Rosner’s Domain | Basic Truth on Basic Laws

Sometimes there is nothing like going back to Israel’s founder, David Ben-Gurion. On Tuesday, Israel’s High Court convened to hear the case for and against striking down the so-called “reasonableness law,” that would curb the top court’s power to exercise judicial review over government decisions. As they were listening to the many hours of jargon-laden discussion, I was rereading an important 1950 Ben Gurion speech on the urgent question: “Constitution or laws.”

“This is a fierce debate about the essence of the state,” Ben Gurion said. Thus, we should not let the legal scholars determine its outcome. “It is not easy for a layman like me to take part in [this debate]. However, what is being discussed is a state matter and… every citizen must decide on it.” 

It would have been good had some of the participants in the court hearing spent a few minutes reading that speech. Ben Gurion opposed the position of those thinking that it was impossible for Israel to thrive without a constitution. He also opposed those thinking it was impossible for Israel to thrive with a constitution. A constitution, he said,  is “generally a new political device, which is not yet two hundred years old …  we need to examine whether our country needs this innovation.” Today, most Israelis believe that giving up on having a firm constitution was an error. But that’s Monday-morning quarterbacking. It is a fact that to this day no majority has been found and no formula for a constitution had been presented that can get a majority in the Knesset. The country nevertheless exists and prospers (albeit in a crisis).

Instead of a constitution came “Basic Laws,” whose role is to serve as an evolving constitution. But we have a problem with these laws. Thirty years ago, the court elevated their status and started using them as if they were constitutional. The politicians adjusted to the new interpretation in a typically manipulative way. And it is easy to manipulate Basic Laws. The mechanism for passing a Basic Law is identical to the one for passing a regular law. So the Knesset can call any law a Basic Law, and then argue that its constitutionality immunes it from judicial review. 

Manipulation of Basic Laws is not a disease of just one political camp. Two years ago, centrist Benny Gantz voted for a change in a Basic Law to assume the absurd role of an “alternate PM”. It was a clear example of a rash constitutional change, whose purpose is political, and yet it was implemented and approved by the court. Judge David Mintz, who ruled in this case, was consistent in his critique of the situation: “You can’t have it both ways,” he wrote. Since the court elevated the Basic Laws to a constitutional stature, it cannot strike them down as if they were just regular laws.

And yet, on Tuesday, lawyers and politicians — members of the two most manipulative professions — asked the court to consider whether it can strike down a Basic Law. That is, to consider if it’s necessary to add another layer of interpretation to a house of cards that already rests on shaky foundations. Of course, there is also another way– to simplify things rather than further complicate them. But this must begin with an acknowledgement of what is already self-evident– that the whole construct of Basic Laws does not work. 

One solution is to recognize that if the Knesset can call any law a “Basic Law,” and the court can invalidate any law including a “Basic Law,” then a “Basic Law” is nothing more than, well, a law. In that case, one can give up the extravagant title and decide that Israel has no Basic Laws, only laws. 

The second option is to strengthen the Basic Laws in a way that makes them more rigid and robust. This would prevent the Knesset from manipulating them and would also prevent the court from invalidating them. 

Until Israel does one of these two things, all we’re doing — laymen and legal experts — is much ado about nothing. The Basic Laws are talked about as if they are something  … but they are nothing but a fancy name. Sometimes the court clings to Basic Laws to apply judicial review. Sometimes the Knesset clings to the Basic Laws to try to escape judicial review.

This structure somehow managed to survive, largely because of a general sentiment of goodwill. But in today’s Israel, good will is all but gone, and with it the usefulness of Basic Laws.

It is fair to suspect that in the Court hearing no one was converted to a new position on the right balance between the court’s and the Knesset’s power. And it’s not because one side is wise and the other stupid, or because one side is evil and the other is righteous, or because one side is overbearing and the other rebellious. It’s because our Basic Laws were carelessly drafted and over-interpreted. This structure somehow managed to survive, largely because of a general sentiment of goodwill. But in today’s Israel good will is all but gone, and with it the usefulness of Basic Laws.

Something I wrote in Hebrew

PM Netanyahu elicited outrage in ultra-religious circles by trying to dissuade Hassidic Israelis from traveling to Ukraine for Rosh Hashanah. He said that “God has not always protected us …  on European soil.” Here’s what I wrote in this incident:

Netanyahu said what’s obvious to almost all Israelis: you shouldn’t rely on miracles because they won’t always come, and you shouldn’t trust God’s intervention, because He won’t always intervene … [Haredi] MK Eichler said what’s obvious to Haredi Israelis: “God is always there, and always protects us. And no — this is not a historical debate … Those who are willing to accept the possibility of the absence of God, and examine the historical development with a human eyes, see one thing, and those who believe that everything that happens in the world is the work of God, see another.”

A week’s numbers

Thirty years later, nearly 70% of the Israeli Jewish public believes that the decision to sign the Oslo Accords with the Palestinians was not a good one.

A reader’s response:

Erwin Dobby asks: “Why don’t we hear any more about the Western Wall women issue?” Answer: Because other things became much more urgent.

Shmuel Rosner is senior political editor. For more analysis of Israeli and international politics, visit Rosner’s Domain at jewishjournal.com/rosnersdomain.