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Many Israelis believe the judicial overhaul just passed by the Knesset is the beginning of the end of the country’s democracy. It’s the first of several steps Prime Minister Benjamin Netanyahu is pursuing to coalesce power under his control.
But Israel has been at risk of this kind of power grab since its founding. As a parliamentary system with no law or body beyond the reach of a simple legislative majority, the Israeli state has few safeguards to prevent it. At its core, Israel’s failure to adopt a constitution was the state’s original sin.
The new law strips the country’s Supreme Court of the power to overturn government action that the court finds “unreasonable.” A survey in February revealed that 66% of Israelis opposed the move, and protests against it have continued for 29 weeks so far.
Following the Knesset vote, public protests only grew. Doctors walked out of work, and Israel’s largest labor union is considering a nationwide general strike. Even Israel’s military reservists are threatening not to show up for duty, which would be a blow to the country’s national defense readiness.
The law’s supporters claim it’s necessary to stop unelected judges from overruling the will of the people as exercised by elected officials. That interpretation could sound democratic, particularly from an American perspective, considering our own unaccountable Supreme Court is undermining democracy these days.
But Israel’s system is different, as are the consequences. In a parliamentary system, the power of the prime minister and legislature are linked, so neither acts as a check on the other. This makes the judiciary essential to maintaining checks and balances. Netanyahu’s coalition, the most right-wing and religiously conservative in the country’s history, is aiming to take out that check.
Absent judicial oversight, the only tool that could restrain Israel’s ruling party would be a constitution, but Israel is one of only five countries that don’t have one. A constitution defines the scope of government powers and acts as the highest law of the land — a legal document that cannot be overturned by a simple majority. It is meant to make the guardrails of governance greater than the power any single person or group can secure. A constitution is the difference between the rule of law and the rule of people.
[ Editorial: Unrest sweeps across Israel, and Netanyahu has only himself to blame ]
It’s no accident that Israel doesn’t have one. From its beginning, Israel’s champions have had two very different visions of the state. The primary sticking point was always whether Israel would guarantee equality for all or for some.
Leaders such as Menachem Begin, founder of the Likud party and Israel’s prime minister from 1977 to 1983, claimed to support equal treatment of the Arab population but refused to bestow them rights equal to the state’s Jewish population. He believed that would be anathema to the concept of a Jewish state.
Chicago Tribune Opinion
Others, such as Shulamit Aloni, a former Israeli minister and member of the Knesset for nearly three decades, insisted the state needed a constitution that would guarantee equal rights for all. Aloni, one of Israel’s most prominent civil rights advocates, pressed for a constitution including an equality clause. Begin and others pushed back fiercely on the very idea. Reconciling those different visions proved impossible, so Israel simply didn’t. But repeated efforts to instill equality in any legal form have failed, suggesting the de facto winner of this debate is inequality.
This is an obvious slight to the Arab population in the country, but Arab residents aren’t the only ones who will ultimately pay the cost. Without a constitution enshrining equal rights for all, and with no other checks in place, it is far easier for a powerful minority to use the tools of the state to suppress the rights of other groups too. This is the reality in Israel today, as Netanyahu’s extremist coalition is making clear.
A constitution is no panacea, as America’s own long struggle to provide equal rights makes clear. And some countries, including the United Kingdom, have done fine without, thanks to a rigorous court system and other time-tested checks on power. But a constitution provides both a process and a product that can help build a more just and durable governmental structure and society. The process of creating and agreeing to a constitution is a difficult and time-consuming exercise. But it can force a reckoning with the hardest questions and spur public debate over the kind of society the public wants to be. It enhances transparency and accountability of every successive government to a legal framework bigger than they are.
If a constitution doesn’t answer those questions, someone else will, and they can do so without that level of rigor, debate and consensus. Today’s question is whether the judiciary can rein in unreasonable actions by the legislature, and Netanyahu’s government has answered: No.
Whatever tomorrow’s question is, the people of Israel don’t want Netanyahu’s coalition alone to have the power to answer it for them.
Elizabeth Shackelford is a senior fellow on U.S. foreign policy with the Chicago Council on Global Affairs. She was previously a U.S. diplomat and is the author of “The Dissent Channel: American Diplomacy in a Dishonest Age.”
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