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Judicial Crisis in Israel Caused by the Absence of Rules, Also Known as a Constitution

Both sides are victims of a flaw in the Israeli system, and until a Constitution is finally established, both sides will need to compromise.
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January 19, 2023
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One of the stunning aspects of the judicial crisis that is roiling Israeli society at the moment is that it鈥檚 not about policy. No one鈥檚 arguing about illegal outposts or reducing the cost of living or who should serve in the IDF.

For now, the fight is over power and fundamental questions like: Who has final say on the country鈥檚 laws and how they should be enforced? Does the Supreme Court have a duty to review laws or just interpret them? Does the government have the right to override the Court? And so on.

In a way, this judicial grenade was bound to explode sooner or later, for the simple reason that Israel doesn鈥檛 have a constitution. What it has are Basic Laws. The problem with Basic Laws, however, is that any government can change them at will with a simple majority. The other problem is that, in the absence of a constitution, Israel鈥檚 Supreme Court has absorbed more and more power over the years, triggering a backlash from the political branch that is now trying to get that power back.

The current crisis, then, can best be described as a pendulum of power that swung too far in one direction, and is now swinging too far in the other. Both extremes fail the country. In the former, the people are asked to trust unelected jurists with too much power. And in the latter, the people are asked to trust politicians with personal agendas with too much power.

The current crisis can best be described as a pendulum of power that swung too far in one direction, and is now swinging too far in the other. Both extremes fail the country.

A constitution is the one mechanism that can prevent this destructive conundrum.

鈥淐onstitutions are important not only because they ideally reflect a country鈥檚 core principles, serving both as a mission statement and as an operating manual, but also because they represent a governing philosophy that sits above the messiness of politics,鈥 Michael Koplow, Chief Policy Officer of Israeli Policy Forum, writes.

Indeed, what we鈥檙e seeing now in Israel, in an extreme and ugly form, is just that: The messiness of politics.

The new government kicked off the mess by announcing reforms that represent a radical shift in power from the courts to the politicians, calling it a 鈥渞ebalancing.鈥 When the opposition cried foul, they were met with cries that 鈥渢he voters have spoken.鈥 This further infuriated the opposition.

Both sides may claim that 鈥渄emocracy鈥 is on their side, but it鈥檚 not that simple. For one thing, should democracy allow any future government with a majority of 61 seats to remake the judicial rules to its liking?

As Koplow argues, 鈥淚n order for democracy to work, there has to be confidence on both sides of the political spectrum that鈥 losing one election or even a series of elections does not mean that things will inalterably change.鈥 The animating feature of constitutions, he writes, is that 鈥渢hey are supposed to reflect the unchanging nature of the system itself.鈥

This argument goes deeper than, 鈥淲e won the election so we can do what we want.鈥 As Koplow argues, 鈥渄emocratic politics is a necessary basis for democratic legitimacy but it is not the only one nor a sufficient one.鈥

At the very least, the opposition ought to put a concrete alternative on the table.

Meanwhile, the opposition has missed the opportunity to make a calm argument about the flaw in Israel鈥檚 system and the need for reasonable reforms. At the very least, the opposition ought to put a concrete alternative on the table.

The ideal person to bring the warring sides together in this endeavor is Israeli President Isaac Herzog. Just as a constitution aims to be above the fray of politics, so does the office of the president. The truth is, both sides are victims of a flaw in the Israeli system, and until a constitution is finally established, both sides will need to compromise.

The number one obstacle to compromise, as usual, will be human nature.

The ideal person to bring the warring sides together is Israeli President Isaac Herzog鈥he number one obstacle to compromise, as usual, will be human nature. Power is intoxicating.

Power is intoxicating. The new coalition, angry that the Courts have had too much power for too long, are salivating to grab that power back. They鈥檙e not in the mood to hear anything about compromise. The latest example of this fervor is Interior and Health Minister Aryeh Deri鈥檚 refusal to follow the High Court鈥檚 ruling that it is 鈥渦nreasonable in the extreme鈥 for Deri to hold a minister position, given the Shas leader鈥檚 multiple convictions.

Like a Shakespearian tragedy reaching its climax, the Deri drama has taken center stage. It has no easy resolution. For a nation that is used to living on the edge, the next few days will offer all they can handle.

My friend Yossi Klein Halevi once described the typical Israeli mindset as 鈥渘eurotic Zen.鈥 They may look calm and happy, but they never forget that a disaster can happen any minute.

I hope President Herzog will bring his best Zen energy when he brings the sides together. He might want to start as follows: 鈥淭his crisis is no one鈥檚 fault. We need a better system to establish the fundamental rules of the game. For now, however, we must work in good faith and in a spirit of compromise. This is the one question we must address for the good of the country and for the good of all voters: 鈥榃hat would reasonable legal reforms look like?鈥

鈥淭urkish coffee anyone?鈥

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