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President Reuven Rivlin made a chilling start-of-the-winter-legislative-session speech to Knesset, in which he warned that Israeli democracy itself may be imperiled.
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This is a segment from The “A Presidential Address of Existential Distress” Edition.
It is not that the judicial left went too far and now the legislative right is rebounding too far, but that constitutional stability is impossible without a written text which, while subject to interpretation, holds a leash with the meaning of words: one can only go so far in pressing interpretation. (Of course, a look at US jurisprudence on two words, “due process,” may have you guffaw me out the door.) One commentator in the podcast says that the judiciary made “Basic Law” into something new. But all along Basic Law was supposed to be a piecemeal constitution which would satisfy the promise of the Declaration of Independence, which called for a written constitution by an early date. Instead, the Constituent Assembly convened to fulfill the Declaration turned itself into the legislative Knesset.
From that act all your present constitutional conflicts come. The judiciary would have been rewritten by a constitution approved by plebiscite. Instead, the judiciary had to boot strap itself, importing its role during the Mandate as partial self template. The Barak court took 1990s created Basic Law as constitutional, but that is absurd. If the legislature polices itself by writing its own rules, then the only checks are overtly party political–and may be rewritten by a future Knesset. Already new Knessets have ignored laws stipulating supermajority overrides created by past Knessets. A Constituent Assembly writing a constitution should pass its product to the electorate for approval, then disband, election for a legislature under the new approved document by another contest thereafter; in this way Assembly delegates have no immediate interest to frame the legislature to their ends. But, worse than this, the Assembly transformed the plenary power for writing a constitution into effectively unlimited power in drafting law. The court, orphaned into limbo, had to similarly self create its own power–power which should have been defined in a written document. What you see these days is simply the logical fruition of the decision to “postpone” a written constitution indefinitely–and a Basic Law, drafted by the legislature, is no true constitution.
One might reply that that is exactly what the UK does. I think this not true in the long run, but defer the argument. Here I note that the British courts had centuries of evolved common law, thereby having real claim to a long standing, independent existence; further, until rather recently the House of Lords was acknowledged as the final arbitrator of constitutional law, not the Commons.
The Declaration of Independence promises explicit protections in ANY drafted constitution. The first Constituent Assembly, then, in proclaiming Israel, also proclaimed meta-constitutional requirements upon any constitution, written or not, as core to Israel’s defintion. You have an unalterable constitution, but all are afraid to admit it, for the power of interpretation would have to reside with the judiciary. It is not that a past true constitutional balance has been lost, but that the Knesset formed itself as an act of usurpation against a promised written constitution. Saying that the writing is at the whim of the Knesset produces legislative supremacy, and Miri Regev’s comments post Rivlin’s speech are a simple extension not of populist democracy but legislative supremacy. If you listen to her, she declares that the Knesset is the State; this is a fundamental tenant of fascism, even if and when the legislature becomes merely formal or is suspended for the duration of “emergencies.” The People is then defined by the State; pluralist democracy, in contrast, is constitutional democracy with clear rights limiting legislative and executive power, rights which can only be secured by a judiciary. Rivlin wants MKs to play nice. Since the original Constituent Assembly refused its own foundational mandate, how can you expect politicians with the ability to create constitutional law in a country of vast military and economic resources to be any better than then?
Lastly, your politics of today will not abide a true constitutional assembly or convention. The only hope for constitutional thought is then for the judiciary to proclaim the Declaration–which no one may alter in wording–constitutional, and review both laws and executive actions in its light. Otherwise you will continue your dance to fascism. But, be comforted–it will be a new, you get to vote, fascism.