Roundtable: Constitutionalism in Israel

Israel did have persistent debates about constitutionalism, in particular the question whether the courts should have judicial review over primary legislation which allegedly violates human rights. However, when the legislature seemed reluctant to pass such an entrenched bill of rights, and to legitimate such judicial review, the court has hinted that it may create such a power through judicial decisions. The debate then became centered on whether it was legitimate for the courts to assume this power without explicit legislative authorization. The two debates are still very much there, albeit in a different form. In 1992, the advocates of an entrenched bill of rights in the Knesset realized they could not enact a comprehensive bill of rights, so they passed two laws that seemed uncontroversial. These laws were then interpreted as creating a ‘constitutional revolution,’ which permitted the courts to assume the power to invalidate Knesset laws. At present, some people (led by Supreme Court President Aharon Barak) think Israel already has an entrenched constitution with judicial review, and that this is as it must be. Others believe that Israel has limited judicial review but no constitution, and that it should decide explicitly whether it wants the power and who should have it. Among those, some oppose a constitution and judicial review; others want a constitution with limited judicial review (after the Continental model of a constitutional court, or after the British or the Canadian models); and there are those who advocate a full constitution with full judicial review by the Israeli Supreme Court (a constitution of this sort is being proposed by the Israel Democracy Institute).

Ron Harris: Outside Israel and the UK, there are other legal systems in which the constitutional arrangements are not fully codified. In fact, even in the U.S., major constitutional doctrines, such as freedom of contracts or privacy, which are only loosely connected to the 14th Amendment, are not found in the written Constitution itself. On the other hand, the Basic Laws provide a significant degree of codification in Israel.

Codification is not the only interesting feature of constitutions. The supra-legal status is another, and entrenchment from change is yet another.

I believe that constitutionally, Great Britain and Israel are gradually becoming different from each other. The subjection of Britain to the European Convention on Human Rights, the enactment of the Human Rights Act in 1998, the membership in the European Union and the advancement of an EU constitution all indicate that the future of British constitutionalism is in Europe. The European conventions provide for Britain a codified, entrenched and supra-statutory constitutional framework. They allow judicial review of Parliament’s legislation by European courts. The long tradition of parliamentary supremacy that originated with the Glorious Revolution is ending.

Israel is not a party to any of the European conventions. Thus I believe that the Israeli constitution is becoming closer in some of its features to the US and Canadian constitutions. This process is supported by the political and cultural affinity between the U.S. and Israel and by the close ties between the Israeli and the American legal academia. It is manifested in the rise of judicial review in Israel, in the central political role played by the Supreme Court and in the resort of political and interest groups to constitutional discourse. I personally believe that the EU and the European Convention on Human Rights can open up interesting options for future development of Israel’s constitution. But as long as these will not materialize, Britain and Israel will drift apart constitutionally.

Barak Medina: The Israeli Supreme Court’s decision that the Basic Laws, enacted by the Knesset, are “supreme law” is based on the notion that the Knesset is the “formal constituent assembly,” and that the Basic Laws are the product of the Knesset’s constituent powers.

Establishing that an institution possesses constituent powers cannot be solely based on formal legal reasons. There is no formal rule which defines whether the First Knesset, which was elected to serve as the constituent assembly, was indeed the constituent assembly, or whether this assembly was empowered to delegate its power to the succeeding Knessets, as the First Knesset did. The decision must be based on an assessment of the general public perceptions, as well as on normative and political evaluation of the desirability of classifying a certain institution as possessing constituent powers.

In the Israeli context, the decision was based on the Court’s conviction that it is socially essential to classify the Basic Laws as the supreme law of the land. This belief results from three propositions: a) Given the Israeli political and social environment, informal conventions might not be sufficient to restrain the majority from deviating from the fundamental principles, including the protection of basic human rights. Effective and formally binding judicial review of the acts of the Knesset is inevitable in order to preserve the entrenched values of the country; b) Judicial Review which is based exclusively on unwritten principles is publicly unacceptable. To earn legitimacy it must be based on “positive” rules, on principles which were formally accepted by a democratically elected institution; c) The judicial review must be based on certain types of “written” rules—rules which are publicly perceived as “supra-legal,” based on the status of the body which enacted them. The Court’s assessment was that the reference to the Basic Laws, which the Knesset can easily amend, would produce the required legitimacy for judicial review. In addition, the Court believed that the Knesset would not abuse its power to amend the Basic Laws in order to override judicial decisions and deviate from fundamental principles. The experience in the last decade confirms these two assessments.

