Despite what the Proclamation of Independence of the State of Israel states regarding the preparation of a constitution by the Constituent Assembly, Israel has no written constitution in the formal sense,even though it has a constitution in the material sense - in other words, laws and basic rules that lay down the foundations of the system of government and the rights of the individual. Some of these are formulated in basic laws, some are scattered in other laws, and part - at least until the passing of basic laws dealing with human and civil rights - were interpreted and formulated in a series of decision by the Supreme Court.
There were those who were inclined to view the Proclamation of Independence as a constitution, since it dealt with the foundations of the establishment of the state, its nature, part of its institutions, the principles of its operation and the rights of its citizens. However, in a series of decisions the Supreme Court ruled that the Proclamation of Independence does not have the validity of a constitutional law, and that it is not a supreme law, in light of which laws and regulations that contradict it are nullified. Nevertheless, article 1 of the Basic Law: Human Dignity and Liberty and of the Basic Law: Freedom of Occupation relates to the principles mentioned in the Proclamation of Independence as a normative source. According to this article "the basic human rights in Israel are based on recognition of the value of man, the sanctity of his life and his being free, and they will be respected in the spirit of the principles (mentioned) in the proclamation of the establishment of the State of Israel."....
At the end of the debate, on June 13, 1950, the Knesset decided to adopt a resolution known as "the Harari proposal", named after MK Yizhar Harari of the Progressive Party, who proposed it. According to this proposal "the First Knesset assigns to the Constitution, Law and Justice Committee the preparation of a proposed constitution for the state. The constitution will be made up of chapters, each of which will constitute a separate basic law. The chapters will be brought to the Knesset, as the Committee completes its work, and all the chapters together will constitute the constitution of the state." Following the passing of this resolution, the Constitution, Law and Justice Committee set up a sub-committee on the Constitution....(2007) The State of Israel.
Israel's new Basic Law (see here for an English translation) has received a lot of critical attention in recent days. Much of the criticism I have seen ignores that the basic law is part of a larger, evolving constitutional framework that will constrain the interpretation, implementation, and meaning of it. Of course, this also goes in the other direction: the new basic law will also create new emphases in legal and constitutional interpretation.
The one truly foreseeable outcome of this state of affairs is to make Israel's Supreme Court increasingly important in order to resolve the new tensions, if not outright contradictions, introduced by this new basic law. This is so, even if one assumes that the most recent basic law always supersedes earlier ones. (For example, the new basic law contains material on Jerusalem, which is de facto an amendment to-- and, in fact, mostly a terse restatement -- of earlier basic laws, which dealt with Jerusalem.) For, some of the foreseeable tensions are a consequence of implications of different basic laws.
Because the new basic law is so favorable toward Jewish interests and so-open ended about these -- ["7. The state views the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation"], there will be inevitable appeals that will be asked to balance the demands of impartiality, historical precedent, and say equal dignity (enshrined in earlier basic laws) with legislation that may follow the more partial spirit of this new law. In particular, this part of the basic law may well be used to settle, say, land-claims and other conflicts with Bedouin tribes in the Negev and the Druze in the North. (I return to this below.)
This -- more juridical review -- is something of an ironic outcome; because the majority behind this basic law has been very critical of the tendency of Israel's Supreme Court to take an expansive view of constitutional review (akin to the US juridical review) since the 'constitutional revolution' under Aaron Barak's tenure as Chief Justice.* This will accelerate, undoubtedly, the political significance of the appointment process to Israeli courts even though elected politicians do not have a decisive say in that process. In fact, because of the large number of supreme justices (15) and mandatory retirement, one can say that the Supreme Court represents, in a lagging fashion, the evolving consensus of the legal profession's and the political elite in Israel (even though it may deviate from the political majority in parliament).
There is a more fundamental irony here. One notable feature of Israel's constitutional framework is how democratic it is. Unlike the more liberal constitutions common in North American and Europe (but not unlike the Indian constitutional settlement**), the Israeli constitution is intentionally (and Ben Gurion prevailed in this) not a device to constrain future majorities. (The deviations from liberalism are, on my understanding [recall here, here, and here], a feature and not a bug of Zionism.) Most of Israel's basic laws are the product of a mere parliamentary majority and can be reformed by one.+ Because Israel's parliament is elected by proportional representation in a single, national district with a fairly modest qualifying threshold (3.25%), a determined and strategic minority can make its voice felt. The downside of this democratic sensibility is that minority rights and minority interests/symbols may be slighted or worse. The upside is that Israel's constitutional future remains open to political change by determined political organization. That is to say, rather than reflecting a deeply entrenched historical status quo, Israel's constitutional structure is permanently open to political polarization and negotiation. It follows from my present stance that my criticisms here are primarily political.
This basic law reinforces a wider set of political weaknesses in Israel's strategic position (recall here). Contemporary Zionism (as represented by the State of Israel) has five structural weakness: i) the failure to establish permanent borders for the state of Israel; (ii) to settle what kind of political entity Israel should be so that it can end its near-permanent war-footing and occupation of hostile populations; (iii) (the perception of) Israel's dependence on America's political and military support, which ties Israel to America's strategic interests and electoral politics, while (iv) allowing a split between the interests of Zionism and American Jewry to develop; (v) Israel fails to provide Palestinians with positive incentives and symbolic declarations to come to peace with Israel. On most these, the new basic law reinforces the strategic cul-de-sac that Israel finds itself in. (I will argue this more at length in future posts.)
Today I offer an example related to the claim that "development of Jewish settlement" is a "national value" in the basic law. (As the title of this post suggest, I return to offer a more extended analysis of the implications of the basic law before long.) By itself this hearkens back to the origins of the State. But because minority rights are not even acknowledged in this new basic law -- and the symbolic status of Arab explicitly demoted -- it has dangerous implications even if one ignores (as one should not) Israel-Palestinian relations. Above, I mentioned the Bedouin and Druze for a reason.++ Because of Israeli population growth, their numbers are such that even when unified they may fail to be represented in the Knesset in the future (unless the qualifying threshold is lowered). Today the Druze play an outsized role in Israel military and political affairs (and are especially known for their service in border police, which also recruits among the Bedouin), but demographic realities suggest their influence will wane.
The strategic problem with this basic law (++) is that it will unintentionally be an instrument of creating an internal enemy out of what has been a strategic friend to Zionism (the Druze) or an instrument of the increasing marginalization of the Bedouin. For, it's not hard to imagine, say, politically influential developers creating land conflicts that will be settled at the expense of Druze or, perhaps more likely, Bedouin interests in the name of the Jewish Settlement. In both cases the dangers are non-trivial: the Druze community has had to watch while Israel did little to protect its brethren in the carnage of Syria's civil war; now a new basic law does little to acknowledge their existence. Disillusionment with Israel is a live possibility. The Bedouin are among the poorest Israeli citizens. Given the rise of Islamic radicalism among the Bedouin in the adjoining Sinai, this risks a colossal own goal by the State of Israel.***