How to Address the Israeli Constitutional Crisis?

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The Path to Stability and Effective Governance: Strengthening Parliamentary Oversight and Enhancing Public Legitimacy of the Basic Laws

The path to greater governmental stability and effective governance runs through the strengthening of the opposition, the institutionalization of parliamentary oversight tools such as parliamentary questions (she’elot), and—no less importantly—through the involvement of the public in the substantive ratification of Israel’s Basic Laws. This, in turn, would reinforce the legitimacy of the judiciary as the constitutional gatekeeper.

Across various sectors of Israeli society, there is a prevailing sense that we are living through a moment of constitutional crisis. This sense did not subside with the results of the second 2019 election cycle. Yet, Israeli society lacks consensus regarding the nature and causes of this crisis. What one group perceives as a constitutional breakdown, another might celebrate as democratic vindication. It is worth reflecting on the roots of this divergence and exploring possible paths for reform that would safeguard the continued development of Israel’s still-young democracy.

Israel’s system of proportional representation weakens governance and governmental stability, increases the bargaining power of small parties, exacerbates social fragmentation, and hinders the formation of an opposition that the public can regard as a viable governing alternative. Nevertheless, this electoral system is important to Israeli democracy insofar as it ensures minority representation. One possible reform worth considering is raising the electoral threshold to 5–6%, which would reduce the number of small parties. This would incentivize ideologically aligned parties to unify prior to elections and encourage compromise during coalition formation. It would also help diminish the tribalism that characterizes segments of Israeli society.

There is a need to institutionalize stronger formal frameworks to cultivate an opposition that can be viewed as a credible alternative to the ruling government. For instance, creating an official "shadow government," composed of opposition members serving as designated "shadow ministers," could help these figures develop subject-matter expertise, public reputations, and serve as a reference point for the media. Rather than general regional criticism, the opposition would conduct personal scrutiny of individual ministers. Allocating dedicated budgets to the opposition—even to the extent of establishing an official opposition office—would enhance its structural capacity. It is insufficient to regulate the status of the Leader of the Opposition alone; the opposition must be institutionalized as a collective political force.

Furthermore, the institution of parliamentary questions and the Knesset’s broader oversight functions must be reinforced. One need only look to how the British Parliament or the U.S. Congress deploy these tools to fulfill their watchdog role in a democracy. In Israel, ministers often disregard such questions or respond to them after undue delay, thereby neutering their democratic utility.

The government itself suffers under the current proportional electoral system, which results in large, fragmented coalitions and incentivizes the transfer of decision-making authority to smaller bodies, such as the Security Cabinet. Today, many decisions are taken by the Cabinet, while the government as a whole remains formally accountable, despite many ministers lacking access to, or influence over, the deliberations. This undermines both government accountability and transparency—core components of democratic governance.

The Knesset has also been weakened in its legislative role through the operation of the Continuity Law and the expansive use of the Arrangements Law to pass large numbers of bills subject to coalition discipline. The Continuity Law, common in proportional systems, allows a bill to pass its first reading in one Knesset and complete the legislative process in subsequent sessions. In this manner, no single Knesset bears full responsibility for the legislation. There is also a strong case for legislating limits on the use of the Arrangements Law, restricting it only to provisions directly and substantively linked to the state budget.

A further challenge lies in our public discourse, which is marked by polarization, the delegitimization of opposing ideological views, superficiality, and a lack of good faith. Not every opinion with which we disagree constitutes an existential threat to national identity. It is time to move beyond slogans and absolutist framings. For example, the override clause, though undesirable to many, does not inherently destroy Israeli democracy. In a context of liberal legislatures and conservative courts, such a mechanism might even become attractive to its current critics. Even if Basic Law: The State Budget (Biennial) is not normatively desirable, this does not justify a judicial finding that it threatens Israel’s fundamental constitutional values.

When every policy initiative is framed as a "war for the soul of the nation," both sides harden their positions, making it difficult to foster mutual attentiveness or compromise. A discourse in which the "nuclear weapons" of constitutional adjudication—namely, fundamental constitutional principles—are perpetually threatened as a means to annul Basic Laws only intensifies unnecessary polarization. There is room for more robust use of conventional judicial tools, foremost among them constitutional interpretation. For example, those who oppose the content or logic of Basic Law: Israel – The Nation-State of the Jewish People can make interpretive efforts to reconcile it with the broader framework of Israel’s Basic Laws. This provision constitutes a new chapter in Israel’s constitutional structure, not an amendment to existing Basic Laws, and should be interpreted accordingly. It must not be read in a manner that diminishes Israel’s democratic character or undermines the right to equality, which is part of the constitutional principle of human dignity.

We also face a serious challenge when minority groups seek social inclusion at the expense of other minority groups, often through exclusion. These groups demand that the Court decide whose claim to inclusion should prevail. The long-term consequences of such adjudications are critical for Israel’s democratic future. The Court must be willing to pierce rhetorical façades and assess the sincerity of the competing claims. It is untenable for the inclusion of ultra-Orthodox groups in the military or academia to come at the expense of women. Indeed, if we were to take the ultra-Orthodox position at face value, we would have to create for them entirely sterile public spaces. From a religious standpoint, sexual thoughts between men are no less problematic than those directed at women. Just as the Court would immediately reject any claim for gender-segregated male-only spaces based on such reasoning, so too must it reject similar claims when directed at women. We must safeguard and reinforce the integrative institutions—the societal "melting pots"—that sustain our fragile civic fabric.

Finally, the Supreme Court must be relieved of some of the burden it currently carries. The doctrines of proportionality and reasonableness have become overly technocratic tools, deployed under the crushing weight of an overloaded docket. The time has come for the Court to function primarily as a true Supreme Court, not as an appellate court of last resort. Yet as long as other branches of government feel that the constitutional revolution occurred without their consent, such a reform may remain elusive. These branches appear to prefer that the Court "choke" on its docket rather than devote attention to politically sensitive issues.

It is time to involve the people directly in legitimizing the content of Israel’s Basic Laws—whether through referenda or elections specifically centered on constitutional issues. This is essential to bestow the public legitimacy that Basic Laws currently lack. With such legitimacy in place, the judiciary’s authority as the guardian of the constitution will be correspondingly strengthened.

Suggested Citation:

How to Address the Israeli Constitutional Crisis?, Israel Democracy Institute, September 22, 2019.