Israel’s constitutional moment – analysis

The harsh sounds you hear on the street, in the media, and in the Knesset—the chants, the apocalyptic warnings, the untethered rhetoric—is the sound of the can long kicked down the Israeli road finally slamming into a brick wall.

Boom. Crash. Bam.

The country’s Declaration of Independence, read out by David Ben-Gurion on May 14, 1948, included a line saying that a constitution “shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948.”

Except that it wasn’t.

October 1, 1948, came and went, but no constitution was adopted. The years passed, and despite various attempts, Israel still lacks a formal constitution.

Israel never adopted a constitution for various reasons—including the inability to agree on issues of religion and state and Ben-Gurion’s reluctance to have a formal document that would diminish his power.

So Israel did what Israel does so well when it can’t decide (consider the country’s policies in Judea and Samaria since 1967): it kicked the can down the road, hoping that eventually, something would happen to lead to a constitution. In the meantime, it would string together basic laws that someday could be consolidated into a constitution. 

Constitutions are important for several reasons: they anchor—as the US Constitution did with its Bill of Rights—individual rights into a seminal document, set down overall rules of the game, and help create a civic ethos accepted by all citizens.

Seventy-five years after its independence,  the need for a document that defines Israel’s identity and the rights and responsibilities of all its citizens has now become very evident. 

Without clear guidelines and a unifying document,  Israel will continue to limp from one crisis to the next over identity issues: is it a Jewish democratic state, a democratic Jewish state, a state for all its citizens, or a creative combination of all of the above? 

Israel will find it difficult to extricate itself from the seemingly endless spiral of political and social conflict without coming up with a substantive document that will clarify matters of religion and state as well as anchor into the document the scope and legitimacy of each branch of government.

The original hope that this would develop without a restrictive document, allowing for things to grow organically, is not working. The current political paralysis and social tensions are a clear sign that what had worked until now, when the country was younger and smaller, is not working. The can has hit the wall.

The real struggle begins now

In the past, the country was able to set the rules of the game while the game was in motion; now, these rules need to be fixed and clear to everyone. Otherwise, what was is what will be and what has been over the last five years does not bode well for the country’s future.

The divisive debate over judicial reform has made it even more evident that the rules of the game need to be set. The trauma the nation endured due to Monday’s passing of the reasonableness law is not over.

It is not as if the Knesset passed this law, and now everything quiets down and returns to normal—no more massive protests, no more pilots in active reserve saying they will not serve, no more doctor strikes.

Opposition and protest leaders said immediately after the Knesset vote that the real struggle begins now. 

National Unity party head Benny Gantz pledged that when the opposition parties return to power, they will rescind the new law. This means that this fight will continue ad infinitum because those on the Right will certainly not abandon the cause and will take to the street and sign petitions threatening not to show up for reserve duty if a new government comes into power trying to reset the clock. 

The coalition, meanwhile, is not just resting on Monday’s “laurels.” No sooner had the protestors been cleared from the streets than  United Torah Judaism tabled legislation called Basic Law: Torah Study, whose main objective is to anchor into law a basic inequality in this country: that ultra-Orthodox need not serve in the IDF.

The Likud quickly denied that it was going to push this forward, but whether it does or does not—Netanyahu said he would bring a softened version of the reasonableness clause to the Knesset, but that was not in the end what was done—is beside the point.

The whole issue of haredi conscription, as well as issues of marriage and conversion, are no longer issues that can just be postponed and dealt with ad hoc from time to time with a temporary solution. The country has just gotten too big. A constitutional-type assembly needs to convene, bringing together representatives of all segments of society to sit in a room and together set the country’s rules.

Some may argue that this can never happen, that if the country could not agree on a constitution when it was much smaller, less diverse, and the rifts perhaps not as significant as they are today, then there is no way that the country can agree now.

While it is true that such a task would be gargantuan, the current turmoil and mayhem demonstrate the danger that Israel faces if it does not come to an agreement that will prevent fundamental issues from popping up every few months that could lead to catastrophic consequences.

Why might efforts to reach a consensus on a constitution that will prevent further fragmentations succeed now when they have consistently failed in the past? Because of everything that has transpired here over the last few weeks. 

Don’t take my word for it; listen to what Hezbollah head Hassan Nasrallah said on Tuesday: “Israel was once thought of as a regional power that can’t be beaten, and regional countries accepted its threat as a fact that can’t be removed… its trust, awareness, and self-confidence have deteriorated into the crisis it is experiencing today. ‘This day, in particular [Monday], is the worst day in the history of the entity, as some of its people say. This is what puts it on the path to collapse, fragmentation, and disappearance, God willing.”

Prime Minister Benjamin Netanyahu said in words to the nation on Monday evening that following the passage of the reasonableness clause, his door is open to the opposition parties to agree on the other issues in the judicial overhaul plan — the judicial override clause, the method for selecting judges, the role of the legal advisers—within four months.

Assume for a minute that this is actually possible, that a consensus could be reached on these issues; while positive, it would solve some of the problems of checks and balances in this country, but leave other fundamental issues —such as the role of religion in the state and the core obligations of its citizens—to the whims of changing political fortunes. Something more significant is needed than a mere bandaid to cover a particular political blister.

Israel is undoubtedly in a crisis. But every crisis has within it the seeds of opportunity. The opportunity here could be for the country to realize that things are not working and that changes in the country’s organizational principles are needed. Drawing up such a document would be a long, hard road, but recent events demonstrate that starting this journey is essential because Israel will continue kicking this can of self-identity down the road at its own peril.

JPost