For all the sturm und drang of recent months, efforts by Israel’s coalition to reform our judicial system have so far created only a minor crisis that is nothing compared to the catastrophe we will face if we don’t create a constitution soon.
First, there’s no doubt that the nation’s inarguably undemocratic judicial system needed repair. But those defects pale when we analyze the inherently dysfunctional structure of Israel’s executive and legislative branches.
The legislative branch—our only popularly elected body—is also the weakest, since it is ruled with an iron hand by the executive branch. Members of the government’s ruling coalition are not beholden to voters as much as they owe fealty to the ruling party leader: the prime minister.
In short, Israel’s legislative and executive branches are not separated or independent and don’t check or balance each other. Rather they are melded into an organization whose highest value is obedience to its ruler.
Yet despite its power, the executive branch is often held hostage by disproportionate demands of small parties, who tend to be the linchpins of a coalition’s stability. If the coalition commands only a thin majority, even the smallest partner can bring it down.
Thus, we have a government whose power is rigid and lock-stepped by one or a very few powerful party leaders. Yet it is fragile, often subject to the rogue wishes of an obstinate minority party.
This highly centralized power structure, the members of which have little allegiance to a specific group of voters, combined with a hair-trigger vulnerability to collapse, adds up to a weak, wobbly governmental structure that can collapse at any moment.
We need a constitution.
No wonder that, in 1994, Supreme Court Chief Justice Aharon Barak was frustrated. Not only was the government wayward and unreliable, but his court also lacked formal, detailed legal guidelines to help it make judgments on all manner of issues regarding civil and humanitarian rights.
For this reason, Barak arrogated to his court the right to base decisions on judges’ own sense of reasonableness—a patently subjective, non-legal criterion.
Since there was also a legal vacuum as to what the court could or could not rule on, the court assumed for itself—with no legal limit except its own discretion—broad jurisdiction to rule on virtually any social or legislative matters, whether legislated or not.
As if this unbridled power were not undemocratic enough, the court also maintains the power to choose its own members, with no oversight by any elected representatives.
We need a constitution.
Our current combination of a strong-fragile, mutually dependent legislative-executive branch whose members are not directly elected, along with a supremely powerful Supreme Court, makes for a volatile, explosive combination.
Without a constitution, we will likely soon face an insoluble crisis, pitting the coalition government directly against the court with no clear legal path to resolution.
Here’s how things could explode: Israel’s Supreme Court decides to overrule the coalition’s new legislation that limits the Court’s right to make decisions based on “reasonableness” by calling the new law “unreasonable.” The coalition stands firm and orders all branches of government to ignore any Court decisions that violate the new law. Who will the IDF obey? Who will the unions obey? Who will our universities and financial machers obey?
If enough dissident Israelis take to the streets, disrupting transportation, medical care and other vital services, the resulting conflict could be a disaster for the Israeli economy and our society in general. It could lead to dissolution of the government and shred our social fabric.
We need a constitution urgently. It should be created by a constituent assembly, funded and chartered by the Knesset. This assembly will create a constitution that resolves the fundamental contradictions and holes in our system of governance. For those who claim they support Israeli democracy, there is no other choice. It needs to happen now.
Originally published by Israel Hayom.
