About the Constitution Drafting Project

Israel has no written constitution. Various attempts to draft the formal document since 1948 have fallen short of the mark, and instead Israel has evolved a system of basic laws and rights, which enjoy semi-constitutional status. This provisional solution is increasingly inadequate for Israel's needs, and the necessity for completing this historic task has never been so urgent.

In May 2003, the Constitution, Law, and Justice Committee of the Knesset, chaired by Member of Knesset Michael Eitan, initiated the Constitution by Broad Consensus Project, which aims to write a constitution for the State of Israel. The Committee has been meeting weekly since then with the aim of consolidating a draft of a constitution that will enjoy wide support among Israelis and Jews worldwide. The proposed constitution will ultimately be brought to the Knesset and the people for consideration and ratification.

The Committee believes that since Israel is the democratic state of the Jewish people, it is appropriate to appeal to the worldwide Jewish community and invite their input on central constitutional issues, particularly regarding those questions which involve the relationship between Israel and the Jewish people.

This website is a first step in this direction. It includes:

• Historical background on the constitutional project in Israel.
• Legal, social, and political information presenting and explaining major constitutional issues and disputes.
• Summaries of the Committee meetings.
• Proposed drafts of chapters of the constitution.

This section describes Israel's need for a written constitution, a short history of the attempts to frame a constitution, including the “constitutional revolution” of 1992, and general information on the Constitution by Broad Consensus Project.

A constitution serves functions and goals that are particularly important for Israel. It establishes the basic principles and laws of the state, its credo, values, and basic structure of government. In a democratic state, the constitution places limits on government, in order to prevent it from abusing its powers. The constitution also aims to prevent a tyranny of the majority, and therefore must protect both basic human rights and collective rights of minority groups.

The constitution defines the structure of government and limits its powers A written constitution defines the separation of powers between the branches of government. It also serves to remind the state institutions that their powers are limited and that their operation is subject to the rule of law. Without a written constitution, the division of powers becomes a political power struggle instead of a matter of sound principles of government. One prominent example is the tension that exists today between the Supreme Court and the Knesset, which is in large part a result of the lack of a constitution clearly delineating the respective powers of the Judiciary and the Legislature.

A constitution will have important symbolic and educational value. It will formally establish the dual nature of Israel as Jewish and democratic, and emphasize the commitment of its citizens to both democratic and Jewish values. The constitutional process will have significant value even if the current project ultimately fails. Deliberating the basic commitments that Israeli citizens share as a community may contribute to national unity and help to reduce social rifts and tensions, as well as reduce feelings of hostility and alienation that exist between the various sectors of Israeli society. Israel is a divided and polarized society where a sense of unity and solidarity, and the willingness to cooperate and compromise are low, while the potential for conflict and even violence is high. Under such circumstances, there is great value in a constitution that gives all groups a sense of belonging to the political community, and a sense of security that their basic interests will be respected. A constitution by broad consensus has the potential to bridge gaps, be a source of political and democratic solidarity and unity, and constitute a strong foundation for the continued existence of the state. Finally, even if this project should fail to produce a formal constitution, many sections are likely to be adopted as individual laws.

Israel's constitution will protect the basic liberties and rights of all its citizens, and will safeguard collective rights of minority groups from the threat of a tyranny of the majority (that is, an attempt by the majority to violate the rights of individuals and minorities). Israeli society includes several potentially vulnerable minority groups, particularly Arab Israelis; it is critical to ensure that political participation is open to all and that no minorities are marginalized or excluded. A written constitution will entrench Israel's fundamental values and commitments to human rights, defending them against short-term impulses to compromise them.

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 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.

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 Knesset (1958)
• State Lands (1960)
• The President (1964)
• The Government (1968)
• The State Economy (1975)
• Israel Defense Forces (1976)
• Jerusalem (1980)
• The Judiciary (1984)
• The State Comptroller (1988)
• Human Dignity and Liberty (1992)
• Freedom of Occupation (1992)

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.