Judicial Crisis in Israel Caused by the Absence of Rules, Also Known as a Constitution

One of the stunning aspects of the judicial crisis that is roiling Israeli society at the moment is that it’s not about policy. No one’s arguing about illegal outposts or reducing the cost of living or who should serve in the IDF.

For now, the fight is over power and fundamental questions like: Who has final say on the country’s laws and how they should be enforced? Does the Supreme Court have a duty to review laws or just interpret them? Does the government have the right to override the Court? And so on.

In a way, this judicial grenade was bound to explode sooner or later, for the simple reason that Israel doesn’t have a constitution. What it has are Basic Laws. The problem with Basic Laws, however, is that any government can change them at will with a simple majority. The other problem is that, in the absence of a constitution, Israel’s Supreme Court has absorbed more and more power over the years, triggering a backlash from the political branch that is now trying to get that power back.

The current crisis, then, can best be described as a pendulum of power that swung too far in one direction, and is now swinging too far in the other. Both extremes fail the country. In the former, the people are asked to trust unelected jurists with too much power. And in the latter, the people are asked to trust politicians with personal agendas with too much power.

The current crisis can best be described as a pendulum of power that swung too far in one direction, and is now swinging too far in the other. Both extremes fail the country.

A constitution is the one mechanism that can prevent this destructive conundrum.

“Constitutions are important not only because they ideally reflect a country’s core principles, serving both as a mission statement and as an operating manual, but also because they represent a governing philosophy that sits above the messiness of politics,” Michael Koplow, Chief Policy Officer of Israeli Policy Forum, writes.

Indeed, what we’re seeing now in Israel, in an extreme and ugly form, is just that: The messiness of politics.

The new government kicked off the mess by announcing reforms that represent a radical shift in power from the courts to the politicians, calling it a “rebalancing.” When the opposition cried foul, they were met with cries that “the voters have spoken.” This further infuriated the opposition.

Both sides may claim that “democracy” is on their side, but it’s not that simple. For one thing, should democracy allow any future government with a majority of 61 seats to remake the judicial rules to its liking?

As Koplow argues, “In order for democracy to work, there has to be confidence on both sides of the political spectrum that… losing one election or even a series of elections does not mean that things will inalterably change.” The animating feature of constitutions, he writes, is that “they are supposed to reflect the unchanging nature of the system itself.”

This argument goes deeper than, “We won the election so we can do what we want.” As Koplow argues, “democratic politics is a necessary basis for democratic legitimacy but it is not the only one nor a sufficient one.”

At the very least, the opposition ought to put a concrete alternative on the table.

Meanwhile, the opposition has missed the opportunity to make a calm argument about the flaw in Israel’s system and the need for reasonable reforms. At the very least, the opposition ought to put a concrete alternative on the table.

The ideal person to bring the warring sides together in this endeavor is Israeli President Isaac Herzog. Just as a constitution aims to be above the fray of politics, so does the office of the president. The truth is, both sides are victims of a flaw in the Israeli system, and until a constitution is finally established, both sides will need to compromise.

The number one obstacle to compromise, as usual, will be human nature.

The ideal person to bring the warring sides together is Israeli President Isaac Herzog…The number one obstacle to compromise, as usual, will be human nature. Power is intoxicating.

Power is intoxicating. The new coalition, angry that the Courts have had too much power for too long, are salivating to grab that power back. They’re not in the mood to hear anything about compromise. The latest example of this fervor is Interior and Health Minister Aryeh Deri’s refusal to follow the High Court’s ruling that it is “unreasonable in the extreme” for Deri to hold a minister position, given the Shas leader’s multiple convictions.

Like a Shakespearian tragedy reaching its climax, the Deri drama has taken center stage. It has no easy resolution. For a nation that is used to living on the edge, the next few days will offer all they can handle.

My friend Yossi Klein Halevi once described the typical Israeli mindset as “neurotic Zen.” They may look calm and happy, but they never forget that a disaster can happen any minute.

I hope President Herzog will bring his best Zen energy when he brings the sides together. He might want to start as follows: “This crisis is no one’s fault. We need a better system to establish the fundamental rules of the game. For now, however, we must work in good faith and in a spirit of compromise. This is the one question we must address for the good of the country and for the good of all voters: ‘What would reasonable legal reforms look like?’

“Turkish coffee anyone?”