Why Israel? The constitutional black hole that created the judicial crisis

The controversial judicial overhaul proposals tearing Israel apart wouldn’t happen in Australia or the US. NOAM GREENBERGER explains why.

The Israeli political divide provides competing narratives and justifications for the government’s proposed judicial reform.

Proponents argue that the activist Supreme Court has for decades overstepped its authority in order to embed a secular liberal-democratic ideology within Israeli society. According to this view, judicial reform is necessary to return the power of decision-making to the legislators.

The alternative view is that the Supreme Court is an important check on the legislative and executive power of the government. Judges are selected by a committee comprised of a majority of non-politicians (judges and legal professionals) empowered by the Knesset. The reform’s opponents argue that in the absence of a strong and independent Supreme Court, Israel may become a narrow parliamentary democracy risking its Western liberal values.

To understand why this conflict has come to a head, it is necessary to understand the fundamental structures of the state.

Israel does not have a constitution, despite a stipulation requiring one in the UN resolution that created the State of Israel and a stated intention to do so in the Declaration of Independence.

There are a variety of explanations for this failure: successive coalition governments consisting of parties with differing visions for the state; constant existential threats making the Knesset reluctant to limit its powers; and politicians who expect ongoing dominance and therefore see little reason to bind themselves to a constitution.

The failure to agree on a constitution has left the Supreme Court in a bind. On the one hand, the Declaration of Independence guarantees equal human rights and fundamental freedoms to everyone. On the other hand, the doctrine of separation of powers dictates that it is not for the Supreme Court to pre-empt the Knesset by incorporating rights and protections that have not been formally brought into law. What is the court to do when the law (or a government decision) conflicts with the values espoused in the Declaration of Independence?