But while the constitutional structure changed little over that time, the country itself underwent a remarkable transformation. Large waves of immigration changed the demographic structure of Jewish society in Israel. Israelis whose parents had immigrated from Muslim lands, now constituting more than half the Jewish population, started challenging the hegemony of the ruling elites, who were largely European in origin and Western in outlook. In 1967, Israel won a war and gained control over all of Mandatory Palestine—with the result that the debate over Israel’s borders was suddenly reopened, creating a deep and bitter division between those favoring a two-state solution and those wanting to integrate the whole territory under Israeli sovereignty. In 1977, Labor lost power for the first time, opening up a period of genuine competition over the reins of government. In the 1980s and 1990s, Orthodox parties grew in influence, and began looking beyond the mere protection of their way of life, to playing a major role in shaping Israel’s public life and even its foreign policy. Arab citizens also became more confident and better organized, and their elites became quite vocal in challenging the Jewish nature of the state.
Thus, over the course of several decades, the divisions in Israel deepened appreciably. Political arrangements that had in the past been up to the task of containing them now began to show signs of failure. Against this background, the past two decades have witnessed a resurgence of demand for a written constitution, in the hope that such a document could help Israel create a shared political framework, lend that framework stability and effectiveness, and thereby stop the erosion of crucial public values such as the rule of law and improve the protection of human rights.
However, the process envisioned in the Harari decision did not come to fruition. By the mid-1980s, all the remaining governmental arrangements had been formulated in “ordinary” basic laws that lacked any special protection, such as Basic Law: The President of the State (1964), Basic Law: The Government (1968), and Basic Law: The Judiciary (1984). All these laws enshrined the existing arrangements at the time of their adoption, and therefore did not stir any serious controversy, since no parties saw their interests as particularly threatened by the laws’ passage. At the same time, however, it was clear that the process was being led by those who saw the basic laws as contributing to an eventual constitution which would be the supreme law of the land.
Two fundamental disputes prevented the completion of the project: The question of a bill of rights, and the question of judicial review of laws passed by the Knesset. Repeated efforts to enact legislation that would deal with these issues were unsuccessful. In 1992, advocates of a constitution in the Knesset decided to split the bill of rights into several smaller laws, with the aim of winning Knesset approval at least for those that enjoyed broad public support. The two basic laws that were enacted that year, Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Freedom, did not explicitly mention judicial review, but imparted to the rights enumerated in them a measure of superiority over ordinary laws. In addition, Basic Law: Freedom of Occupation was entrenched, requiring a majority of 61 members of Knesset for its amendment. Moreover, the law stated that after a two-year transition period, the principles enshrined in it would be applied to pre-existing laws—which appeared to many to mean that such laws could be overturned if found in contradiction to the new basic laws. Basic Law: Human Dignity and Freedom was not entrenched, however, and could be amended or repealed by a simple majority in parliament; moreover, it stipulated that it would not apply to laws already on the books. In addition, both laws contained a limiting clause to the effect that the general rights subsumed under the basic law could be limited, under law, if such action “befits the values of the State of Israel, is designed for a proper purpose, and to an extent no greater than required.”31
The impact of the 1992 basic laws was far-reaching and complex. On the one hand, the laws seemed to allow the court a far broader say in Knesset legislation, a fact that greatly accelerated the constitutional process. Justice Aharon Barak,32 later President of the Supreme Court, went so far as to declare that a “constitutional revolution” had taken place, and that the new laws ushered in a new era, in which Israel now had an actual, functioning constitution.33 In 1995, the Supreme Court issued a path-breaking decision in the case of United Mizrahi Bank v. Migdal Cooperative Village, in which a panel of nine justices unanimously ruled that the 1992 basic laws empowered the courts to examine whether new laws were consistent with them, and if not, to strike them down.34 Since then, the court has overturned parts of only two new laws, on the grounds that they contradicted the 1992 basic laws. A lively public debate has emerged over Barak’s “constitutional revolution,” with many people arguing in support of the special, constitutional status of these new basic laws and of judicial review as a necessary check on the power of government. At the same time, the charged judicial and public rhetoric since the enactment of the basic laws in 1992 has also triggered a backlash in the political system, and some legislators have taken action to delay the further enactment of basic laws. They have argued that the power of judicial review must not be entrusted to a court that was originally established as a purely “professional” body; instead, a special constitutional court must be established for this purpose, whose composition will be more sensitive to the values and ideals of the Israeli people.35 Their main objection has been that the Supreme Court has expanded its jurisdiction in matters of public life, and that it has consistently taken positions favoring secular, Western, and liberal values, even in the face of explicit legislation to the contrary. They further claim that the process by which judicial review was enabled was itself problematic, since such decisions should be made only in the context of a broader discussion of the constitution as a whole, rather than as an interpretation of a specific basic law.
More than half a century after its establishment, Israel still does not have a formal constitution, and many of its basic laws remain the subject of controversy. The country’s governmental structure is still, with some adjustments, based on what was inherited from the Mandate and the institutions of the yishuv. The only real attempt to introduce a major change in the governmental structure was the institution of direct election of the prime minister in 1992, an effort that failed resoundingly: Direct elections were repealed in 2001, and the next election in Israel will see a return to single-ballot voting and the pure parliamentary system.
Looking back, it is fair to say that the absence of a constitution throughout the period since the establishment of the state has significantly hampered the ability of the nation to resolve fundamental disagreements within a shared political framework. This is true not only for the deep ideological questions—such as the nature of the country’s Jewish character or the status of Israel’s Arab population—which do not appear any closer to resolution than they were fifty years ago.36 It is true also for disagreements over the nature of government institutions and the relations among them.Thus there is, for example, no consensus within the political system on the correct division of authority among the various branches of government, or about the proper relationship between the national and local governments.37 And despite the repeal of direct election of the prime minister, there is still no consensus as to how Israel’s executive and legislature should be related, with the presidential model still having many adherents. In any case, the Israeli system clearly suffers from inadequate checks and balances among the branches of government.38
The lack of consensus over the Supreme Court’s status relative to other authorities has only made the problem worse. Even before the “constitutional revolution,” the court had greatly expanded the scope of its power to review governmental activity.39 Since the basic laws of 1992, and even more so since the United Mizrahi ruling in 1995, its jurisdiction has expanded to include Knesset legislation. While some see this new authority as necessary to protect the rule of law and human rights, others see it as undermining the right of the political branches, accountable to the people and representing all groups, to debate and decide the political and social priorities of the country on their own.
In the final analysis, Israel in its sixth decade is a politically, religiously, nationally, and culturally divided society, burdened with profound disagreements over the character, institutions, and role of the state—perhaps more so than ever before. It continues to pursue its affairs under a makeshift system in which very little is permanent, and fateful constitutional decisions are made as part of ordinary politics. Any government seeking to effect meaningful, long-term change in the institutions of the state is forced to walk through a minefield of short-term interests and political posturing, both within the coalition and outside of it, one that is so perilous as to render the effort futile—even though the institutions currently in place are universally seen as inadequate. As a result, Israeli society has not yet been able to undertake the kind of painful compromises among its constituent groups which would be the first requirement of any effort to adopt a shared political framework that would be seen as legitimate by all.