Israel does not have a written constitution even though, according to the Declaration of Independence, a constituent assembly should have prepared a constitution by October 1, 1948. Prime Minister David Ben-Gurion believed the government had more urgent matters on its agenda. However, the delay in the preparation of a constitution resulted primarily from the clash between a secular constitution and halacha (the Jewish religious law).
When the UN General Assembly adopted the partition resolution on November 29, 1947, the expectation was that the Jewish state would have a constitution. Before the establishment of the state, the National Council Executive set up a committee headed by MK Zerah Warhaftig to deal with the issue of the constitution. Meanwhile, in December 1947, Leo Kohn, the secretary of the political department of the Jewish Agency, was asked to draft a constitution. Kohn was chosen because of his constitutional research, which included his Ph.D. dissertation on the constitution of Free Ireland.
In March 1948, the National Committee (Va’ad Leumi) and the Jewish Agency for Israel – the governing Zionist organizations in Palestine and abroad, respectively – founded the National Council. The Council consisted of 37 members representative of the various Jewish groups in Palestine – socialists and revisionists, Sephardic and Ashkenazi, religious nationalists and secularists, liberals, and communists. Chaim Weizmann, who would later be Israel’s first President, was elected to lead the Council. The Council chose from among its members an executive body of 13 members, headed by David Ben-Gurion, later Israel’s first Prime Minister.
On May 14, 1948, the last remaining British forces in Palestine left the land. The members of the National Council met in Tel Aviv and declared the establishment of the State of Israel. At this meeting, the Council became the Provisional State Council, the highest institution of the new state. The Declaration of Independence, which was approved and signed by the members of the Provisional State Council, asserted that within four months, a Constituent Assembly would be elected, which would write a constitution in which the permanent governing institutions would be determined:
The main arguments in favor of a constitution were: the fact that the founders of the state favored the preparation of a constitution as stated in the Declaration of Independence, the need for a document that would bind all the state institutions, including the legislature, and would serve as the basis for the rules by which the state functions; and the need to respect resolution 181. The resolution called for the preparation of a democratic constitution by a Constituent Assembly, which was to include instructions relating to the preservation of the fundamental rights of the state’s citizens; the fact that most states have constitutions; the educational and cultural value that is embodied in a constitution, to the light of which the younger generation can be educated and which serves as the state’s visiting card; the value of a constitution in advancing the “melting pot” process; and the value of a constitution as an expression of the revolution that took place in the life of the Jewish people.
The main arguments put forward by those opposed to the constitution, headed by Ben-Gurion and the religious parties, were: the idea of the constitution developed in previous centuries, against the background of social and economic struggles that no longer exist; despite and perhaps even because of the absence of a written constitution in Great Britain, the rule of law and democracy there are solid, and civil freedoms are upheld; the Declaration of Independence includes within it the basic principles of any progressive constitution, and the Transition Law of 1949, which was passed by the Constituent Assembly, constitutes a fulfillment of the state’s obligations towards the United Nations on this issue; only a minority of the Jewish people is in Israel, and the state does not have the right to adopt a constitution that will bind the millions that have not yet arrived; because of the nature and unique problems of the state, it is difficult to reach a consensus regarding the spiritual principles which are to shape the image of the people and the essence of its life, and the debate about the constitution could lead to a cultural war between the religious and secular communities; the State of Israel is in the midst of a continuous process of change and crystallization, and this does not go together with a rigid constitution.
