+972 Magazine / February 24, 2023
The government’s assault on the judiciary is driven by the same urge as the state’s founders: to protect their power to privilege Jews over Palestinians.
Tens of thousands of Israelis have filled the streets of major cities in recent weeks to protest significant judicial reforms that the new far-right Israeli government, elected late last year, is seeking to ram through the Knesset with a narrow majority. These developments have been framed as a major constitutional crisis and have brought on talk of an Israeli “civil war” and drawn the intervention of concerned outsiders. This crisis, however, is not about diverging from the essence of the Israeli political system, but rather about continuing it. To understand why, one must look at the origins of Israel’s constitutional crisis, which was and continues to be shaped by the state’s desire to prioritize settler colonialism over liberal governance.
A country without a constitution
The delimiting of powers between branches of government, such as Israel’s legislative Knesset and the judicial courts system, is, in other contexts, a matter settled by supreme law, as in a constitution. Israel, however, has no constitution. This has created fertile ground for the country’s branches of government to reshape the extent of their own powers in the system. Such was the case with the Israeli Supreme Court in the 1990s, which took steps to interpret a hierarchy into laws, expand judicial review, and determine the standards for government violation of rights. This moment in the 1990s became known as Israel’s constitutional revolution; but the new right-wing government today seeks to push back against these changes and further limit the court’s powers by giving ultimate authority to the Knesset. At the center of the current crisis is a legal reform that would allow the Knesset to override a court ruling with a one-vote majority. The absence of a constitution means that the only thing that will determine the outcome of this battle is political power.
But why does Israel not have a constitution? There is a long answer to this question, but the shortest version comes down to one element, or rather one man: David Ben-Gurion, Israel’s first prime minister, who was also its longest-serving PM until Benjamin Netanyahu overtook him in recent years, and who played a crucial role in the founding of the state in its earliest years. When Israel declared its independence in May 1948, it did so in the midst of the Nakba and as an international crisis was developing out of the failure of the international community to navigate the question of Palestine. Hundreds of thousands of Palestinian refugees were forced from their homes and sought refuge in neighboring states by the time the war ended in 1949. But Israel’s Declaration of Independence — a document that many Israeli liberals point to as proof of the state’s liberal ethos — states that Israel would adopt a constitution by October 1948. Three-quarters of a century later, this has yet to happen.
Important context here is the newly founded state’s precarious relationship with the international community. The international legitimacy of the idea of a Jewish state in Palestine hinged on the broad acceptance of UN Resolution 181, the 1947 partition plan that called for the splitting of Palestine into separate Jewish and Arab states in economic union. There is no shortage of problems with the 1947 plan, many of which led the United States to ultimately withdraw its support for the resolution in March 1948. One important element of the plan, however, was the requirement for the new states to adopt a constitution “guaranteeing to all persons equal and non-discriminatory rights in civil, political, economic and religious matters and the enjoyment of human rights and fundamental freedoms, including freedom of religion, language, speech and publication, education, assembly and association.” Among Israel’s early goals to establish legitimacy after declaring independence was to gain acceptance into the United Nations as a member state. The commitment to adopting a constitution, as Resolution 181 had called for, was included in the declaration with this in mind.
But even as the Israeli state established itself through the conquest of territory during the war, the process of adopting a constitution stalled — and no one played a bigger part in this than David Ben-Gurion, who rejected the efforts of the constitutional drafting committee and ultimately launched a campaign against a constitution for Israel in early 1949. For Ben-Gurion, who was running a state in its infancy and dealing with major challenges, the idea of a supreme law that would limit the state’s power was the last thing the state needed. One of the key challenges the new state faced was around the question of citizenship. During this time, the state was engaged in a major effort to demographically re-engineer the country both by depopulating Palestinian towns and villages and forcibly preventing the return of refugees on one hand, and facilitating a massive influx of Jewish immigrants from outside of Palestine on the other. How could the state possibly define a concept of citizenship that was both in keeping with the principles of equality and non-discrimination stipulated by the UN resolution while also privileging Jews outside of Palestine and denying Palestinians living in refuge the right to return?
This fundamental conundrum led Ben-Gurion to reject some 18 drafts of an initial citizenship law, and his frustrations with such legal principles of equality imposed from the outside led him to argue against a constitution altogether. In a major speech to the Knesset in 1949, Ben-Gurion outlined his opposition to a constitution, judicial review, and a hierarchy of laws. Instead, he argued that the state should have maximum flexibility to address the issues of the day, and that the then current generation of lawmakers had no right to bind future lawmakers who might be facing a different set of problems. If Israel were to get dragged into a constitution debate, Ben-Gurion argued, it would “damage the essential needs of the state: preparations for aliyah [Jewish immigration], settlement, raising living standards.” He then added: “These to my mind are the most pressing matters for the Knesset and for the state. The matter of a constitution will completely deflect us to another course.”
