Why doesn't Israel have a Constitution?

by Chuck Chriss - President, JIA

Israel has no written constitution, unlike the United States and most other democracies. There was supposed to be one. The Proclamation of Independence of the State of Israel [ http://www.knesset.gov.il/docs/eng/megilat_eng.htm ] calls for the preparation of a constitution, but it was never done.

Israel doesn't have a constitution in a single document, but it does have one in the form of laws and court decisions that lay down the foundations of government and the rights of individual citizens. These are found in:

1. The Basic Laws of Israel;

2. Other laws passed from time to time;

3. Interpretations of Israel's Supreme Court.

A section of the Proclamation of Independence is the primary source of authority in the Israeli legal system, but the Proclamation is not a constitution. The Israeli Supreme Court has ruled that the Proclamation is not like the American Constitution. It is not a supreme law which may be used to invalidate laws and regulations that contradict it. However, when legislation is ambiguous, laws are to be interpreted in a way consistent with the principles expressed in the Proclamation. Within this concept, the Israeli Supreme Court has managed to develop fundamental constitutional principles that in other Western democracies are protected by constitutions.

The First Knesset and The Harari Proposal

The 1948 Proclamation of Independence was a consensus document written to garner support not only from the Zionist movement but also the Communists and even the ultra-Orthodox, non-Zionist parties. It's words incorporate the basic tensions of Israeli politics, especially the struggle between the religious and non-religious with their irreconcilable beliefs about the relationship between the political State of Israel and Jewish traditional law and customs.

The First Knesset devoted considerable time to the issue of a constitution, as demanded by the Proclamation. But the Knesset deadlocked. Religious parties took the position that the Torah is already the constitution for Israel. Socialists and Communists opposed any constitution that would undermine their Marxist plans for Israel.

The deadlock was broken by a vote on June 13, 1950, when the Knesset adopted a compromise idea, first proposed by Ben-Gurion, in a resolution known as "the Harari proposal", named after MK Yizhar Harari of the Progressive Party:

"The First Knesset assigns to the Constitution, Law and Justice Committee the preparation of a proposed constitution for the state. The constitution will be made up of chapters, each of which will constitute a separate basic law. The chapters will be brought to the Knesset, as the Committee completes its work, and all the chapters together will constitute the constitution of the state."

The stymied attempt to develop a constitution all at once was deferred. Basic Laws defining Israel's legislative, executive and judicial branches of government, human rights, the state's economy and lands, civil-military relations, and the status of Jerusalem, have been enacted in this way since the early 1950s. The Basic Laws, in combination with other laws passed from time to time and interpretations of Israel's Supreme Court, form the equivalent of a Constitution for Israel.

Religious Law

Israel has not adopted Jewish law as the law of the nation. The State of Israel is described in the Proclamation of Independence as both a Jewish State and a democracy with equal rights for all citizens. Nonetheless, the Jewish nature of Israel is developed and reinforced by acts of the Knesset and case law in the Israeli courts. The well-known Law of Return (1950) provides for the right of every Jew to immigrate to Israel and to acquire Israeli citizenship in under the Nationality Law (1952). And recognizing a more fundamental connection to Jewish law, the Foundation of Law (1980) says that when all else fails, Israeli courts "shall decide [a case] in the light of the principles of freedom, justice, equity and peace of Israel's heritage."

Political System

Elections in Israel are conducted based on the entire country as one election district. That is, Members of the Knesset (MKs) are elected from lists proposed by the parties on a national basis. Following the election, the parties get to assign seats in the Knesset based on their proportion of the national vote, drawing from the party list. There is no "Haifa MK" or "Be'er Sheva MK", only party membership. Thus, individual MKs owe allegiance to the party chiefs and not directly to the electorate.