Similar sociological and political assessments are required in order to predict future decisions about the normative status of certain acts in other jurisdictions. It seems that even in Britain, informal conventions are not considered as sufficient constraints, mainly when the interests of aliens and the people of Northern Ireland are concerned. The result is the willingness to enforce the Human Rights Act of 1998, which partially restraints the powers of the British parliament, and serves as a “mini-constitution.”

Claude Klein: Not being an expert in British constitutional law, I would be careful in trying to imagine what the British judiciary could do. The solution which seems to prevail in the UK relies heavily on the status of the European Convention on Human Rights. Thus, for the time being, there is no real need for the kind of “constitutional revolution” which occurred in Israel. Besides, the Human Rights Act has certainly allowed for a certain period of moderation with regard to the research of a real “higher law” document in the UK.

All in all, the nature of the debate in the two countries cannot seriously be considered as bearing significant similarities. The differences in the political culture of the two countries are such that they render every comparison meaningless. There has been, in the past, a kind of “English” dream, in particular on the part of Ben Gurion who was eager to introduce the English electoral system in Israel, which was supposed to produce mechanically a two-party system. An all-party coalition (in 1958) rejected the idea. The entrenchment of the current electoral system in Basic Law: The Knesset is still the obstacle.

Have Israeli policy-makers avoided drafting a constitution because they find it advantageous to govern without one? Or does the lack of a constitution merely reflect the difficulties in establishing a national consensus about the content of such a foundational legal document?

Ruth Gavison: The short answer is that both reasons contributed to the fact that Israel is still in the midst of a long, unfinished constitutional process. One can see the combination of both reasons in the initial long discussion regarding the question of the constitution in 1950. In that historic debate, one can see those who argue that Israel needs the flexibility to act in order to deal with immigration, security, and acute development needs, and that it cannot afford to be constrained by a constitution. There is also mention of the fact that Israel cannot afford to have its policies defeated by the court as the US Supreme Court did in the earlier years of the New Deal. On the other hand, many talk about the fact that the constitution cannot take a stand on state and religion issues without triggering a ‘culture war’ between religious and secular parties. It is interesting to note that the Jewish-Arab schism was muted at this point.

In 1950, members of the coalition were the ones who voted against the constitution, while the right-wing opposition strongly argued in its favor. However, when in 1977 the right wing Likud came to power, it defeated moves to complete the constitutional process by legislating a Bill of Rights and a Basic Law Legislation, which would have granted Basic Laws supremacy, thus opening the way to explicit judicial review.1) The reluctance of those in power to bind themselves was clearly central to the fact that a constitution was not completed at that stage.

In the last decade, especially after the 1992 Basic Laws, there is a renewed interest in completing the constitution. One does not hear an explicit objection on the part of the legislature to the limiting of its powers. In fact, many argue that completing the constitution and regulating judicial review is the only way to constrain the power of judicial review the Supreme Court exercises in fact under the 1992 Basic Laws. There is a much stronger visibility among those who oppose the constitution to the argument that it is impossible to reach a consensus on the credo of Israeli society.

It is interesting to note that the groups that object to the constitution are those who should have been the main benefactors of one—the Arab and the ultra-Orthodox minorities. The first will be happy to see a liberal bill of rights and judicial review, but believe that the gains from these two will be minimal, while the concession that Israel be explicitly defined as a Jewish state will perpetuate their second-class citizenship. The ultra-Orthodox fear that a liberal bill of rights, as it is likely to be interpreted by the present Supreme Court, will undermine their ability to use their status as key political parties to secure protection of their unique interests through the processes of majoritarian politics.

