According to Elizabeth Shackelford, Israel’s legal dilemma stems from the country’s lack of a founding document.

According to Elizabeth Shackelford, Israel's legal dilemma stems from the country's lack of a founding document.

There is a widespread belief among Israelis that the recent makeover of the country’s court system, which was recently approved by the Knesset, marks the beginning of the end of democracy in Israel. Israel’s current prime minister, Benjamin Netanyahu, is

taking this action as the first of numerous actions he plans to do to consolidate power under his hands.


But ever since its inception, Israel has been exposed to the possibility of a power grab of this type. Because it is a parliamentary system, the Israeli state has few protections to prevent it. This is because there is no legislation or body that is beyond the reach of a simple legislative majority. The inability of Israel to have a written constitution might be considered the nation’s founding transgression.


Because of the new legislation, the Supreme Court of the nation will no longer have the authority to reverse actions taken by the government that the court deems to be “unreasonable.” According to a survey taken in the month of February,

Sixty-six percent of Israelis were against the plan, and demonstrations against it have been going on for the last 29 weeks.


After the vote in the Knesset, there was an increase in public demonstrations. The biggest labor union in Israel is contemplating calling for a national strike throughout the country after a walkout by medical professionals. Even members of Israel’s military reserves are threatening to skip out on their scheduled shifts, which would be disastrous for the nation’s ability to mount an effective defense.


The argument put out by proponents of the legislation is that it must be enacted in order to prevent unelected judges from subverting the will of the people as expressed by elected authorities. This view has the potential to seem democratic, especially from the perspective of Americans, given the fact that the unaccountable Supreme Court in the United States is now eroding democracy.


However, the system that is in place in Israel produces quite different results. Because the power of the legislature and the prime minister are intertwined under a parliamentary system, neither body can serve as a check or balance on the authority of the other. Because of this, the judiciary is very necessary in order to keep checks and balances in place. This cheque is one that is going to be cashed by Netanyahu’s coalition, which is the most right-wing and religiously conservative in the history of the nation.


The only mechanism that might put limits on Israel’s governing party in the absence of judicial monitoring would be a constitution; however, Israel is one of only five nations in the world that does not have a constitution. A constitution is a legal document that cannot be changed by the vote of a simple majority. It serves as the highest law of the nation and specifies the extent of the powers that are held by the government. Its purpose is to ensure that the boundaries of government are more expansive than the power that any one individual or group can amass for themselves. The distinction between the rule of law and the rule of the people is a document called a constitution.


[Editorial: Protests are spreading across Israel, and Netanyahu is the only one who can be held accountable]


It is not by chance that Israel does not own one of them. Since the state of Israel’s inception, its proponents have had two very distinct perspectives about its future. The key issue that needed to be resolved was always whether Israel would guarantee equality for some or all of its citizens.


Menachem Begin, the founder of the Likud party and Israel’s prime minister from 1977 to 1983, professed to favor equitable treatment of the state’s Arab majority but refused to provide them privileges comparable to those enjoyed by the Jewish population of the state. He was of the opinion that such a proposition was incompatible with the idea of a Jewish state.


Others, such as Shulamit Aloni, a former Israeli minister who served as a member of the Knesset for over three decades, believed that the state needed a constitution that would ensure equal rights for all its citizens. One of the most renowned champions for civil rights in Israel, Aloni, pushed hard for an equality article to be included in the Israeli constitution. Begin, and a few others fought vehemently against the concept as a whole. It turned out to be impossible to reconcile such distinct ideas, so Israel just didn’t bother trying. However, repeated attempts to establish equality in any legal form have been unsuccessful, demonstrating that inequality is, in reality, the victor of this discussion.


This is obviously an insult to the Arab citizens of the nation, but they are not the only ones who will have to bear the consequences in the end. It is far simpler for a dominant minority to use the means of the state to repress the rights of other groups if there is not a constitution that enshrines equal rights for everyone and if there are no other checks and balances in place either. As Netanyahu’s hardline alliance is making plain, this is the reality that exists in Israel in the present day.


The lengthy fight for equal rights in the United States demonstrates that a constitution is not a silver bullet on its own. And other nations, such as the United Kingdom, have managed just well without one, owing to a robust judicial system and other mechanisms that have stood the test of time as checks on authority. However, a constitution offers both a method and a result that may assist in the development of a more fair and long-lasting political system as well as a community. The process of drafting a constitution and reaching a consensus on its provisions is a challenging and time-consuming endeavor. However, it has the potential to compel a confrontation with the most difficult problems and spark a public discussion about the sort of society that people want to live in. It makes every succeeding government more transparent and accountable to a legal framework that is larger than they are.


Someone else will address such problems if a constitution does not, and they will be able to do it without the same amount of scrutiny, discussion, and agreement as was required here. The issue of the day is whether or not the judiciary is competent to rein in outrageous measures taken by the legislative, and the answer given by Netanyahu’s cabinet is “no.”


Whatever the issue is in the morning, the Israeli people do not want Netanyahu’s coalition to have the exclusive authority to decide how to respond to it on their behalf.


Elizabeth Shackelford is a senior fellow at the Chicago Committee on Global Affairs, where she studies American foreign policy. After several years as an American ambassador, she wrote “The Minority Channel: American Politics in a Dishonest Age.”




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