A constitutional coup will backfire

Meeting all of the desires of the ‘winning side’ would likely cause a sharp backlash once a different majority is in power – and have dire long-term consequences

Recent statements by leaders of the upcoming coalition parties, and the leaks from the negotiation rooms, indicate that Israel is facing a dramatic constitutional transformation. If all the demands of some of the political players are met, we will be living in a country with an entirely different character and constitutional system. The result of such drastic and highly controversial change, effected through the exploitation of temporary political power, would be terrible. Israel’s legal system will turn into a pendulum that swings with every shift of political power. If this happens, Israel’s constitutional and legal systems, which already suffer from dwindling public trust, will be reduced to mere political levers at the hands of transitory governments. These systems will be afflicted with an instability that will impair their ability to interpret and enforce the law.

Prime Minister Benjamin Netanyahu sits next to the President of the Supreme Court – Judge Esther Hayuth. Photo by Amos Ben Gershom.

Israel has no written constitution, and the Basic Law meant to regulate the balance of power between the branches of government, in particular between the Knesset and the Supreme Court – namely, Basic Law: Legislation – has yet to be enacted. Therefore, as with other constitutional issues such as the adoption of an Israeli bill of rights, the system of checks and balances between government authorities was left for the Supreme Court to establish. It did so, at least in the view of most of its justices, on the basis of Knesset legislation. The apex of this creative-activist legal practice was the “constitutional revolution” in which the Supreme Court declared itself authorized to nullify laws passed by the Knesset. But along with this, there have been a number of more delicate processes and balances introduced by the Court. These instruments, and the Supreme Court’s involvement in major ethical issues over the years, led to harsh criticism leveled at it today – mainly from the parties that are expected to form the governing coalition in the coming days, but also among jurists from the “other side.”

According to public statements and media leaks, it appears that the coalition agreements now being drafted will include three components capable of dramatically affecting the character of Israel’s constitutional regime: an “override clause” that will allow the Knesset to “bypass” Supreme Court rulings; a stipulation that the Supreme Court may nullify laws only through a broad panel and a supermajority of justices; and a change to the way justices are appointed to the Supreme Court.

Different ways may be proposed for effecting the constitutional transformation, as a whole and for determining the arrangements entailed by each of the three components. An extremist approach would see the institution of a comprehensive override clause requiring only a 61-member Knesset majority, while making a very large majority of justices necessary to nullify legislation; this radical picture would be completed by placing the appointment of justices in the hands of the Knesset and the government. But it is also possible to propose other, more balanced ways that would take the sometimes-justified criticism of the Supreme Court into account, and strike a different balance from the existing one – but not one that would threaten the foundations of the governmental system or Israel’s identity as a liberal democracy.

The temptation of the election’s “winning side” to fully exploit the immense power the new coalition will hold, and to mount a constitutional coup, is understandable. After many years in which change of this kind was blocked, an opportunity has now arisen to fix everything the winning side sees as needing correction and to “return the power to the people.” But this is a dangerous temptation and surrendering to it would amount to a Pyrrhic victory for those seeking the change, and a real threat to the justice system. Even if, in the short term, such change indeed transforms the Israeli constitutional system and gives the elected majority absolute primacy in setting policy and prioritizing values, in the long run it will likely cause harm in several areas, apart from the dire consequences that many think will result from the implementation of the proposals themselves.

Sharp backlash

First, so drastic a change would destabilize the legal system, and could impede its ability to function. Second, such change would further erode the public’s already-low trust in the judicial system. But worse still, the realization of all of the desires of the “winning side” would almost certainly cause a sharp backlash once a different majority is in power. Israel’s constitutional system, the Supreme Court, and the mechanisms that regulate the balance of power between the branches of government would become hostage to political power that changes hands with the rapidity of Israeli governments. One of the central elements of a constitutional system is stability. If this state of affairs comes to be, our constitutional system will be anchored by a fluttering leaf.

To prevent these negative outcomes, members of the nascent coalition seeking to change the legal system need not give up the endeavor. They should, however, institute their reform on the basis of dialogue with the Supreme Court justices and the Israeli legal community, and the employment of balanced interim solutions – out of an understanding that stubborn insistence on every desired change could cause Israel’s constitutional system to implode, certainly in the long run. The formula that should guide them and all those involved is a simple one. The broader the legitimacy for a constitutional change process, the more fundamentally successful it will be, in and of itself, as well as for the stability and capacity to function of Israel’s constitutional system.

First published by ‘The Times of Israel’