Malcolm Rivera
Israel is one of only five countries without a written constitution. When Israel was established in 1948, its Declaration of Independence mandated that a constitution would be written within five months. However, those tasked with drafting the constitution were unable to come to a consensus, and Israel has since enacted several Basic Laws dealing with government arrangements and human rights.
| Characteristics | Values |
|---|---|
| Has a written constitution | No |
| Has a series of Basic Laws | Yes |
| Basic Laws cover all constitutional issues | No |
| Deadline for completion of Basic Laws | No |
| Rule determining the precedence of Basic Laws over regular legislation | No |
| Basic Laws treated as having constitutional authority | Yes |
| Has a Declaration of Independence | Yes |
| Declaration of Independence mandated a written constitution | Yes |
| Has a Constituent Assembly | Yes |
| Constituent Assembly prepared a constitution | No |
| Has a Supreme Court | Yes |
| Supreme Court rulings can be declared 'unconstitutional' | Yes |
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What You'll Learn
Israel's Basic Laws
Israel does not have a formal written constitution. Instead, it has a series of Basic Laws that act as a de facto constitution. These Basic Laws are quasi-constitutional laws that were originally intended to serve as the foundation for a future constitution. The Basic Laws address government organisation and human rights, and they do not cover all constitutional issues.
The Israeli Declaration of Independence, which was issued on May 14, 1948, stated that a formal constitution would be formulated and adopted by October 1, 1948. However, the Constituent Assembly was unable to reach an agreement on the constitution, and Israel has since gone without a written constitution. The Assembly adopted the Transition Law in February 1949, becoming the "First Knesset."
In 1950, the First Knesset made the Harari Decision, opting to postpone drafting a full constitution right away. They decided to draft the document piecemeal, with each chapter known as a Basic Law. Once all the chapters were written, they would be compiled into a complete constitution. However, there is no deadline for merging the Basic Laws into a comprehensive constitution, and there is no clear rule determining the precedence of Basic Laws over regular legislation.
The Basic Laws have been a subject of debate in Israel, with critics arguing that the country's democratic nature would be better protected by a formal written constitution. Some have proposed codifying the Basic Laws into a formal constitution during calls for judicial reform. Opponents of this approach include Supreme Court Justice Mishael Cheshin. On the other hand, Supreme Court President Aharon Barak ruled that the Basic Laws should be considered the state's constitution during his tenure from 1995 to 2006. Barak's declaration of a "'constitutional revolution'" in Israel was based on the interpretation and implementation of the Basic Laws.
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The Declaration of Independence
Israel does not have a formal written constitution. Instead, it has a series of Basic Laws—quasi-constitutional laws that were originally intended to be the basis for the eventual constitution. The State of Israel has an uncodified constitution, with several Basic Laws dealing with government arrangements and human rights.
The Israeli Declaration of Independence, formally known as the Declaration of the Establishment of the State of Israel, was proclaimed on 14 May 1948, at the end of the civil war phase and the beginning of the international phase of the 1948 Palestine War. The declaration was made by David Ben-Gurion, the Executive Head of the World Zionist Organization and Chairman of the Jewish Agency for Palestine. It marked the establishment of a Jewish state in Palestine, or the Land of Israel in Jewish tradition, to be known as the State of Israel. This declaration came into effect on the termination of the British Mandate at midnight between the 14th and 15th of May, 1948.
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The Harari Decision
The State of Israel does not have a formal written constitution. Instead, it has a series of Basic Laws that deal with government arrangements and human rights. The Harari Decision (הַחְלָטַת הֲרָרִי) of 13 June 1950, adopted by the Israeli Constituent Assembly (the First Knesset), postponed the drafting of a full constitution. Instead, the Knesset's Constitution, Law, and Justice Committee were charged with drafting the document piecemeal. Each chapter would be a Basic Law, and once all were written, they would be compiled into a complete constitution.
The Basic Laws have been described as quasi-constitutional laws, and their status and the requirements for passing new ones have been among the subjects of proposed judicial reforms. Critics argue that Israel's democratic nature would be better protected by an actual written constitution. The lack of a complete and stable constitution and the ambiguity of the normative structure are defining characteristics of Israel's constitutional framework.
The Supreme Court has played a significant role in interpreting and enforcing the Basic Laws. In the Bank Mizrahi case, the Court established judicial review of ordinary Knesset legislation, curbing the Knesset's parliamentary supremacy. Supreme Court President Aharon Barak ruled that the Basic Laws should be considered the state's constitution during his tenure (1995-2006). Barak declared that the passage of the Basic Laws had initiated a "'constitutional revolution'" in Israel, with some laws requiring a 61 MK majority to amend. However, there is still no clear rule determining the precedence of Basic Laws over regular legislation, and many issues are left to interpretation by the judicial system.
