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Israel on the Brink: A Constitutional Crisis Looms

Israel finds itself on the verge of a constitutional crisis, a situation that is compounded by the fact that the country does not have a constitution.

Jewish Israelis have taken to the streets in protest against Prime Minister Benjamin Netanyahu’s plans to reform the country’s judiciary. While Netanyahu argues that the legislation is necessary to counter activist judges, his opponents claim that it enables a dictatorship.

Although the legislative process was temporarily halted in March due to widespread demonstrations, tensions flared up again on Tuesday as protesters voiced their opposition to a preliminary vote by the ruling right-wing coalition to curtail the court’s power of judicial review.

In the absence of a constitution, this conflict between branches of government over the role of the state is being labeled a “constitutional crisis” by experts and scholars. Israel’s struggle to define fundamental rights and governance is the same issue that prevented the country’s founders from drafting a constitution in the first place.

Constitutions serve to codify a government’s structure and legal principles, with their status ranging from almost unalterable to frequently rewritten, or even disregarded. Israel, alongside the United Kingdom and New Zealand, stands as an outlier by not having a constitution.

Instead, the United Kingdom and New Zealand rely on common law, a body of legal thought developed over centuries that de facto serves as their constitution. Israel, as a much younger country, has developed Basic Laws over the past 75 years that hold quasi-constitutional status.

The failure to establish a constitution can be traced back to the unresolved questions surrounding Israel’s core principles, such as the relationship between religion and the state, governing structures, and the rights of Jewish and Palestinian citizens. These issues remain less clearly defined than they would be under a single constitutional document.

When Israel declared independence in 1948, it pledged to draft a constitution and established a Constitutional Assembly in the following year. However, a lack of political will and disagreement over key questions prevented the constitution from materializing. Instead, the assembly transformed into Israel’s first parliament.

From the start, non-Jewish Arab and Palestinian citizens were excluded from the conversation. Israel’s aim was to become a state that prioritized Jewish citizens while excluding Palestinians, ensuring a demographic majority. Religious parties also opposed a constitution, fearing that it would limit the state’s intervention in religious matters.

Over time, Israel’s parliament, the Knesset, decided to pass Basic Laws as a blueprint for a future constitution. However, these laws have not fully established checks and balances between the government’s branches. The party that wins the most votes in elections forms a coalition government and its leader becomes prime minister.

Efforts to solidify a constitution have been sporadic throughout the decades. In the 1990s, Israel experienced a constitutional revolution with the passage of Basic Laws related to human rights. The Supreme Court also adopted a doctrine of judicial review, allowing it to strike down legislation that violated a Basic Law.

While human dignity has been broadly interpreted to encompass civil rights, there remains no entrenched principle of equality under the law. In 2018, the Supreme Court upheld a Basic Law known as the Nation-State law, which favors Jewish people and leaves Palestinian and Arab citizens as second-tier.

Netanyahu has consolidated his power by aligning himself with fringe extremists and settler activists, who view the Supreme Court as too liberal and secular. With right-wing lawmakers now in the majority, they seek to reshape the rules and argue against constitutionalism, claiming it undermines democracy.

Amidst the ongoing protests and constitutional debate, the rights of Palestinians and the issue of occupation have largely been overlooked. The focus has shifted towards preserving a two-tiered system of privilege at the expense of equal rights.

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