Barak Medina: The First Knesset avoided drafting a constitution based mainly on the first reason. The unanimous consent of the representatives of the Jewish community to the Declaration of Independence, as well as the status-quo agreement regarding issues of state and religion, reflect that establishing a consensus about the content of a constitution could have been reached. The decision not to draft a constitution was based mainly on the view that an entrenched constitution might undesirably restrain the government in pursuing its goals. The British tradition served as an assurance that the democratic aspirations stated in the Declaration of Independence can be maintained even without a formal constitution. An additional reason might have been the hesitation to explicitly state, in a formal constitution, policies which discriminate against the Arab citizens.

In practice, the lack of a formal constitution did not prevent the judiciary from applying rather strict judicial review of the government’s activities, based on a judge-made bill of rights and other fundamental principles. The government generally respected these restraints, and only rarely initiated legislation to override the Court’s decisions, utilizing the lack of a formal constitution and the sovereignty of the Knesset.

The enactment of the constitution was not completed mainly due to partisan, political reasons. An overwhelming majority in the Knesset supported the enactment of a written constitution. Indeed, in a gradual process, which started in 1958, the Knesset enacted 11 Basic Laws, which are viewed as chapters of the written constitution. The Knesset failed to formally conclude the process mainly due to the objection of small political parties, who represent the ultra-Orthodox Jewish sector. These parties have utilized their political bargaining power to promote their interests and ideology, causing the majority to reluctantly accept significant infringements of fundamental principles, such as equal distribution of funds and burdens, the right to marriage, etc. An entrenchment of these fundamental principles in a formal constitution would have prevented the majority from accepting such demands, and these small political parties have thus struggled hard to preserve their ability to utilize their political bargaining power by opposing the proposals to complete the constitution.

The decision of the Supreme Court that the Basic Laws are Israel’s constitution has shifted the political debate from the issue of whether the process of drafting the constitution should be completed to the issue of what should be the content of the issues which have not been settled yet.

Ron Harris: The historical question of why Israel ended up without a constitution is still an open question. As is well known, the Knesset’s Harari Resolution of 1950 opted for a gradual enactment of Basic Laws, despite the explicit promise made two years earlier in the Declaration of Independence of 1948 to introduce a constitution. This resolution doomed the fate of the constitution. A common argument is that Ben Gurion passed the resolution as a concession to the religious parties. I am not convinced that this was the case. At least three alternative explanations can be offered. According to the first, Ben Gurion objected to placing constitutional restrictions on his authority. The second argues it was his desire not to impose a constitution by the “Founding Fathers” on the mass of future immigrants. The third is his understanding that a constitution should emerge from a viable, even republican, constitutional discourse—that was lacking in 1948 Israel—rather than being imposed “from above.” The last two explanations portray Ben Gurion in a much better light than the first two. There is much more to be studied historically before I’ll be able to decide for myself which of the explanations is more persuasive. Interesting historical work is being done these very days on this topic.

The question why a constitution was not drafted in recent years is of a different nature. The rules of the game are now different. The players are different. Most codified constitutions were introduced in formative periods, following revolutions, wars and crises. Such was the period 1948-50, but not any period since.

In my view a constitution was created in Israel gradually over the years. It is to be found not only in the Basic Laws but also in regular Knesset legislation, in Supreme Court precedents, and in British-style constitutional conventions. If a codified constitution is created in the future, and I am somewhat skeptical about the likelihood of this, it will in my view reflect the existing constitutional status quo. It will not alter it. The changes that will be introduced, if any, will be on the margins.

Alon Harel: Your question somehow assumes that the natural thing to do is to draft a constitution and therefore we need an explanation as to why this was not done in the Israeli context. This is not necessarily the case. For many years a constitution was not on the horizon simply because people did not think about it or did not think it is sufficiently important.

As usual, there is no single explanation for the absence of a constitution. The primary reason why a constitution has not been drafted differs in different times. I suspect the primary force blocking the drafting of a constitution at the moment is the fear that the Supreme Court is too Western and liberal and does not reflect the conservative, religious or nationalist sentiments of the Israeli public. This accusation was made again and again by conservative political and spiritual leaders. Many Israeli-Palestinians are also opposed to a constitution, which almost inevitably would declare that Israel is a Jewish state. Despite these hurdles there is now an effort in the Parliament to appease this opposition and to draft a constitution which will be agreed to by diverse segments of the Israeli public. A committee of the Parliament is now drafting a constitution and it invites numerous experts belonging to different segments of Israeli society to testify. It is also engaged in negotiations with both conservative elements and with Israeli-Palestinian representatives to draft a constitution which will enjoy broad support.

