Analysis from Israel

The past few weeks have witnessed seemingly endless debate over a proposed Basic Law defining Israel as the Jewish nation-state. But this debate has focused almost exclusively on the bill’s rather anodyne content, thereby ignoring a far more serious problem: Quasi-constitutional legislation is supposed to reflect a broad societal consensus. It shouldn’t be rammed through with a razor-thin coalition majority.

This might seem like an unreasonable quibble, given that the principle at stake has already been thoroughly gutted by the nation-state bill’s opponents. After all, many of these opponents vociferously defend the constitutional status of the Basic Law: Human Dignity and Liberty, which was approved by a mere quarter of the 120-member Knesset (the vote was 32-21); the nation-state bill will certainly be approved by a far larger majority – at least 61 MKs.

Human Dignity and Liberty also violated another fundamental rule: that constitutional legislation can only be adopted by people who actually know they’re voting on a constitution. As I explained last month, most of the MKs who voted on Human Dignity and Liberty never dreamed the Supreme Court would assign it constitutional status and then use it to invalidate subsequent legislation enacted by much larger majorities; if they had, the law probably wouldn’t have passed.

Thus the moment the Supreme Court decided to treat Human Dignity and Liberty as a constitution, it threw the rules of the constitutional game out the window. And by enthusiastically supporting this decision rather than protesting the imposition of a constitution by judicial fiat, many of the same people now protesting the nation-state bill actively collaborated in trashing these constitutional ground rules. So one could reasonably ask why the bill’s proponents should care about these rules now.

Moreover, ever since Human Dignity and Liberty was enacted in 1992, the court has used it to shred the former delicate balance between Israel’s universalist democratic character and its particularistic Jewish one, giving far more weight to the former than the latter. The nation-state bill, at bottom, is nothing but an effort to restore this balance. Thus one could argue that it’s merely a correction to the previous breach of the constitutional ground rules rather than a new breach.

I’m sympathetic to both these arguments. Nevertheless, I think there’s a better solution than creating a kind of constitutional war of attrition, in which each new government exploits its narrow majority to ram through Basic Laws of its choosing in an effort to counteract those rammed through by previous governments. Such a war would be deeply detrimental to Israel’s long-term interests, for two reasons.

First, a constitution is supposed to unify a country by reflecting broad common denominators. But Basic Laws enacted by narrow majorities would have the opposite effect: They would intensify existing divisions on fundamental issues by codifying them into legislation. Since use of the coalition majority would enable the opposition’s views to be ignored, each Basic Law would end up being loathed by a particular sector of society. And seeing laws they hate elevated to constitutional status would increase each group’s alienation from both other social groups and the state as a whole. For proof, just look at how many different groups have been alienated by the court’s abuse of Human Dignity and Liberty.

Second, a welter of conflicting Basic Laws would merely increase the court’s power to effectively run the country, since it would be responsible for resolving these contradictions. There would be endless court cases in which, say, someone claimed that a given law or cabinet decision violates Human Dignity and Liberty, and the government countered by citing the nation-state law, or vice versa. In all such cases, the ultimate arbiter would be the court.

And in exchange for these evils, the nation-state bill probably wouldn’t even achieve its goal of restoring the universalist-particularistic balance, since it would ultimately be interpreted by the same Supreme Court that twisted Human Dignity and Liberty into something it was never meant to be. Does anyone seriously think the court couldn’t “creatively interpret” the nation-state law in a way that similarly distorts its intention?

Thus it would be far more productive to address the root of the problem: the subversion of the constitutional ground rules that enabled a law passed by a quarter of the Knesset to obtain constitutional status to begin with. And this can’t be done by ramming through more “constitutional” legislation via narrow majorities; that would merely further undermine proper constitutional principles.

Instead, what’s needed is a law dictating the rules for passing constitutional legislation, one that would mandate a suitably broad majority. Such a law must also include a sunset provision stating that any preexisting Basic Law not initially enacted by the requisite majority would automatically expire after a given time period unless reenacted by the proper majority.

A law of this type could generate much broader support than the nation-state bill has. For instance, it would almost certainly be backed by the haredi (ultra-Orthodox) parties, which oppose the nation-state bill, and perhaps even the Arab parties, which have an interest in precluding the passage of Basic Laws like the nation-state bill.

Moreover, it would be virtually impossible for anyone to malign such a law as anti-democratic. I don’t actually think the nation-state bill is anti-democratic, but the fact that it’s something not every democracy has, makes it vulnerable to being misinterpreted as such. In contrast, every democracy requires constitutional legislation to be approved by super-majorities; what could possibly be undemocratic about Israel finally doing the same?

If such a law were passed, I suspect neither Human Dignity and Freedom nor the nation-state bill would survive as Basic Laws. Rightly or wrongly, both have become controversial enough that they could obtain the requisite super-majority only as part of a grand constitutional bargain, and I don’t think Israel is ready for a grand constitutional bargain; it’s still too divided over too many issues.

But since Israel muddled along without a constitution for decades until 1992, there’s no reason to think it couldn’t do so again. And no constitution at all would be much better than a pseudo-constitution rammed through by unacceptably narrow majorities.

Originally published in The Jerusalem Post

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Why Israel Needs a Better Political Class

Note: This piece is a response to an essay by Haviv Rettig Gur, which can be found here

Israel’s current political crisis exemplifies the maxim that hard cases make bad law. This case is desperate. Six months after the coronavirus erupted and nine months after the fiscal year began, Israel still lacks both a functioning contact-tracing system and an approved 2020 budget, mainly because Prime Minister Benjamin Netanyahu is more worried about politics than the domestic problems that Israel now confronts. The government’s failure to perform these basic tasks obviously invites the conclusion that civil servants’ far-reaching powers must not only be preserved, but perhaps even increased.

This would be the wrong conclusion. Bureaucrats, especially when they have great power, are vulnerable to the same ills as elected politicians. But unlike politicians, they are completely unaccountable to the public.

That doesn’t mean Haviv Rettig Gur is wrong to deem them indispensable. They provide institutional memory, flesh out elected officials’ policies, and supply information the politicians may not know and options they may not have considered. Yet the current crisis shows in several ways why they neither can nor should substitute for elected politicians.

First, bureaucrats are no less prone to poor judgment than politicians. As evidence, consider Siegal Sadetzki, part of the Netanyahu-led triumvirate that ran Israel’s initial response to the coronavirus. It’s unsurprising that Gur never mentioned Sadetzki even as he lauded the triumvirate’s third member, former Health Ministry Director General Moshe Bar Siman-Tov; she and her fellow Health Ministry staffers are a major reason why Israel still lacks a functional test-and-trace system.

Sadetzki, an epidemiologist, was the ministry’s director of public-health services and the only member of the triumvirate with professional expertise in epidemics (Bar Siman-Tov is an economist). As such, her input was crucial. Yet she adamantly opposed expanding virus testing, even publicly asserting that “Too much testing will increase complacence.” She opposed letting organizations outside the public-health system do lab work for coronavirus tests, even though the system was overwhelmed. She opposed sewage monitoring to track the spread of the virus. And on, and on.

Moreover, even after acknowledging that test-and-trace was necessary, ministry bureaucrats insisted for months that their ministry do the tracing despite its glaringly inadequate manpower. Only in August was the job finally given to the army, which does have the requisite personnel. And the system still isn’t fully operational.

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