This political system has resulted in some distortions in which Israeli law and government do not reflect the actual wishes of the voting population:

1. The Israeli government is notoriously unresponsive to its citizens. Since MKs are not directly elected by districts, there is little need for MKs to provide what are called "constituent services" in the US. Pressing social issues often receive little government attention and smaller movements are brushed off entirely. In other democracies, public outcry would bring politicians running in droves but those in power in Israel can safely ignore all but the most broadly based social concerns.

2. Most parties have clear positions on national security issues and little else. The religious parties, on the other hand, have clear positions on the relationship between Torah and the state, but little else. This puts the religious parties in a position to form a coalition with either of the major political wings, allowing them to bargain hard, especially when the major parties cannot form a majority without them. Disproportionate influence of these parties results in Israeli laws which conform to Jewish Orthodox principles but not to the preferences of most of the population. Examples: marriage and divorce, Sabbath day observance by business and public transportation, sale or import of non-Kosher foods. With no Constitution, courts cannot interfere with a political arrangement that is embedded in a statute, except to the extent that Basic Laws are violated or on other technical legal grounds.

3. The influence of Israel's minority Arab population is leveraged in the major parties. Since success in the national election hinges on the total vote, all parties have to seek the votes of the Arab block that consists of almost 20% of the population. Therefore, non-Jews have much more national influence than they would if their votes were concentrated in a few election districts. Thus even the right-wing has to formulate policy with one eye on the possible reaction from Arab voters. This would not be such a serious issue in most democratic countries, but in Israel many of its own Arab citizens are openly hostile to the continued existence of the country.

4. Israel's labor market is rigid as the Histadrut union resists change and chronic strikes plague Israel. Taxation and government regulation strangles business development. While Israel does well (very well) compared to other small countries, it could and should do much better as comparisons with Ireland will illuminate. Israel has to consider drastic changes including tax reduction, deregulation, privatization, infrastructure investment, reduction of state subsidies, reduction of welfare, and adoption of incentives for direct investment from outside Israel. Why don't these changes happen? Because the entrenched leaders of government, large businesses, giant labor unions, and their supporters control the existing system and will not benefit by changes that will benefit the country as a whole. That control is cemented by the non-Constitutional, block election system.

Proposed Constitution-based Reform

In the years since Israel's founding there have been many proposals for a written constitution and for constitution-based reforms in elections. In the current political season, the Yamin Israel party [ http://www.yamin.org ], recently merged with Herut [ http://www.herut.org.il ], has made such reforms the major plank of their platform. Professor Paul Eidelberg, President of The Yamin Israel Party and MK candidate on the Herut slate [ http://www.acpr.org.il/people/peidelb.html ], has written extensively on the constitutional issue and has concrete proposals. He also heads the Foundation for Constitutional Democracy in the Middle East [ http://www.foundation1.org/ ] which advocates such changes for Israel and the Arab countries, although they have little hope for such changes outside of Israel.

Yamin Israel proposes a Constitutional democracy to replace the present Israeli system -- which they call "anarchy punctuated by oligarchy". Their first reform will be to make Knesset members individually accountable to the voters in regional elections, which they point out is the practice of 75 democratic countries. They advocate a Presidential system to replace the discredited system of multi-party cabinet government. And they propose Presidential nomination and Knesset confirmation of Supreme Court Judges, to make them more sensitive to Jewish concerns and convictions.

These ideas are new only to Israel. As Eidelberg points out, in the 18th Century the American Federalist papers debated many of the issues of government -- e.g. Alexander Hamilton on the dangers of multi-party cabinets, writing in Federalist 70 -- and specifically warned against many elements of the present Israeli form.

Since the current system of government in Israel has shown only weakness in dealing with the existential threat of the Palestinian Arabs, not to mention numerous domestic concerns and failures, the January election may find much more support for reforms. Many Israelis and Diaspora Jews yearn for a strong Israel which reflects Jewish ideals and resoluteness in the face of implacable foes in a world that hardly cares. It will likely take many election cycles for these ideas to flourish and gain enough votes to become law, but the process is under way.

For the Love of Israel,
Chuck Chriss
President, JIA