It is difficult to evaluate the desirability of a constitution at this moment. It seems to me that a constitution which will be consensual or almost consensual would be too empty and diluted to serve the purposes of a constitution. But this is merely speculation.

Claude Klein: The generally admitted reason for the non-adoption of a full-fledged constitution is mainly the religious question. In other words, the religious parties could not accept the idea that parliamentary laws could be endangered by judicial review. This is still the main reason. Nevertheless, it appears also that beginning with Ben Gurion, the main policy-makers were most reluctant and found it extremely convenient to hide behind the official “religious” motivations of the constitutional blockage. Ben Gurion understood the potential “danger” represented by judicial review. It remains true today that judicial review is perceived as an attack against the political class presented as speaking in the name of the people. In other words, the discussion regarding the legitimacy of judicial review is the main ground for the postponement of a real constitution.

Edna Ullmann-Margalit: In 1948, when the State of Israel was born, a Temporary National Assembly was formed as a Constitutional Assembly. It was charged with the task of drafting a constitution for the new state. The obstacles were many, but there can be no question what the main obstacle was: the religious parties’ opposition to the idea that the Jewish state will have a constitution that is secular in orientation—a constitution that will recognize the ahistorical authority of reason over the authority of the Torah. Having failed to accomplish its task within a year, the Temporary National Assembly dissolved and declared itself a Parliament (Knesset) without election, leaving the unfinished task of drafting a constitution to future generations.

The creation of an enlightened constitution requires a moment of grace and good will. The foundation of a state, especially after historical events such as a war of liberation or a revolution, provides a moment that can bring out the best and most generous general will of the people rather than their concern for special interests.

A golden opportunity was therefore missed, I believe, to frame an enlightened constitution for Israel. It is difficult to revive moments of greatness in the ordinary course of political life. The genuine fear is that a constitution framed in days of smallness would be an outcome of shabby compromise and would reflect contingent forces in the society.

The current moment is not a moment of grace. I do not believe that in the current cultural and political situation in Israel it is possible to reach a respectable compromise for an enlightened constitution. Israel’s best hope in this matter lies with its Declaration of Independence. While not perfect, this is a document of good will drafted in a moment of greatness. Its values of equality and religious freedom (freedom of religion and from religion) should be made the constitutionally obligatory interpretive rules for current ordinary laws, endowed with the power of judicial review.

As an afterthought I note the parallel between 1948 Israel and present-day Iraq: Will the new Constitutional Assembly there succeed where the Israeli one failed?

The American doctrine of separation of Church and State is based on the constitutional guarantee that the Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

What language protecting religious freedom could be included in a constitution for Israel, which considers itself as both Jewish and democratic?

Edna Ullmann-Margalit: Various individuals and NGOs currently attempt to draft their version of the Basic Law that will grant freedom of religion. While there are differences among them, the basic principles are common. Common to them all too is the conviction that it is indeed possible to find the language that will protect religious freedom to all in a Jewish and democratic state that has a sizable non-Jewish population. There is no question that a strict separation between church and state (or between “Knesset and beit knesset”) on the US model is not applicable in the Israeli case. For example, it is inconceivable in Israel that the public school system will not include religious schools. Recognized in the Declaration of Independence as a Jewish state, Israel is unlikely to adopt a basic law that will call for a religiously neutral public space. Thus, no basic law is likely to pass that does not explicitly call for kosher food in the military and in all state institutions serving the Jewish public and, likewise, for Shabbat and the Jewish holidays to be recognized as the established days of rest in the State of Israel. Non-Jews will be guaranteed the right to rest on their Sabbath and holidays. The state shall be allowed to support the public religious needs of its citizens and residents but it must be made to refrain from intervening in religious matters.

