Wednesday, December 6th | 23 Kislev 5784

September 20, 2018 9:26 am

A Looming Constitutional Crisis in Israel?

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avatar by Johnny Green


Israel’s Supreme Court. Photo: Wikimedia Commons.

The most important part of Israel’s new Nation-State Law may well be its constitutional implications, which have been overlooked by the countless opinion and analysis pieces that have focused their attention on the law’s content. Regardless of whether one approves of the Nation-State Law, a Supreme Court challenge in the coming months will likely reshape Israeli constitutional law for decades to come.

In a nutshell, the Supreme Court has struck down ordinary statutes as unconstitutional in the past, due to their inconsistency with Israel’s Basic Laws. But the Nation-State Law is a Basic Law.

Israel has no “constitution” in any commonly accepted sense of the word. There is no comprehensive document capturing the “essence” of the Jewish state, declaring its most sacred rights, and defining the powers and limitations of the various organs of government. Claiming that Israel has a constitution requires logical acrobatics that only lawyers and judges are capable of.

Nonetheless, Israel has a set of “superior” statutes called “Basic Laws” that define a considerable amount of Israel’s political and legal backbone. The Supreme Court considers these Basic Laws as forming a quasi-constitution, and has interpreted them in ways that expanded their effect and significance.

Most notably, the Israeli Supreme Court has ruled that some Basic Laws empower the court to strike down primary legislation, if inconsistent with such Basic Laws, as unconstitutional. Seeing as Israel has no “constitution” to speak of, the Court maintains that the Basic Laws are akin to a constitution. Following the Court’s reasoning, the Basic Laws are (so far) the sole legal source to invalidate an “ordinary” law as unconstitutional. In many instances of invalidating government action, and indeed in all instances of striking down primary legislation, the Supreme Court has done so on the grounds of a violation of a Basic Law.

The recent Nation-State Law was legislated as a Basic Law. And striking down a Basic Law, however distasteful or disagreeable it may be, would in fact be declaring a part of the constitution unconstitutional. This would be a radical departure from precedent, and indeed, the Court has never attempted a ruling of this kind.

The Court may argue that the Nation-State Law contradicts existing Basic Laws. Yet this would be a stretch.

First, faced with two competing Basic Laws, who is to say which law is superior to the other? There is a logical flaw to declaring that a constitution (or amendment) is “unconstitutional” — surely a contradiction in terms. There is also a view in legal interpretation that if two contradictory rules have equal standing, then the judge is to prefer the latter and more specific rule — and the Nation-State Law likely prevails on both these counts.

Further, as Basic Laws go, the Nation-State Law has by far the most “constitutional” character of all the laws passed to date. It has been a point of thorough public debate for the past six years. It received widespread media, academic, and political attention, and was consciously regarded as a constitutional amendment from the outset. Importantly, it was legislated in a major political “event” and passed with an absolute majority of Knesset members in a stable coalition government — 62 out of 120 members.

Compare this with the highly influential “Basic Law: Human Dignity and Liberty.” It gained a minor majority of 32 vs. 21 Knesset members (out of 120 members). The legislators who voted in favor explicitly stated that this was not a constitutional law, and that it did not grant the Supreme Court the power of judicial review. It received no media attention, was not perceived as a constitutional act, and most of the public was hardly aware that it existed.

Two other options have been suggested, including by former Supreme Court judges, to justify striking down the Nation-State Law. The first is to elevate the Israeli Declaration of Independence to super-constitutional status, and to declare the new law as incompatible with the Declaration. In the past, the Supreme Court ruled plainly that the Declaration does not possess constitutional authority, for obvious reasons: it was drafted by a group of un-elected statesmen and was never intended as a legislative text, much less so a constitutional document.

The second option relies on “fundamental principles” of democracy. This is a vaguely defined list of values and rules, which one might consider so essential to democracy that they form an “unwritten” constitution that cannot be violated. As such, a court can strike down laws, amend a constitution, or in fact reach any decision at all, based on these abstract “principles.” The Supreme Court did in fact employ a similar argument in a 1953 ruling. However, the ruling related to governmental action — not primary legislation, and nothing approaching a constitutional amendment.

Both the Declaration of Independence and the “principles” suggestions share some common flaws. Who determines the “correct” interpretation of the highly abstract and obscure Declaration? Who defines these unwritten principles and their application to real life controversies? Better yet, how can the legislature go about amending such a “super-constitution”? There is no existing mechanism for amendment of the Declaration (excluding time-travel), not to mention the “fundamental principles” of democracy. And why would such an amendment prevail, while a Basic Law is invalid?

More important are the public and political repercussions of such a ruling. Striking down the Nation-State Law for any one of the reasons above would irretrievably shatter the Court’s credibility. A common criticism against the Court’s judicial activism is that the judges rule according to what they feel is right, and not what they know is legal — a cardinal sin for unelected officials in democratic society. On the other hand, the Court has always maintained that it is merely applying the Basic Laws in their most natural and inevitable way.

The Nation-State Law was created as a conscious extension of the above debate. Those in favor of the law consider it a good faith attempt to guide future rulings on key issues. If the Court is genuinely applying Basic Laws, it can have no legitimate objection to the new law. A ruling against the new law in this context would be catastrophic for the Court. It would serve as evidence that only those Basic Laws the Court finds convenient are honored while those the Court finds distasteful are discarded. And it would severely undermine the Court’s assertion of faithful application of Basic Laws.

As it stands, public confidence and support for the Supreme Court is now at an all-time low. Striking down the Nation-State Law will likely provide the public and political justification for redoubled measures curtailing the Court’s authority, for all the reasons detailed above. Some might say this constitutional crisis in unavoidable, and has been a long time in the making. Either way, it will mark a watershed moment in Israeli society beyond the boundaries of constitutional law.

Yonatan (Johnny) Green, 31, is a qualified attorney in both Israel and the State of New York, and is a project manager for a leading Israeli technology company. He was born and raised in Israel to parents from the US and the UK.

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