel's multifaceted identity and provides a stable legal framework for governance, individual rights, and equality. The proposed constitution is intended to preserve Israel as a Jewish state while ensuring equitable treatment for minorities and equal duties and rights for all citizens.
The urgency of this movement is underscored by the ongoing judicial crisis and societal divisions. Recent surveys show strong public support for a constitution, with many Israelis agreeing that it should be based on the Declaration of Independence.
Surveys by the Israel Democracy Institute found that a majority of Israelis support the adoption of a formal constitution, with many advocating for it to be based on the principles outlined in Israel's Declaration of Independence.
Conclusion
Since its founding, Israel has grappled with the absence of a formal constitution, instead relying on Basic Laws to guide its governance. However, political and societal developments, especially the 2023 judicial overhaul, have amplified calls for the enactment of a comprehensive constitution. Some initiatives, such as The "Constitution for the Homeland" campaign, represent a significant effort to bring about this change, aiming to unify the nation through a legal framework that balances democratic values with the country’s Jewish identity.
Article Written by The Movement for Quality Government
Instagram - @mqg.israel
Website - https://mqg.org.il/en/
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