The Beginning: The Declaration of Independence envisages a constitution within several months
On November 29, 1947, the UN General Assembly resolved to terminate the British Mandate over Palestine and to establish two states, one Jewish and one Arab, with Jerusalem being under special international regime (the "partition resolution", or Resolution 181).
Following the UN resolution, the Jewish community in Palestine (the Yishuv) took it upon itself to establish the governing institutions of the forthcoming Jewish state. In March 1948, the National Committee (Va-ad Leumi) and the Jewish Agency for Israel – the governing Zionist organizations in Palestine and abroad respectively – founded the National Council. The Council consisted of 37 members representative of the various Jewish groups in Palestine – socialists and revisionists, Sephardic and Ashkenazi, religious nationalists and secularists, liberals and communists. Chaim Weizman, who would later be Israel's first President, was elected to lead the Council. The Council chose from among its members an executive body of 13 members, headed by David Ben-Gurion, later Israel's first Prime Minister. On Friday, the fifth day of Iyar 5708, the 14th of May 1948, the last remaining British forces in Palestine left the land. The members of the National Council met in Tel Aviv and declared the establishment of the State of Israel. At this meeting, the Council became the Provisional State Council, the highest institution of the new state. The Declaration of Independence, which was approved and signed by the members of the Provisional State Council, asserted that within four months a Constituent Assembly would be elected, which would write a constitution in which the permanent governing institutions would be determined:
WE HEREBY DECLARE that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), and until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the National Council shall act as a Provisional Council of State, and its executive organ ... shall be the Provisional Government of the Jewish State, to be called "Israel".
The Constituent Assembly fails to draft a constitution The Constituent Assembly was elected in Israel’s first general elections on January 25, 1949. The Constitution, however, was never completed. The first act of the Constituent Assembly was to pass the "Transition Law" by which it reconstituted itself as the "First Knesset." The Assembly thereby became the Legislature of the State of Israel. A protracted debate ensued between those favoring immediate enactment of a constitution, and those who believed either that there should be no constitution, or at the very least, that the time was not yet ripe. The Knesset adopted a compromise, transferring the powers of the Constituent Assembly to subsequent Knessets, and introducing the idea of a constitution “by chapters” instead of one formal written document. The text of this resolution, known as the "Harari Resolution" after its sponsor, MK Yizhar Harari, read as follows:
The First Knesset instructs the Constitution, Law and Justice Committee to prepare a draft State Constitution. The constitution will be built chapter by chapter, in such a way that each will constitute a separate Basic Law. The chapters shall be presented to the Knesset when the committee completes its work, and all the chapters together shall comprise the Constitution of the State.
Enacting the chapters of the constitution: The Basic Laws The first Knesset was dissolved before its time, without enacting a single chapter of the constitution. The Knessets that followed occasionally used their Constitutive powers to enact Basic Laws. Eleven Basic Laws have been enacted, dealing with two main issues: the powers of the governing bodies, and basic human rights. These are:
The Constitutional Revolution: Or, How the Supreme Court acquired the power of judicial review in the absence of a written constitution.
Until 1995, it was not clear that the basic laws enjoyed any constitutional supremacy. While it was widely accepted thatthe Basic Laws dealt with uniquely constitutional issues, according to the Israeli Supreme Court’s interpretation , these laws had no greater status than ordinary laws, and thus new laws were held to supercede old ones, even if a new law – passed, for instance, by a 3-2 majority in plenum – contradicted a Basic Law of the State. The only laws which could be used to strike down legislation were those parts of basic laws with “entrenchment clauses” establishing their supremacy. Most famous was Article 4 of the Basic Law: The Knesset, which stated, The Knesset shall be elected by general, national, direct, equal, secret, and proportional elections, in accordance with the Knesset Elections Law; this section shall not be altered save by a majority of the members of the Knesset. When article 4 was written, it was almost the only basis for the review of legislation. This is no longer true. In 1992, the Knesset adopted two new Basic Laws concerning human rights (Freedom of Occupation, and Human Dignity and Freedom). The Freedom of Occupation law explicitly included a provision preventing other laws from infringing on it; but a proposal to also entrench the more important Basic Law: Human Dignity and Liberty failed by one vote. Perhaps more importantly, both laws had a limitation clause stating that, There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.
A minimalist interpretation would simply have added the two new Basic Laws to the short list of entrenched laws. Chief Justice Aharon Barak, however, championed a more activist interpretation of the new laws, declaring in Bank Mizrahi v. The Minister of Finance (1995) that their enactment – and particularly the new Limitation Clause concept – signified the elevation of all Basic Laws to supremacy over ordinary legislation.
This historic decision – the equivalent of the United States’s famous Marbury v. Madison – put Basic laws on the top and established the practice of Judicial review of statutes. What this meant was that the Supreme Court declared the eleven basic laws drafted over some 45 years a constitution, and granted itself the power to strike down new legislation which contradicted any basic law. With this “constitutional revolution,” the court created a constitution, unbeknownst to the vast majority of Israelis and the world. This revolution has had its positive and negative ramifications. Israel’s system of law and basic principles are now stabilized by a constitution, but the text is incomplete and unknown to the public, failing in the fails in the educational, civic, and political functions a constitution should and would fill if it grew out of an inclusive process of public deliberation. The Bill of rights in the basic laws is unfinished, and the issue of Israel as the state of the Jewish people is almost ignored. Finally, the court’s interpretation and application of some of the Basic Laws has alienated Members of Knesset (particularly the Orthodox) who originally supported the Basic Laws themselves in plenum. Many members of the Constitution, Law, and Justice Committee share these criticisms and the Constitution by Broad Consensus Project is aimed in part at remedying the situation.