Ultimately, the conundrum facing Israel in those early years, which was born of the contradiction inherent in the idea of a Jewish democracy in Palestine, was “resolved” by a compromise known as the Harari proposal. The compromise, named for Yizhar Harari, the Knesset member who proposed it, won consensus around the idea of passing Basic Laws in a piecemeal fashion instead of drafting an entire constitution. This would give the state the flexibility it needed to carry out its settler-colonial vision without having to deal with the constraints of a supreme law. And over time, the Harari resolution stated, Basic Laws passed by the Knesset could come together to form a constitution. This still has not happened.
Ben-Gurion argued in 1949 that laws should be passable by a one-vote majority and the courts should not be able to limit the legislature in this regard. His arguments are very much in tune with those of the far-right Israeli government that is pursuing judicial reform today, making it clear that their agenda is not an effort to change the origins of the state, but to remain in line with them.
Settler colonialism’s modern demands
Among the elements backing “judicial reform” in the Israeli political system today are the most right-wing forces in Israeli politics. While political parties like Likud and some of its religious-nationalist allies would not look at Ben-Gurion as their political forefather (their political lineage runs through Menachem Begin’s Herut party, Ben-Gurion’s then rival), they are nonetheless making arguments similar to those made by Israel’s first prime minister, and are doing so for similar reasons.
The agenda of the current government begins with a singular overarching vision that initially brought the coalition together. As Netanyahu put it in a tweet at the end of last year: “The Jewish people have an exclusive and unquestionable right to all areas of the Land of Israel. The government will promote and develop settlement in all parts of the Land of Israel—in the Galilee, the Negev, the Golan, Judea and Samaria.”
Israel’s longest serving prime minister, Netanyahu, and its second longest, Ben-Gurion, each saw the courts, as well as laws limiting state power, as key obstacles to their top priority: settler colonialism. While Netanyahu’s tweet makes clear that the scope of the project has expanded from Ben-Gurion’s day, the focus of the process remains the same: ensuring that Jewish demography has the greatest possible hold over Palestinian geography, with no regard for human and civil rights.
Netanyahu’s government, and especially the radical ministers he has empowered, want to see the annexation of the West Bank into Israel, the acceleration of home demolitions in Area C, and more barbaric punitive measures directed at both Palestinians engaged in armed struggle against the occupation and at their families. They also want to direct their fire beyond the West Bank toward Palestinian citizens of Israel as well, and it might be here that the courts are a bigger obstacle. As the executive director of Israeli human rights organization B’Tselem, Hagai El-Ad, has explained, the Israeli court system has increasingly acted as a rubber stamp for the Israeli state’s whims in the West Bank in recent decades, but has still presented some pushback — however meager — when it comes to the other side of the Green Line.
As tens of thousands of Israelis protest the reforms that Netanyahu’s government seeks to ram through in hopes of “saving the essence” of Israeli democracy, they are largely avoiding a confrontation with the foundational problem, namely that the essence of the Israeli system is to put settler colonialism ahead of any liberal principles around democracy, equality, or human rights. Of course, to the crowds in the streets, this looks like a battle to save democracy. But this is precisely because it is not these crowds that have been the target of Israel’s settler colonialism; they have been its beneficiaries. As Ahmad Tibi, a Palestinian citizen of Israel who serves as an MK once put it, Israel is indeed Jewish and democratic: it is democratic toward Jews and Jewish toward Arabs.
Opposition, but to what exactly?
The current political opposition to Netanyahu, a motley crew of Israeli political personalities who are largely devoid of any coherent ideology and are bound together primarily by their desire — and their repeated failure — to dislodge Netanyahu from power, faces serious questions as it navigates opposition to the legal reforms that it seeks to frame as an unprecedented crisis. Does this loose group oppose the settler-colonial system that these legal reforms would further enable, or does it simply seek a return to the settler-colonial system, but without Netanyahu at its head?
Thus far, all indications are that they prefer the latter course, not simply because they believe it is politically expedient, but also because, ideologically, they too are committed to the system of Jewish privilege. But it is the very commitment to that privilege that has prevented them from building any real partnerships with the Palestinian citizens of Israel who could actually lend the critical support needed to shift the political winds. For all Palestinians, including those with Israeli citizenship, there is little urgency to try to “save” Israeli democracy, primarily because for them it has never existed. Not only is a political system that is constructed to be democratic toward some but not all not a democracy, it is also not going to seem to those it disadvantages worth saving.
Yousef Munayyer is a Palestinian-American scholar based in Washington, D.C.