The Israeli Constitutional Process: Legislative Ambivalence and Judicial Resolute Drive

This situation permits intense discussions of the roles of the various powers under the constitution, and systems may have constitutional crises when one or another of these powers challenges the limits of the power of the other. But these discussions all take place within the constitutional framework. Indeed, one of its main functions is to make such debates more structured and 'safer' than they would have been had all the rules of the game been vulnerable to 'normal' political exigencies. In some systems, however, Israel included, the status and the basic contours of constitutional regime itself are quite controversial. I argue that this fact does weaken the legitimacy and stability of Israel's constitutional arrangements, and that it stems from the fact that the Israeli legislature has not taken – for a variety of reasons - a clear and firm position on constitutional issues, letting the court be the driving agent of the process.

All constitutions seek to enable government, structure its powers and limit them. To do this effectively, constitutions must enjoy a legitimacy which is broader and deeper than that enjoyed by any specific organ of government or any specific policy or piece of legislation. Their fundamental nature is supposed to provide elements of the 'civil religion' that binds all members of society and all major groups within it to the constitutional system. This basic fact has important implications to the roles various organs should play within constitutional regimes, and to the roles they should play in framing and adopting these regimes to begin with.

Part I provides some theoretical background and deals with the institutional implications of three different phases in constitutional regimes. All three phases - processes of constitution-making, amending constitutions and their application/interpretation - should be such that the functions of structuring and legitimating government in its broad sense are achieved in the best way. It is best that the central features of the constitutional framework be decided at the initial constitution-making stage, which will be comprehensive and provide a coherent system of checks and balances, and that will be negotiated and adopted with broad consensus. The natural candidates for performing these tasks are constituent assemblies or legislatures. Application and interpretation of the constitution are routine activities, in which all powers partake, with a special role is granted to an independent judiciary. Constitutional amendment should be more celebratory and broadly discussed change than regular legislation, but it does not have to have the features of constitution-making itself. The prime organ in amendments is the legislature itself, using a special mode of legislation, and possibly aided by built-in guarantees of popular involvement. Usually, the legitimacy of the constitution is enhanced if the institutional implications of these distinctions are adhered to.

Part II describes the constitutional history of Israel. In it I provide the legal highlights reflected in legislation and adjudication, but also sketch the political background and the forces working for and against the constitution at the various points. In particular, I show how in recent decades the courts, and especially the president of the Israeli Supreme Court of Israel, Professor Aharon Barak, have become central players in constitutional discussions and in creating constitutional realities. This growing involvement is connected to the rhetoric of the 'constitutional revolution' which states that the phase of constitution-making has been completed, and that it already was decided that Israel grants the SC as presently constituted the power to review primary legislation. This activity is all the more striking against the background of hesitant and ambivalent legislative moves, coupled with surprising legislative passivity in response to judicial constitution-making. While critics resist both the claim that there had been a revolution and the claim that the question of judicial review had been settled, the legislature does not rise to clarify the situation. This is the present reality of the constitutional process in Israel. An element of this reality is that the constitutional debate is in part over the question whether Israel already has a constitution. Consequently, the discussion whether it should have one, and what constitutional arrangements should be adopted, is not undertaken in a serious way.

Part III analyzes the Israeli history in light of the discussion of Part I. 'Nonconformity' with the institutional implications of the three phases of constitutionalism is not necessarily bad. Legitimacy for a constitutional regime can be gained without broad discussion and ratification. But this did not happen in Israel as of now. The debate over the 'constitutional revolution' and judicial review is still open and the issues are controversial. In terms of the phases of constitutionalism, this is a debate on whether Israel is now at the constitution-making phase or at the interpretation/amendment phase, and on the institutional implications of the answer to this question. The persistence of the debate does reflect serious issues of the legitimacy of the constitutional process itself. This debate is real and should not be ignored. Before we can seriously argue over the form and scope of judicial review of legislation, the legislature needs to settle the underlying ambiguities of the constitutional background against which this question is debated. It is not a good idea for Israel to continue to entrench a constitutional regime through judicial interpretations, without an explicit broad discussion of its desirability and features. Developments until now suggest that the product is not likely to be able to provide legitimacy and stability to the deeply divided Israeli society.

This discussion in turn provides the basis for a few normative and predictive statements concerning Israel's quest for a constitution in the concluding Part IV. Israel now has limited judicial review over legislation, which has developed mainly by the SC, despite the fact that its legislature has never made a deliberate decision on whether or not it should have a formal and entrenched constitution and how it will be enforced. If the legislature continues to shirk its legislative or even constituent responsibilities – the constitutional ambiguity and uncertainty will continue. The persisting political controversy over this issue, combined with the deep ideological divides that have made the adoption of the constitution so hard to begin with, now further hinders Israel's ability to in fact complete its constitutional process and adopt a full and entrenched constitution. The complicated piecemeal constitutional process till now makes the adoption of a coherent constitution even more difficult that it might have been without the 1992 'revolution'. Furthermore, the meandering process of constitution-making may well lead to sub-optimal constitutional arrangements, ones that cannot provide Israel with the stable, effective and accountable government that it so badly needs.

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