Like Britain, Israel lacks a formal and written constitution. According to its 1948 Declaration of Independence, a Constitution “shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948.”
This lofty goal was put on hold during Israel’s War of Independence.
Then, in 1949, the fledgling Jewish State elected a 120-member Constituent Assembly, tasked with the clear mission of drafting a constitution.
It met for two days and decided to change its name to “The Knesset,” becoming Israel’s sole legislative and supreme state body, with parliamentary sovereignty. Rather than draft a constitution, this constituent assembly essentially took control of the entirety of the Israeli government, with exception of the judicial and local authorities. The Knesset represents the legislative branch, the executive branch, and the constituent assembly, all in one. Without a constitution to limit its powers, its authority would only be further magnified.
The young Jewish State also lacked a coherent legal system. It inherited the British common law, along with antiquated Ottoman laws, and further bound itself legally by joining international treaties, before proceeding to codify its own civil law.
Acting within this constitutional vacuum and legal disarray, the Israeli Supreme Court assumed a proactive role in government. Based upon the Declaration of Independence, the UN Partition Plan and Charter, borrowed laws, and thought influenced by the European Enlightenment, the Supreme Court essentially fabricated a legal basis for its preferred value system, developing this into an unwritten constitution through its legal decisions.
The development of this unwritten constitution can be observed in early landmark cases brought before the Supreme Court, such as the 1949 Bejarano case (freedom of occupation) and the 1953 Kol HaAm case (freedom of expression). The existence of such an unwritten constitution is also made evident by the manner in which the Knesset has been drafting a piecemeal constitution, broken up into parts called “Basic Laws.”
These Basic Laws, for all practical purposes, essentially put ink to already established norms and practices encompassed by the unwritten constitution. For example, the first Basic Law: The Knesset, was adopted in 1958, but the Knesset was already an established and legally upheld fact since 1949.
The 1992 Basic Law: Human Dignity and Liberty, has the stated purpose of establishing “in a Basic Law the values of the State of Israel as a Jewish and democratic state,” but those values clearly preceded the enactment of this Basic Law and were legally upheld. For example, the Jewish nature of the state is mentioned in the Declaration of Independence, along with the UN Partition Plan, and the democratic character of the state was already an established practice with the 1949 elections, as well as being enshrined in the 1958 Basic Law: The Knesset.
Fast forward to the present and we can see that the Supreme Court of Israel clearly speaks in those terms, upholding an unwritten constitution that most people do not even know exists. In 2018 the Knesset enacted the Basic Law: Israel as the Nation-State of the Jewish People, which, in relatively mild terms, enshrines the already established and seemingly obvious Jewish national values of the Jewish State.
That Basic Law was however challenged in court by multiple parties and, in a 200-page landmark ruling handed down by the Supreme Court on July 8, 2021, the court rejected those petitions, upholding the constitutional law’s constitutionality. This may sound like a relief, but it is in fact very problematic, as explained by Adv. Joel Golevensky in his recent editorial. What right does the court have to try a constitutional law? Chief Justice of the Supreme Court Esther Hayut, in paragraph 16 of her 10-1 majority ruling, stated: “In my view, at this stage of the Israeli constitutional enterprise, there is one, very narrow, limitation which applies to the Knesset in its capacity as a constituent authority, and that is that it cannot deny in a Basic Law the very existence of Israel as a Jewish and democratic state.”
What Chief Justice Hayut spelled out is an aspect of Israel’s unwritten constitution, a seemingly higher constitution by which the Supreme Court may review the Knesset’s lower constitution. The relief was that the Basic Law fit the mold this time, so the court made do with a 200-page warning, but what if it didn’t? What if the law defined Israel as being a bit more Jewish? Does the Knesset need to ask permission from the Supreme Court to be Jewish?
What this means, coming from the Chief Justice of the Supreme Court, is that Israel cannot enact a constitution which negates its interwoven existence as a Jewish and democratic state, in vague and limited terms, as understood only by the Supreme Court. In this yet untested ruling, the Supreme Court has essentially given itself the final say over what it means to be a Jewish State.
To be fair, there was initially a need for the court to be proactive and to offer checks and balances against the other combined branches of the government, but the direction it has taken remains a point of bitter contention.
Israel’s Supreme Court is not a democratic institution, in fact it is a rather insular and independent one. Its justices are selected by a committee largely dominated by the Supreme Court itself. Why does it then lead such a proactive drive for democracy at the expense of Israel’s Jewish identity? Why does it feel justified in severely constraining the freedom of Israel’s democratically elected officials from fulfilling the national aspirations of their constituents? It seems marred by foreign influences.
Jews came to Israel to build the Jewish State and to become an integral part of it, not to gain another Western democracy that will seek to assimilate us and strip us of our national identity. Is the Supreme Court really serving our interests when it seeks to prevent Israel from defining itself in a more Jewish way? Who and what is it defending in this Jewish State?
Its unwritten constitution has no relation to the historic definition of Israel. It is not a recognized national authority on the matter and is certainly not above God in deciding the Constitutional nature of Israel. Israel already has such a Constitution, one that its people accepted wholeheartedly and in unison before God.
That Constitution has been our Eternal and binding Covenant, one that the Jewish people have never been able to escape from or forget. That Constitution is our Written Torah, and the Supreme Court’s unwritten constitution cannot be above it. (I will describe what means in a future article.)
Yshai Amichai is a father of six and an author with a legal education, whose books advocate upholding the Torah as a national Constitution. He may be contacted at: [email protected]