What might a written constitution for Israel propose?

 Published in the Jerusalem Post weekend magazine, 11 August 2023

It has taken 75 years, and a wave of civil protest unparalleled in the history of the State of Israel, for the nation to recognize that from its very beginning it has been living with a flaw in its system of governance.  A slow-burning fuse was built into the very foundation of the state, and it has finally caused an explosion. 

Most people now realize that the clash of public opinion in Israel has arisen largely because, over time, the distinction between the legislative and the judicial roles within the system of governance has become increasingly blurred.  

Why did this occur?  Because Israel’s legislature from the foundation of the state was conceived as uni-cameral.  In other words, there was never provision for a second legislative chamber to be responsible for scrutinizing proposed legislation and suggesting amendments that would, if necessary, render new laws less "unreasonable".  Consequently the judiciary has over time been forced, in addition to its main functions, to assume the role that belongs to the second chamber in a bi-cameral legislature.  The judiciary’s primary role is to uphold the law, to interpret and amend it, to try those accused of crimes, and to defend the rights of individuals or organizations if they have been treated unlawfully. 

Israel is undoubtedly a vibrant democracy, but it lacks a written constitution.  Much comment during the past weeks of upheaval has centered on the idea that serious effort be devoted to producing one, so that the roles of the legislature and the judiciary can be clearly defined.  Britain, the main source of Israel’s common law, also lacks a written constitution. Its unwritten constitution, however, is based on over a thousand years of precedent.  Its second legislative chamber — the House of Lords – springs from the ancient feudal system headed by the nobility.  Today its main function in the UK's "Mother of Parliaments" is scrutinizing and amending proposed legislation emanating from the House of Commons.  The Senate, in the very different US system, performs something of the same function.

Israel has no such ancient precedent to draw on.  Though sophisticated judicial institutions feature in the Bible and in what we know of the ancient kingdoms of Judah and Israel, democratic institutions do not.

Suppose a constitutional committee were established charged with producing a written constitution for Israel.  It would, of course, incorporate most current institutions and much current practice, but its recommendations might well include changing Israel's legislature from uni- to bi-cameral.  Such a proposal would, of course, also have to suggest how a second legislative chamber could be established. 

Britain’s House of Lords in its present configuration is far from satisfactory.  Reforms over the years restricted, and finally abolished, the power of the Lords to overrule the will of the elected House of Commons.  Then non-hereditary peers created for their lifetime, known as life peers, were introduced. Finally in 1999 the government completed a deal with the Lords to remove most of the hereditary peers. The relevant  Act left only 92 hereditary peers in a House of Lords that numbered close to 800. These 92 were elected from among those who had a right to be members of the House of Lords as a result of their hereditary status. This arrangement was intended as a temporary holding measure until the second stage of reform was completed.

Nearly a quarter of a century has passed, and still 92 hereditary peers take their seat among over 700 appointed members.  In the  interim many a weird and wonderful proposal for reforming the House of Lords, including abolishing it altogether, has seen the light of day.

Britain’s problem stems from the fact that, even though vetted by a high-powered committee, the non-hereditary members of the House of Lords are appointed by prime ministers, either in office, or as a right when they leave office.   This is increasingly seen as an unacceptable way of determining who should serve in the nation’s legislature.

A much-touted alternative is to elect members to the second chamber, as is the case with the US Senate.  The downside to this idea is that such a  system would create a rival center of power to the House of Commons.  In any dispute each House could claim electoral legitimacy, and stalemate would result.  Proposed alternatives include devising some acceptable system of appointing suitable people to serve in the second chamber for a given period.  Regional councils charged with suggesting worthy candidates is one idea.

Perhaps this is the direction that Israel should go, if a bi-cameral legislature were agreed to be an acceptable way to proceed constitutionally.  Even so, a second legislative chamber is far from a cure-all.  Despite Britain’s bi-cameral legislature, powerful voices have been declaring for some time that the judiciary has been exceeding its proper function by venturing too far into the political arena.  Or, as Britain’s prestigious Prospect magazine put it a while ago: “The judiciary has made a slow march to the heart of politics.“

A notable example occurred in 2019, a few weeks before Brexit, when the Supreme Court ruled that Prime Minister Boris Johnson had acted unlawfully when he advised the Queen to suspend parliament, and that therefore the legislature had not been prorogued and parliament was still sitting.

Speaking from within a system where a second chamber is fulfilling its scrutinizing function, Lord Sumption, a Supreme Court judge from 2012 to 2018, believes that the British judiciary has been accruing unjustifiable powers. He holds that parliamentary scrutiny is generally perfectly adequate to protect the public interest in the area of policy‐making, and indeed is the only democratically legitimate way of doing so.

He believes that for those concerned with the proper functioning of democratic institutions, the judicial resolution of inherently political issues is difficult to defend because judges are not accountable to the public for their decisions.

In 2021 Neil Rogachevsky published a previously untranslated speech by David Ben Gurion, delivered in Israel’s first Knesset to the committee charged with drafting a constitution which never materialized.  Ben Gurion said: “I don’t think it’s possible to delegate authority to the court to decide whether the laws are kosher or not.”

These are indeed complex matters to consider, but consider them Israel must, if the nation is to resolve the issue that has split national opinion asunder.

Published in the Jerusalem Post weekend magazine, 11 August 2023:
https://www.jpost.com/opinion/article-754336