Still, the cornerstone of a basic law guaranteeing “Freedom of Religion” will have to terminate the monopoly of the Rabbinate (and of the equivalent Muslim and Christian bodies) over family law and the laws of personal status, notably marriage and divorce. The law will have to make it possible for every man and woman to marry and start a family without restriction on religious grounds. Moreover, the law must guarantee that any couple is to be allowed to choose to marry in a religious or civil ceremony, and that divorce be accordingly conducted according to the manner in which the marriage was conducted.

These matters are highly contentious in Israel today. As far as I know, the basic laws expected to be legislated in the foreseeable future are Basic Law: Legislation and Basic Law: Freedom of Speech; Basic Law: Freedom of Religion, while urgently needed, may have to wait.

Orit Kamir: Discussion of the separation of Church and State in the Israeli context is likely to focus on the lack of public transportation in most parts of the country on the Sabbath and Jewish holidays, acknowledging the class discrimination it entails; the restriction of commerce in most parts of the country on the Sabbath and Jewish holidays, as well as the legal prohibition on public display of bread during Passover are also likely to come up. But of the many disturbing consequences of the lack of separation between Church and State in Israel, the most acute is the systematic discrimination toward all Israeli women in the realm of family law. This discrimination is facilitated by Parliament’s refusal to enact a state law of marriage and divorce. Instead, an Israeli citizen is legally classified as belonging to a religious community, and is obligated to turn to the administration of that community for any legal service and proceeding regarding marriage and divorce.2) Such services and proceedings are conducted by orthodox religious authorities and personnel, who administer (their interpretation of) religious law.

Under this regime, women defined by the state as (religiously) Jewish are subject to the Halachic Jewish law, as interpreted by the Orthodox, male Jewish rabbis. Women defined by the state as Muslim are subject to Sharia law, as interpreted by male Muslim kadies. Women defined by the state as (religiously) Druze are subject to Druze religious law as interpreted by male Druze ministers, and Christian women are subject to the religious authorities of the different Christian sects recognized by Israeli law. Each one of these religious systems discriminates against women. Consequently, in the context of marriage and divorce, all Israeli women are explicitly discriminated against by these religious laws and by the authorities administering them. Further still, each group of women is discriminated against in a unique and different manner.3)

Non-Jewish religious minorities are also systematically discriminated against, most obviously through the uneven allocation of funds. Additionally, only Jewish men who are enrolled in Orthodox Yeshivas enjoy outstanding affirmative discrimination: They are exempt from army duty and receive state allowance.

Given this existing socio-legal reality, a laconic guarantee that the parliament shall make no law respecting an establishment of religion will not suffice. An Israeli constitutional guarantee of the separation of Church and State must relate in detail to the status quo. It must prohibit the assignment of citizens to religious communities, as well as their subjection to any religious law and any religious authority. It must prohibit any direct or indirect allocation of funds to any religious institutions. It must prohibit any direct or indirect discrimination toward a religiously defined group, or toward any group which is not affiliated with any religion. It must prohibit legislation of any religious law or arrangement. It must prohibit discrimination toward an individual or a group based on reference to a religious law. Equality for all must be enacted as a fundamental constitutional value.4)

The state of Israel is not, was never meant to be, and must not become Jewish in any religious sense. Some of its founders envisioned it as Jewish in the sense of containing a Jewish majority; others envisioned a state that would award Jewish culture and heritage a unique standing. Neither of these concepts entails the state’s religious Jewish character, which cannot accord with Israel’s democratic identity or with the fundamental commitment to equality and human rights for all.

Alon Harel: The strict separation of Church and State is only one possible route for a liberal constitution. I do not think this is the route that Israel would take. Most European countries including Britain and Germany do not separate Church and State. Instead, any constitution should protect both freedom of religion and freedom from religion. But protecting freedom and protecting separation of Church and State is not the same thing.

I do not see a serious conflict between the establishment clause and the official recognition that Israel is a Jewish state. The recognition of Israel as a Jewish state is not a religious proclamation. The conflict with equality provisions seems more serious to me and requires more consideration.

