Israel: Legal reforms or Constitutional chaos?

The irony lies in Israel's constitutional crisis, given that the nation lacks a formal constitution. Current Prime Minister Benjamin Netanyahu has a plan to reorganize the country’s judiciary. Generally speaking, a constitution is put in place with the purpose of outlining a government’s structural and legal principles. Nevertheless, some countries lack a  constitution. Unlike the UK that operates under Common Law practices, Israel relies on Basic Law with a quasi-constitutional structure. 

 Writing a constitution was always met with some form of opposition. Religious parties claimed that a written constitution would limit the state’s ability to intervene in religious matters. Compromise was finally reached in the 1950s. Israel’s Basic Laws would serve as a blueprint for a future constitution. In the early 1990s, Israel went through a constitutional revolution. Two Basic human rights laws ensured human dignity, liberty and freedom of work. Furthemore, the Supreme Court also adopted a doctrine of judicial review, which it said enabled it to strike down legislation in violation of a Basic Law. 

Subsequent court interpretations have taken a broad view of "human dignity," encompassing civil rights, yet the absence of a firmly entrenched principle of equality under the law remains a concern, according to Lerner. In a contrary move, the Supreme Court in 2018 upheld the Nation-State law, part of the Basic Laws, which asserted the exclusive nature of the "right of national self-determination" for the Jewish people in Israel. This stance relegated Palestinian and Arab citizens to a secondary status, reflecting the rightward shift in Israeli public sentiment and the growing influence of the national religious voting bloc, many of whom advocate for an ethno-nationalist religious state.

In order to consolidate his power, Netanyahu has integrated formerly marginalized extremists and settler activists into the mainstream. These factions have historically considered Israel's Supreme Court as excessively liberal, secular, elitist, and prejudiced against their interests (as well as those of Netanyahu, who is confronting corruption allegations). Presently, their representatives hold the majority and aspire to redefine regulations. This convergence of the religious and nationalist right has led to a concerted effort to resist the concept of constitutionalism in Israel, with proponents contending that constitutional principles erode democratic foundations.

Opposition to Netanyahu calls for a “ written constitution to outline the key freedoms” in order to protect those who currently fear losing their rights to live secular or queer or religiously nontraditional lives.  Since the start of the year, the streets have been packed with protestors opposing the legislative reforms and demanding Netanyahu’s resignation. 

As of July 2023, a “reasonableness” bill has passed, meaning that the Supreme Court has the authority to overturn government decisions on the grounds of reasonableness. This reform could severely undermine the country’s democratic structure and weaken the judicial system, the only tool which restricts the government’s power. But the Prime Minister is willing to go further. He wants to dismiss the Supreme Court’s right to review or throw out cases and to instead have a parliament majority overrule such decisions. Furthermore, the government could have a say over which judges are appointed, by increasing its representation on the committee which appoints them. This goes against the philosophy of having an independent and objective judiciary body. Lastly, he plants on discarding the requirement for ministers to obey legal advisers- which is a current law. 

No one knows how far this crisis will go. Although Netanyahu states he wishes to reach public agreement, his far right ministers in his cabinet are persistent on the planned political agenda.