From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel
European Review of Law Reform (Forthcoming)
24 Pages Posted: 12 Oct 2018
Date Written: September 12, 2018
Israel has no one official document known as ‘the Constitution’ and for nearly half a century was based on the principle of parliamentary sovereignty. Still, since the “constitutional revolution” of the 1990s, Israel’s supreme norms are expressed in its basic laws and laws are subject to judicial review. This situation is the result of the enactment of two basic laws dealing with human rights in 1992- which included a limitation clause - and of a judicial decision of monumental significance in 1995, the Bank Hamizrahi case. At that decision the Supreme Court stated that all basic laws - even if not entrenched - have constitutional status, and therefore the currently accepted approach is that the Knesset indeed dons two hats, functioning as both a legislature and a constituent authority. The novelty of the Bank Hamizrahi decision lies in its notion of a permanent, ongoing constituent authority. The Knesset actually holds the powers of a constitutional assembly, and legislation titled “Basic-Law” is the product of constituent power. Though it is neither complete nor perfect, Israel’s constitution - that is, basic laws - addresses a substantial number of the issues covered by formal constitutions of other democratic states. Furthermore, though this formal constitution is weak and limited, it is nonetheless a constitution that defends the most important human rights through effective judicial review.
Still, given the ease with which changes can be made to basic laws, the special standing of basic laws differs from the standing generally conferred on a constitution. Most basic laws are not entrenched, which means that the Knesset can alter a basic law by a regular majority. Over the past few years, there has been a tendency towards ad casum amendments of basic laws. These amendments are usually adopted against a background of political events that demand an immediate response on the part of the Knesset. The latter then chooses the path of constitutional-not regular-legislation, which is governed by a relatively smooth legislative passage procedure. Even provisional constitutional amendments were passed with relative ease followed by petitions presented to the Supreme Court arguing that the Knesset’s constituent power is actually being “abused”.
These petitions, as well as Israel’s peculiar constitutional development, presented the Supreme Court with several questions as to the power for judicial review of basic laws. Thus far, the Court’s endorsement of judicial review was based on the limitation clause found in both basic laws on human rights, but limitation clauses do not establish the criteria for a constitutional violation by constitution provisions. Does this mean that the Knesset’s constituent power is omnipotent? This paper examines the almost unique position of Israeli jurisprudence in relation to the doctrine of “unconstitutional constitutional amendments.” It focuses on the possibility of applying the doctrine in the Israeli case-laws, the often-raised notion of ‘supra-constitutional’ values that would limit the Knesset’s constituent power, and a third – newly created – doctrine of abuse (or misuse) of constituent power. A central claim of the paper is that in light of the unbearable ease by which basic laws can be amended in Israel, there is an increased justification for judicial review of basic laws.
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