Israel requires a thin constitution - opinion

A FULL PANEL of 15 justices sits for a High Court hearing on the legislation regarding the reasonableness standard, in September.

Israel’s judicial reform sought to unleash an extreme force against the judiciary and deprive it of its authority to serve as a check on the other branches of government.

In the end, only one of the clauses of the original revolutionary plan was enacted: Amendment No. 3 to Basic Law: The Judiciary, which stripped the High Court of Justice of its ability to apply the “reasonableness standard” to decisions made by the government, the prime minister, or any other minister, and to rule accordingly.

But Amendment No. 3 triggered Newton’s Third Law of Motion, which states that when one body exerts force on another body, the latter will exert an equal and opposite force on the former.

And so, on January 1, the High Court of Justice exerted a powerful counterforce against the Knesset: it nullified, for the first time in our history, a clause in a Basic Law, thereby restoring the reasonableness standard to the arsenal of judicial powers.

The effects of attempted judicial overhaul

The interim balance sheet: the attempted judicial overhaul that roiled Israeli life last year and brought us to the brink of civil war has left no trace in Israeli law. However, it has left a deep mark on the Israeli body politic, which has become more scarred, bruised, and fragile than ever. Israel is a family in distress. For years, a bitter quarrel between Mother Knesset and Father Court has been gathering steam, poisoning the air in the national home and chipping away at its foundation.

In July 2023, mother won; in January 2024, it was father. Domestic harmony does not appear to be on the horizon. On the contrary, the rift between the sides has grown wider. There is real concern that after – with God’s help – “together we will win the war,” Israel’s internal conflict will reawaken with a vengeance.

Thousands wave the Israeli flag as they protest against the judicial overhaul at the Knesset in Jerusalem. February 20, 2023. (credit: YONATAN SINDEL/FLASH90)

Thousands wave the Israeli flag as they protest against the judicial overhaul at the Knesset in Jerusalem. February 20, 2023. (credit: YONATAN SINDEL/FLASH90)

The High Court ruling on the reasonableness standard is 738 pages long. Every one of the 15 judges, the full bench, addressed the central issues, and on some, new furrows were plowed into Israeli law. As expected, the judges were divided on the main issues.

A one-vote majority ruled for the first time that an amendment to a Basic Law must be repealed, and a significant majority established for the first time that the High Court has the authority to nullify Knesset legislation, even when passed in its capacity as a “constituent authority” and even when such legislation constitutes a “Basic Law.”

ON ONE central question there was no dispute. All the judges concurred that this law was unworthy of entering the gates of Israeli law. Although Justice Noam Solberg noted that, had he been a member of the Knesset, he would have voted against the law, some legislators argued, in vain, that the law they had drafted adopted the 2019 “Solberg Outline” for limiting the reasonableness standard.

For a long time, we both worked hard, literally investing countless days and nights, to ensure the Knesset would not advance this law in its sweeping and extreme form. When that endeavor was unsuccessful, and the law passed intact, we partnered in the effort to have it struck down as soon as possible and replaced by a more balanced consensus arrangement.

These efforts continued right up until the eve of October 7. There was no real dispute about the substance; both sides agreed that the reasonableness standard should be reinstated in a more limited form, without throwing the baby out with the bathwater – which, in the end, is exactly what happened.

And what now? The public, unsurprisingly, is divided over the court’s decision. Some rejoice that “the court saved Israeli democracy and preserved the fortress of the rule of law.” Others lament that “the court robbed democracy from the hands of the sovereign, from the representatives of the people, and shattered trust in the rule of law.”

The relief many felt as a result of the ruling is understandable. However, it would be a colossal mistake to declare “victory” and continue our national life as if everything has fallen elegantly into place. The decision put an end – and rightly so – to the aggressive and one-sided amendment, but this does not resolve the fundamental dispute dividing Israeli society, and even the court itself.

The use of the “doomsday weapon” may exact a steep price from the court. It escalates the struggle between the branches of government, and even those who believe it was justified under the circumstances must consider that the ruling may foment even greater anger among certain sectors. It will likely amplify the public outcry against the legitimacy of the decision and the institution that handed it down.

Israel is still on a dangerous and slippery slope toward war between the branches of government. The great task before us, as a society, is to chart a course that will calm this worsening standoff.

The root of the problem lies in the fact that in Israel, contrary to what is accepted in most constitutional democracies, the rules of the game regulating how the branches of government operate and interact can be changed by a simple Knesset majority. This fundamental problem enabled the coalition to attempt a constitutional coup d’état with minimal support, and then led a majority of the High Court justices to discharge the “doomsday weapon.”

WE BELIEVE that now, more than ever, the rules of the game must be anchored in a constitutional document that cannot be changed without broad agreement. In an ideal world, Israel would adopt a comprehensive constitution that regulates not only the rules of the game for how the branches of government function, but also addresses the other big questions governed by constitutions – the core principles of the state and a bill of human rights. This is what we’d like to see.

However, given the heterogeneity of Israeli society and the deep disagreement over the vision of the state, we must regrettably acknowledge that achieving broad public consensus on these critical issues appears to be an unsurmountable challenge, at least in the foreseeable future. Nevertheless, we believe that a broad public consensus can be reached on the rules of the game of Israeli governance.

A modest constitution of this nature – one that deals “merely” with the design of state institutions and the relations between them – is known as a “thin constitution.” It would include, among other things, a Basic Law that governs the legislative process.

This part of the thin constitution would clearly state that a Basic Law can only be enacted through a special procedure that differs from that required for a regular law, by a significant Knesset majority, and only if it regulates an issue suitable for a constitutional text. If such a “thin constitution” is established, we anticipate and hope that the High Court will have little need to exercise j

udicial review of Basic Laws. There would be no need – and no legitimacy – for that.

We believe that Israel is facing a real opportunity to achieve a broad national consensus for the establishment of a thin constitution. First, a thin constitution does not require anyone to abandon their principles, ensuring that no community feels that the values it cherishes most are under threat. Second, the relevant political actors now understand that aggressive moves by either side are likely to fail.

They are standing behind a “veil of ignorance” – not knowing if and when they will be in the coalition or the opposition, and therefore, have an interest in establishing rules of the game that ensure Israel’s decision-making process is fair and efficient, not a “winner takes all” proposition.

Israel requires a thin constitution. It will allow an end to the situation where the discourse of power prevails. It would enable a balanced and respectful dialogue between branches of government whose powers are clearly defined, a safe haven for Israeli democracy.

Yedidia Stern is president of the Jewish People Policy Institute (JPPI) and a professor of law (emeritus) at Bar-Ilan University. Attorney Raz Nizri is a former senior deputy attorney-general, and currently heads the Department of Public Law, Regulation and Crisis Management at M. Firon & Co. Advocates.