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The role of the Supreme Court
The State of Israel does not have a formal written constitution. Instead, it has enacted several Basic Laws that deal with government arrangements and human rights. These Basic Laws are quasi-constitutional laws, some of which can only be changed by a supermajority vote in the Knesset.
The Supreme Court of Israel plays a crucial role in the country's legal system and has significant powers and responsibilities. The Court is situated in Jerusalem's Givat Ram governmental campus, about half a kilometre from the Knesset, Israel's legislature. It is composed of fifteen justices, with the most senior justice designated as President of the Court and the next senior justice as Deputy President. Justices are appointed by the President of Israel from a list submitted by the Judicial Selection Committee.
The Supreme Court has both original and appellate jurisdiction. As the High Court of Justice, it has original jurisdiction in cases challenging the legality of actions by public authorities, including government decisions, local authority decisions, and the actions of other bodies and persons performing public functions. The Court can also review actions by state authorities outside of Israel. In exercising its original jurisdiction, the Court considers matters where it is necessary to grant relief in the interests of justice and which are not within the jurisdiction of any other court or tribunal.
As an appellate court, the Supreme Court hears appeals from District Courts and, in rare cases, from Magistrates' Courts. The Court decides more than 10,000 cases annually. The Supreme Court's rulings are binding on all other courts in Israel, except itself, due to the principle of binding precedent.
Over the years, the Supreme Court has ruled on numerous sensitive issues, including those related to the Israeli-Palestinian conflict, the rights of Arab citizens, and discrimination between Jewish groups in Israel. The Court has established itself as a protector of human rights, intervening to secure freedom of speech and freedom of assembly, reduce military censorship, limit certain military methods, and promote equality among various sectors of the population.
In 1995, the Supreme Court held that it would consider the Basic Laws as Israel's constitution and that the justices would exercise judicial review power. This was a controversial decision, as it effectively upended the entire Israeli constitutional order by assuming judicial supervision of parliamentary legislation. This decision also marked a departure from the previous system of parliamentary sovereignty, curbing the Knesset's supremacy.
The Supreme Court of Israel is known for its impressive building, described by architecture critic Paul Goldberger as "Israel's finest public building." The building was designed by Israeli architects Ram Karmi and Ada Karmi-Melamede and opened in 1992 after a decade of planning and construction.
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The impact on democracy
Israel does not have a written constitution, but it does have a series of Basic Laws—quasi-constitutional laws that were originally intended to form the basis of a constitution. The absence of a written constitution has had several impacts on Israel's democracy.
Firstly, it has resulted in a lack of clarity and consensus on fundamental issues. Without a written constitution, there is no single document that clearly defines the country's ethos, values, and principles. This can make it challenging to resolve disputes and reach agreements, as different groups may interpret the Basic Laws differently.
Secondly, the lack of a written constitution has contributed to tensions between the Supreme Court and the Knesset. The Supreme Court has, on occasion, declared Knesset decisions 'unconstitutional', leading to questions about the juridical and moral basis for such rulings. The Basic Laws themselves have also been a source of tension, with some Members of the Knesset feeling alienated by the Court's interpretation and application of these laws.
Thirdly, the absence of a written constitution has made it difficult to establish clear limits on government powers. In a democratic state, a constitution typically serves as a check on government power, preventing abuse and protecting the rights of both individuals and minority groups. Without a written constitution, there is a risk of a "tyranny of the majority", where the government can enact policies that favour the majority at the expense of vulnerable groups.
Additionally, the lack of a written constitution has made it challenging to protect the rights of minority groups. A constitution typically outlines the collective rights of minority groups and ensures that their interests are represented and protected. Without a written constitution, there may be insufficient safeguards in place to prevent discrimination or protect the rights of those who may not be represented by the majority.
Finally, the absence of a written constitution has had an impact on national unity and social cohesion. Deliberating and drafting a constitution can be a valuable process for a country, as it involves discussing and defining the shared values and principles that unite its citizens. By engaging in this process, a country can strengthen its national identity and reduce social tensions. However, in the case of Israel, the lack of a written constitution has been cited as a contributing factor to the country's polarized society and ongoing internal clashes.
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Frequently asked questions
No, Israel does not have a written constitution.
There are several reasons why Israel does not have a written constitution. Firstly, the country was dealing with war, mass immigration, and austerity following its founding in 1948, leaving little time to draft a constitution. Secondly, there were ideological differences between those drafting the constitution, and they were unable to come to a consensus. Thirdly, Prime Minister David Ben-Gurion believed that a formal written constitution would allow the Israeli Supreme Court to overrule his socialist policies and entrench the existing proportional representation system. Finally, some Knesset members simply didn't believe a constitution was necessary, arguing that the United Kingdom, which Israel's system was built on, also functioned without a written constitution.
In place of a formal written constitution, Israel has enacted several Basic Laws that deal with government arrangements and human rights. These Basic Laws are quasi-constitutional laws that were originally intended to serve as the basis for a future constitution.
