In a country with no constitution, it is difficult to define exactly what a “constitutional crisis” means. Beginning in 1958, a decade after its founding, the State of Israel enacted the first of a series of Basic Laws addressing numerous issues central to the country’s functioning and the framework of its body politic. All the same, a comprehensive constitution has never been adopted, nor does it seem that one will be anytime in the foreseeable future.
Regardless, the term “constitutional crisis,” in conjunction with “the death of democracy” and other such ominous exhortations, continues to enjoy high currency in Israel, in particular by those opposed to Benjamin Netanyahu and his combined 18 years of serving as Israel’s prime minister. Rarely does a day go by without some political pundit, leftist academician or retired Supreme Court justice publicly bemoaning despoliation of the Israeli nation’s very soul. Even Aharon Barak, a past president of the Israeli Supreme Court (i.e., chief justice), recently declared before an anti-government demonstration: “Israel is no longer a liberal democracy, but rather under the rule of one man.” It would not be unreasonable to propose, therefore, that the cry of “constitutional crisis” is no more than a pretext for unbridled political opposition.
Barak may as well have been speaking of himself, since no single individual has had such a dominating impact on Israel’s legal system—and by extension, on Israeli society as a whole—than he has. Under Barak’s direct tutelage, in 1992, the Knesset enacted Basic Law: Human Dignity and Liberty, and in short order, he used his formidable power to declare that Israel now indeed had adopted an actual constitution (see his landmark decision in CA 6821/93, United Mizrahi Bank v. Migdal Cooperative Village).
The manifest absurdity of such an assertion, however, was clearly demonstrated by the fact that this new “constitution” came into existence by virtue of a 2 a.m. vote by less than half of the members of Knesset in plenum (54 out of 120), with only 32 (barely a quarter!) voting to adopt Basic Law: Human Dignity and Liberty. The sad truth is that few, if any, of those guileless legislators had any idea, let alone intention, of adopting a constitution by means of such a seemingly innocuous, routine and unceremonious vote.
For a classic, albeit extreme instance of a genuine constitutional crisis, we’d be well-served to turn our attention to the secession in 1860-1861 by U.S. Southern states from the Union and the ensuing establishment of the Confederate States of America, which essentially triggered the American Civil War. Even then, it wasn’t until Texas v. White, 74 U.S. 700 (1868), that the U.S. Supreme Court finally rejected as patently unconstitutional the question of secession.
Protests against judicial reform
Whereas the lament of “constitutional crisis” has traditionally been a call to arms for the Israeli left, it now seems the right is slowly learning the rules of the game.
Take, for example, the Supreme Court’s interim order freezing the Israeli defense minister’s decision to shut down Israel’s Army Radio station (Galei Tzahal, or “Galatz”) on account of perceived faults in the decision-making process. The central accusation was that on the official advisory panel appointed to review the matter, some members were suspected of harboring political affiliations on the right.
Yet these same justices found no impropriety when their compatriot to the bench, Yitzchak Amit, refused to recuse himself from participating in sessions of the Judicial Appointments Committee centered around whether or not he himself should be appointed the next president of the Supreme Court! And when Justice Minister Yariv Levin refused to convene the committee in protest of this glaring malfeasance, Amit’s associates on the court simply usurped such ministerial privilege and anointed their colleague with the title of “president.”
Nor has Amit disappointed in his tireless efforts to stir up ever more constitutional controversies. In the eyes of the left, Knesset member Itamar Ben-Gvir is one of the most reviled politicians ever to be elected to office. The offense was exponentially multiplied upon his being appointed to the cabinet, and as the Israeli minister of national security (i.e., the police), at that. As a youth, Ben-Gvir had no lack of run-ins with the law, nor does he shy away from what many would consider provocations of a nationalist trope. But under the law, there is absolutely no prohibition against him serving as a cabinet minister.
Nevertheless, immediately upon his appointment in late 2022, a group of “public petitioners” applied to the Supreme Court, in its capacity as the High Court of Justice, to have the nomination annulled on the grounds of its “extreme unreasonableness.” The justices eventually rejected the petition, but not before Amit felt compelled to air his own reservations on the matter, writing: “Although Ben-Gvir’s appointment as minister of national security is not without difficulties and may even damage public trust to some extent, I did not find the appointment to be extremely unreasonable.”
Taking her cue from Amit, Attorney General Gali Baharav-Miara (whose official title is legal advisor to the government) set out to thwart the implementation of Ben-Gvir’s policies, wherever possible. Prior to the Hamas-led massacre in southern Israel on Oct. 7, 2023, Israeli streets were overrun with mass demonstrations by the virulent left, calling for civil rebellion, insubordination, refusal to serve in the military and worse—all as a panicked reaction to the government’s efforts to effect a much-needed judicial reform.
Ben-Gvir instructed the police to enforce a policy of no tolerance when it came to insurgency and lawless conduct. But this AG, an adamant opponent to the proposed judicial reform, found no fault in declaring before the cabinet that “there is no effective protest without disturbing the peace.” That is quite a volte-face from the summary arrests and relentless prosecutions imposed against the myriad demonstrators—from children on up—opposing former Israeli Prime Minister Ariel Sharon’s contemptuous fixation with making the Gaza Strip Judenrein.
Then, in 2024, another round of petitions was submitted to the High Court demanding that the prime minister fire Ben-Gvir from his post as national security minister. Unsurprisingly, this purported “legal advisor to the government” sided with the petitioners and implored the High Court to intervene in the matter. “A show-cause order is needed to compel the prime minister to explain why he has not removed National Security Minister MK Itamar Ben-Gvir from office,” exhorted Baharav-Miara.
The Supreme Court dutifully complied and issued such an order, thereby shifting the burden onto Netanyahu to justify why Ben-Gvir should not be dismissed from his ministerial position.
‘With their own hands’
For the government and its supporters, a red line had been crossed, and it was now their turn to decry an egregious “constitutional crisis,” which they did with a vengeance.
As Ben-Gvir’s attorney retorted, not only are the petitions in question “lacking any legal basis or authority,” issuing a judicial order to dismiss a serving minister would constitute “a dangerous and exceptional precedent, which does not exist in recognized democracies. This is a serious violation of representative democracy and voter sovereignty.” Ben-Gvir himself exclaimed, “You have no authority. There will be no coup!”
So, too, Levin expressed his unreserved disdain for the Supreme Court justices, in the most caustic of terms: “The pyromaniacs in the High Court have long been acting as if they are the Government, they are the Knesset, and now they are also replacing the people. Without even the slightest authority in the law, in complete contradiction to the most basic principles of any democracy, they are creating an unprecedented constitutional crisis with their own hands.”
Reports have since surfaced indicating the government’s intention to promote legislation, originally introduced in 2023, designed to deprive the High Court of the authority to intervene in appointments and dismissals of cabinet ministers. Coincidentally, a growing number of politicians on the right have openly called for the government and Knesset to disregard ultra vires High Court rulings.
Thus, it would seem that even in the absence of an official constitution, Israel is vehemently embroiled in a bitter, pernicious constitutional crisis all its own.
The American Civil War erupted less than 90 years after the Declaration of Independence, adopted by the Continental Congress in 1776. But it was followed by an unprecedented era of Reconstruction, out of which the United States grew to be an unrivaled superpower. As the State of Israel approaches its ninth decade, we can only pray that it, too, will achieve a similarly lofty stature, yet be spared the calamitous torment of such a deleterious and factional domestic upheaval.