The first act of the Constituent Assembly was to pass the “Transition Law,” by which it reconstituted itself as the “First Knesset.” The Assembly thereby became the Legislature of the State of Israel. A protracted debate ensued between those favoring immediate enactment of a constitution and those who believed either that there should be no constitution or, at the very least, that the time was not yet ripe. The Knesset adopted a compromise, transferring the powers of the Constituent Assembly to subsequent Knessets and introducing the idea of a constitution “by chapters” instead of one formal written document. The text of this resolution, known as the “Harari Resolution” after its sponsor, MK Yizhar Harari, read as follows:
The first Knesset was dissolved before its time without enacting a single chapter of the constitution. The Knessets that followed occasionally used their Constitutive powers to enact Basic Laws that established the foundations of the system of government and the rights of the individual. Eleven Basic Laws have been enacted, dealing with two main issues: the powers of the governing bodies and basic human rights. These are:
- The Knesset (1958)
- State Lands (1960)
- The President of the State (1964)
- The Government (1968)
- The State Economy (1975)
- Israel Defense Forces (1976)
- Jerusalem, Capital of Israel (1980)
- The Judicature (1984)
- The State Comptroller (1988)
- Freedom of Occupation (1992
- Human Dignity and Liberty (1992)
Some were inclined to view the Declaration of Independence as a constitution since it dealt with the foundations of the establishment of the state, its nature, part of its institutions, the principles of its operation, and the rights of its citizens. However, in a series of decisions beginning in 1995, the Supreme Court ruled that it does not have the validity of constitutional law and that it is not a supreme law, in light of which laws and regulations that contradict it are nullified. Furthermore, the Basic Laws had no greater status than ordinary laws, and thus new laws were held to supersede old ones. The only laws which could be used to strike down legislation were those parts of basic laws with “entrenchment clauses” establishing their supremacy as in Article 4 of the Basic Law: The Knesset, which stated:
When Article 4 was written, it was almost the only basis for the review of legislation.
This is no longer true. In 1992, the Knesset adopted two new Basic Laws concerning human rights (Freedom of Occupation and Human Dignity and Freedom). The Freedom of Occupation law explicitly included a provision preventing other laws from infringing on it, but a proposal to also entrench the more important Basic Law: Human Dignity and Liberty, failed by one vote. Perhaps more importantly, both laws had a limitation clause stating that,
A minimalist interpretation would simply have added the two new Basic Laws to the short list of entrenched laws. Chief Justice Aharon Barak, however, championed a more activist interpretation of the new laws, declaring in Bank Mizrahi v. The Minister of Finance (1995) that their enactment – and particularly the new Limitation Clause concept – signified the elevation of all Basic Laws to supremacy over ordinary legislation.
This historic decision – the equivalent of the United States’ famous Marbury v. Madison – put Basic laws on the top and established the practice of Judicial review of statutes. What this meant was that the Supreme Court declared the eleven basic laws drafted over some 45 years a constitution and granted itself the power to strike down new legislation that contradicted any basic law. With this “constitutional revolution,” the court created a constitution unbeknownst to the vast majority of Israelis and the world.
This revolution has had its positive and negative ramifications. Israel’s system of law and basic principles are now stabilized by a constitution, but the text is incomplete and unknown to the public, failing in the fails in the educational, civic, and political functions a constitution should and would fill if it grew out of an inclusive process of public deliberation. The Bill of Rights in the basic laws is unfinished, and the issue of Israel as the state of the Jewish people is almost ignored. Finally, the court’s interpretation and application of some of the Basic Laws have alienated Members of the Knesset (particularly the Orthodox) who originally supported the Basic Laws themselves in the plenum. Many members of the Constitution, Law, and Justice Committee share these criticisms, and the Constitution by Broad Consensus Project is aimed in part at remedying the situation.
A constitution serves functions and goals that are particularly important for Israel. It establishes the basic principles and laws of the state, its credo, values, and basic structure of government. In a democratic state, the constitution places limits on government in order to prevent it from abusing its powers. The constitution also aims to prevent a tyranny of the majority and, therefore, must protect both basic human rights and the collective rights of minority groups.
The constitution defines the structure of government and limits its powers. A written constitution defines the separation of powers between the branches of government. It also serves to remind the state institutions that their powers are limited and that their operation is subject to the rule of law. Without a written constitution, the division of powers becomes a political power struggle instead of a matter of sound principles of government. One prominent example is the tension that exists today between the Supreme Court and the Knesset, which is in large part a result of the lack of a constitution clearly delineating the respective powers of the Judiciary and the Legislature.