Ruth Gavison: First, it is not clear that the tension between ‘Jewish’ and ‘democratic’ in Israel’s self-definition is relevant here. Most Jews believe that Israel defines itself as democratic and Jewish in the national-ethnic sense, and not in the religious sense. That is, ‘Jewish’ here is used in the sense used in the 1947 UN resolution, in which the region between the sea and the river was divided into an Arab and a Jewish state. It is not ‘Jewish’ as against ‘Muslim’ or ‘Christian’. At the same time, in one of the famous cases of the US Supreme Court it defines the U.S. as a Christian country despite the First Amendment.

Nonetheless, definitions apart, constitutional regulation of state and religion issues is indeed one of the most serious obstacles on the road to an adequate constitutional consensus. The issues concern the relations between the state and the Jewish religion but also the relationships between the state and all religions and the relationships between the religions themselves. Present arrangements are based on either statutes or administrative regulations, at either the national or local level. The 1992 human rights Basic Laws were explicitly worded so as not to apply to this subject (although it soon turned out that they did affect, for example, arrangements of kosher food).

Israel has a decent level of freedom of religion. It does not have what is usually called freedom from religion. Most matters of marriage and divorce are under the monopoly of religious courts (and of the orthodox variety at that). This means that people can only marry people of their own religion, and that the ceremonies of marriage in Israel must be religious. Usually, burial arrangements are made by religious communities. While Israel does not have an official, established religion, it does finance and supply religious services of various sorts, including supporting systems of religious schooling for Jews (and Christians).

More closely related to the self-definition of Israel as a Jewish state is the characterization of ‘Jew’ in the 1950 Law of Return. Until 1970, the law did not contain an explicit definition of this term. Some defined ‘Jew’ according to Jewish religious law and some saw the context as suggesting a more national-cultural definition. But when the Court held that the children of a Jewish father and a non-Jewish mother could be registered as Jewish in their nationality, the law adopted a religious definition of ‘Jew’ (while granting rights of return to non-Jewish members of a Jew’s family).5)

So the first question for Israel is whether it wants to change these arrangements. If it does not, defenders of the status quo will be extremely reluctant to put anything in the constitution that might threaten it. Specifically, the right to freedom of religion (usually interpreted to include freedom from religion) will be problematic, especially if it is coupled by judicial review by the present Supreme Court which is mostly secular-liberal.

Indeed, some attempts to change this status quo took the form of proposed basic laws that would have declared rights to freedom of religion and from religion. Even when such bills proposed a constitutional immunity for the existing legislation, religious opposition prevented their enactment. It seems unlikely, therefore, that a constitution, as such, will be allowed to change the situation without substantive agreement on the various issues involved.

It seems therefore that the political impasse on this issue may in fact be beneficial. So long as the substantive issues are very controversial, constitutionalizing them will relegate the power to decide them to unaccountable courts. This may limit both their power and their legitimacy. These issues should therefore be left to the working of the political system, with its own mechanisms of compromise and give-and-take.

Barak Medina: Freedom of religion in Israel is only marginally shaped by the state’s “Jewishness.” The characteristic of Israel as a Jewish and democratic state is reflected in aspects related to the interests of the Jews as a national, cultural and ethnic group. These main aspects are preserving a Jewish majority in Israel, promoting Jewish immigration to Israel, and dominance of Jewish culture in the public sphere. As far as immigration is concerned, the country is open to immigration of those who are considered part of the Jewish people based on current cultural perceptions, which substantially differ from the religious definitions. As far as the public sphere is concerned, the enforcement of religious norms is permitted only as far as it promotes general, non-religious purposes, such as the reflection of Jewish culture in the public sphere or protecting the feelings of religious people.

The rejection of the doctrine of separation of Church and State is not based on the unique status of Judaism. The Jewish religion has no distinctive status in Israel. All religions in Israel enjoy a similar formal status. The basic concept is that the free exercise of religious practices is insufficient to enable a person to fulfill his or her religious aspirations. The fulfillment of religious freedom requires an active role by the government, in providing public finance to religious institutions; it may also require the state to supply several religious services, whenever the voluntary formation of the religious communities might fail to efficiently do so. Freedom of religion is basically considered as a part of the right to culture. As such, it not only prohibits the government but also imposes several duties, including granting exemptions from generally applicable norms, when these norms substan