Yohanan Plesner, the president of the Israel Democracy Institute, joins us to discuss the past accomplishments and future challenges of democracy in Israel. Ahead of the 70th Independence Day celebrations, the IDI will launch the Democracy Pavilion along the Independence Trail in Tel Aviv, with a view to celebrating its many achievements and educating local and international visitors about its importance.
Sponsors
This episode of the Tel Aviv Review was brought to you by the Israel Democracy Institute, an independent center of research and action dedicated to strengthening the foundations of Israeli democracy.
Show Your Support on Patreon
Receive extra segments, book discounts, and other patron-only perks by supporting the show on Patreon. Click to find out how a handful of dollars a month can help.
Photo: Miriam Alster/FLASH90
“We are now building it [a constitution] piece by piece.”
–the interviewee
—
The above is precisely the dilemma of Israeli constitutionalism. The Declaration of Independence called for the writing of a constitution within a few months after the Declaration’s promulgation. A Constituent Assembly was duly called and began work on such a document, but soon transformed itself into the legislative Knesset with intent to piecemeal form a constitution over time. Ever since, the Knesset has had, as former Chief Justice Aharon Barak has put it, “two hats,” one as legislature, one as constitutional convention.
A constitution, however, is meant to constrain a legislature; how can a single body devise rules which foundationally limit its power when it itself creates those rules under whatever form of majoritarian rule it likes (absolute majority; supermajority; majority of quorum, quorum open to change)? The power to declare a constitution is of final sovereignty. Ideally, the drafting convention should convene solely for that purpose, then disband, a plebiscite called to ratify the document, then a legislature elected under its provisions. This three step process prevents easy control by any small political network. Those drafting may not win later election into the legislature, so are more likely to craft that body without eye to personal or associate gain; and a plebiscite forces writers to consider opinions not their own, offering an electoral veto, giving the populace a sense of control and belonging to the instrument.
But the Israeli case is worse than this “two hat” absolute sovereign. The Declaration stipulates, in quite clear, forceful language, that social and political rights are to be invariant to race, religion, and sex; that there shall be “freedom of religion, conscience, language, education and culture.” Both of these formulations come from UN General Assembly Resolution 181 which required that proposed new States in Palestine put exactly such language in written constitutions. Either the Declaration Constituent Assembly affirmed such intent or it was lying, the latter really not mattering, as the words were affirmed by Assembly vote. The affirmation was not contingent on a parallel development in a State of Palestine, nor on further UN action; rather, the Declaration was self identified as the bootstrap, autonomous, self formation of Israel. The Declaration calls for, so mandates, a second Constituent Assembly, this one soon turning itself into the Knesset. Since the Declaration is the source for this second Assembly, its electorate so knowing at time of vote, its other provisions must have the same force as the reason for call to Assembly. The stipulated rights language of the Declaration cannot, then, be simply “guiding principles,” as they are part of the very mandate to form the ultimate sovereignty of the constitutional convention. This ultimate sovereignty was usurped by the convention when it turned itself into the Knesset. Minimally, the Knesset cannot form any constitution, but only those adhering to the language of the Declaration.
Such adherence is possible only if the Knesset is checked by an external source, and the only source available within Israel, rightly available, is the High Court. Under the very genealogy of the Knesset, any constitution it forms must be subject to review by the Court. Even when the Knesset acts without a written constitution this is so, for the Knesset was formed by a constitutional convention Constituent Assembly, so its acts, again, are restrained by the convening document of the Declaration. Since the Declaration constrains ANY constitution formed, it acts as a written meta-constitutional document interpretable by the Court.
This is the only way to check Knesset Supremacy, doing so through the genesis of the Knesset itself. The Knesset cannot restrict judicial review of matters under the purview of the Declaration, and it cannot override judicial determination on those matters. The Declaration inherently has a restricted judicial supremacy within it, once fused with the quasi-Anglo court structure inherited from the Mandate; otherwise, the promise of the Declaration is vacuous. The piecemeal constitutionalism of the Knesset is not absolute constitutionalism but, in part, merely elaboration of doctrine in the Declaration; that is, Knesset “Basic Law” is more like general legislation than constitutional text. Israel’s long, slow motion constitutional conflict between Knesset and Court ultimately reduces to the failure of the Knesset historically to adhere to Declaration imperatives. Until the Court recognizes this and so declares, it will continue to see its power attritted by the Knesset.
There is the counter case of British Parliamentary sovereignty. But such sovereignty evolved over centuries with four interlinked bodies: the Commons, the House of Lords (until a few years ago the court of final appeal), the Crown, and an extended court system coming to curtail, in practice, both Crown and Parliament via the common law, crafted by many judges over those centuries. A tradition of informal constitutionalism evolved which constrains to this day, too much deviation threatening the alienation of elites and electorate. Israel has not this extended evolution. Instead, an indirect populism via Knesset Supremacy vies with a Zionist principle of equality for the returned, both within the Knesset and through multi-level court decisions, Knesset Supremacy winning though its control over High Court nominations, a threat to annul Court decisions directly, and a tendency to ignore court opinions by working around them. But a Court which came to declare judicial review via the Declaration might well find Justices, over a wide range of appointments, adhering to the principle for institutional survival.
Many States have constitutions allowing change by Parliamentary supermajorities. Instructive, however, is that of Germany, which forbids alteration of some of its clauses, a demand the allies placed on nascent West Germany to win its independence. Populism is really not of the people. It is an attack on institutions, defined by a large part of the electorate of the moment as hostile to their interests, allowing a new elite to eclipse old. The People are inherently manifest ephemerally. An election changes opinion within the electorate after outcome, some shifting allegiance, some giving up, some empowered to new goals. Laws created by a winning coalition can alter social and economic structure, thereby altering the character of the People.
There is no such thing as a People desirous and invariant. Elections, and judicial decisions, are contests over social structure. What is at stake in Israel are the ground rules of such contest, and the People will be used and possibly discarded to elite ends. Judicial Supremacy on issues of equality in law deal with individual treatment, mapping directly to singular lived lives. Legislative populism constructs a story of the People and then endeavors to force it into perpetual reality, while Declaration restriced Judicial Supremacy leaves the character of the People open ended. The former, then insists on a singular invariant definition of People while the latter insists that such a thing is impossible, a constitution having to recognize this.
I have come to the view that only a handful of Justices can solve the dilemma of Israeli constitutionalism. If they take that gambit, they must hope that it fractures politics to allow the formation of new ruling coalitions. The Justices would act as a ratchet, preventing Knesset backsliding, for any affirmed Knesset Basic Law can later be changed, to do so offering electoral gamble. A right affirmed by stable majorities is really not a right under judicial review, for the legislative process will keep it afloat anyway. Rights are inherently minoritarian, relying on the principle that we are all at some point part of a minority.
The Knesset can be no more important than the Declaration which birthed it. That’s the way forward. Or at least so I have been saying, too often, for several years.