A constitution will have important symbolic and educational value. It will formally establish the dual nature of Israel as Jewish and democratic and emphasize the commitment of its citizens to both democratic and Jewish values. The constitutional process will have significant value even if the current project ultimately fails. Deliberating the basic commitments that Israeli citizens share as a community may contribute to national unity and help to reduce social rifts and tensions, as well as reduce feelings of hostility and alienation that exist between the various sectors of Israeli society. Israel is a divided and polarized society where a sense of unity and solidarity and the willingness to cooperate and compromise are low, while the potential for conflict and even violence is high. Under such circumstances, there is great value in a constitution that gives all groups a sense of belonging to the political community and a sense of security that their basic interests will be respected. A constitution by broad consensus has the potential to bridge gaps, be a source of political and democratic solidarity and unity, and constitute a strong foundation for the continued existence of the state. Finally, even if this project fails to produce a formal constitution, many sections are likely to be adopted as individual laws.
Israel’s constitution will protect the basic liberties and rights of all its citizens and will safeguard the collective rights of minority groups from the threat of a tyranny of the majority (that is, an attempt by the majority to violate the rights of individuals and minorities). Israeli society includes several potentially vulnerable minority groups, particularly Arab Israelis; it is critical to ensure that political participation is open to all and that no minorities are marginalized or excluded. A written constitution will entrench Israel’s fundamental values and commitments to human rights, defending them against short-term impulses to compromise them.
In May 2003, the Constitution, Law, and Justice Committee of the Knesset, chaired by Member of Knesset Michael Eitan, initiated the Constitution by Broad Consensus Project, which aims to write a constitution for the State of Israel. The Committee has been meeting weekly since then with the aim of consolidating a draft of a constitution that will enjoy wide support among Israelis and Jews worldwide. The proposed constitution will ultimately be brought to the Knesset and the people for consideration and ratification.
The Committee believes that since Israel is the democratic state of the Jewish people, it is appropriate to appeal to the worldwide Jewish community and invite their input on central constitutional issues, particularly regarding those questions that involve the relationship between Israel and the Jewish people.
Many Israelis believe that the judicial activism championed by Justice Barak went too far. When Benjamin Netanyahu was elected prime minister in 2022, his coalition pledged to reform the judiciary. The initial proposal would empower the Knesset to override Supreme Court decisions with a simple majority of 61 votes. Politicians would also be given a greater role in the appointment of Supreme Court judges, and ministers would have the authority to appoint their own legal advisers instead of using independent professionals.
This effort produced a backlash in Israel and abroad from those who believed the proposed reforms would weaken Israeli democracy by limiting the power of the judiciary, changing the way judges are selected, and giving a one-vote majority in the Knesset the authority to overrule Supreme Court decisions. Some critics accuse Netanyahu of promoting the reforms in an effort to have the criminal charges against him dropped.
Barak warned the reforms would essentially give all power to the prime minister, leave citizens with no defense against the removal of any and all of their rights, and would mark the beginning of the end of the modern State of Israel.
“The justice minister presented the first stage of the planned reform. The claim that this reform is the end of democracy is baseless,” said Netanyahu. “The truth is that the balance between the branches in the governmental system has been violated over the last two decades, and even more so in recent years....The attempt to restore the correct balance between the branches is not the destruction of democracy, but the strengthening of democracy,” the premier said. Opposition lawmakers had also been known to speak out against “judicial activism,” he added.
The schism in Israeli society suggests to some that the time has come to codify the law, but the deep divisions, which are not restricted to those between religious and secular Israelis, have prevented agreement on a constitution in the past and are likely to remain an impediment for the foreseeable future.
Sources: The Knesset.
A Constitution for Israel: The Design of the Leo Kohn Proposal, 1948, Israel Studies, Vol. 15, No. 1 (Spring 2010), pp. 1-24
Isabel Debre and Josef Federman, “Israel’s new government unveils plan to weaken Supreme Court,” AP, (January 4, 2023).
“Netanyahu blasts ‘baseless’ claim judicial overhaul would end Israeli democracy,” Times of Israel, (January 8, 2023).
Patrick Kingsley, “Netanyahu Surges Ahead With Judicial Overhaul, Prompting Fury in Israel,” New York Times, (January 12, 2023)