© Rivka Weill, Sui Generis? The Hybrid Israeli Constitutional Experience,
May 8, 2009, Working Paper, may be cited from www.ssrn.com
1
Sui Generis? The Hybrid Israeli Constitutional Experience
Rivka Weill*
Abstract
Consider a country where American-style judicial review is applied to primary
legislation, yet its constitutional documents are enacted haphazardly--and in the Britishstyle,
using procedures applied to regular legislation. For nearly half a century, this
country has acted as if it had a sovereign legislature, yet its highest court decided in
1995 that its most basic norm is that of a limited legislature constrained by a formal
Constitution—the existence of which comes as a surprise to constitutional scholars and
citizens alike. How then was the country’s Supreme Court able to revolutionize its
constitutional system in one tangled decision? The fascinating answer is that the Court
succeeded by relying both on legislative enactment and more heavily on comparative
constitutional experience to suggest that principles of democracy, the rule of law, and
respect for individual rights require a formal Constitution.
This is the story of Israel’s version of the U.S. Marbury v. Madison decision. The story,
detailed in this article, presents three conflicting yet complementary traditions: monism
in the British-style; dualism in the American-style; and foundationalism in the Germanstyle.
It is a story of how and whether self-legislative entrenchment may create a higher
norm. It reflects a dualist approach, despite the lack of a distinct legislative track for the
formation of constitutional law. It reveals aspirations for law higher than even the
Constitution in the form of foundationalism. This article’s narrative of Israel’s
constitutional story throws new light on recent American debates regarding the
constitutionality of legislative entrenchment; the exploitation of comparative
constitutional law to decide one’s own constitutional dilemmas; and the legitimacy of
judicial constitution-making.
Table of Contents
INTRODUCTION............................................................................................................. 2
I. THE TRIGGER TO THE UNITED MIZRAHI BANK DECISION ............................................ 8
A. What led to the United Mizrahi Bank Case? .......................................................... 8
B. The Constitutional Status of "Basic Laws" in the Past......................................... 11
II. MONISM..................................................................................................................... 14
A. Shamgar’s Theory of the Unlimited Sovereignty of the Knesset........................... 14
B. In Support of Shamgar's Monist Theory ............................................................... 16
C. Is it Monism, after all? Or the Difficulties with Monism...................................... 27
III. DUALISM ..................................................................................................................... 30
A. Barak’s Constituent Authority Theory.................................................................. 30
B. Does the Much Desired Dualist Israeli Constitution Exist?................................. 34
C. The Great Controversy with Justice Cheshin's Dissenting Opinion..................... 45
IV. FOUNDATIONALISM ..................................................................................................... 50
A. The Missing Theory............................................................................................... 50
© Rivka Weill, Sui Generis? The Hybrid Israeli Constitutional Experience,
May 8, 2009, Working Paper, may be cited from www.ssrn.com
2
B. Historical Roots .................................................................................................... 52
C. Post United Mizrahi Bank: Movement for Quality Government Decision........... 57
D. Is Foundationalism a Fitting Ground for Israel's Developing Constitution? ...... 61
V. THE EMERGING HYBRID FORMAL ISRAELI CONSTITUTION ........................................... 65
INTRODUCTION
Judge Posner recently wrote in the New Republic:
[The now retired Chief Justice] Barak is John Marshall without a constitution to
expound… Israel does not have a constitution. It has "Basic Laws" passed by the
Knesset, Israel's parliament, which Barak has equated to a constitution by holding
that the Knesset cannot repeal them. That is an amazing idea…And only onequarter
of the Knesset's members voted for those laws!...1
Is this an accurate description of Israel's constitutional development?
We are all familiar with the history of the American Marbury v. Madison decision.2
In 1803, Chief Justice John Marshall declared that American courts have the power of
judicial review over primary legislation. Although the U.S. Constitution lacks an explicit
provision granting such power, Marshall pronounced that between these two alternatives
there was no middle ground. Either the Constitution was supreme and thus no regular
statute may contradict it, or a Constitution was a futile attempt on the part of the People
to limit the legislature.3
Marshall did have, however, an explicit supremacy clause in the
Constitution to rely on.4
Marshall was also a crafty politician. He used the power of
judicial review in the case to limit the scope of jurisdiction of the court. Thus, in the same
decision, he both granted the courts the power of judicial review while simultaneously
* Assistant Professor, Radzyner School of Law, Herzliya, Israel. J.S.D. Yale Law School. Please send
comments to rweill@idc.ac.il. I thank Bruce Ackerman, Aharon Barak, Arthur Jacobson, Roz Myers and
Assaf Jacob for their helpful comments. I also thank Liat Babluki, Tom Eanbal and Idan Riva for their
excellent research assistance. I was privileged to clerk for (retired) CJ Aharon Barak between 1995-1997,
including the time when the Israeli Marbury v. Madison case was decided (though I was not assigned to the
case).
1
Richard A. Posner, Enlightened Despot, THE NEW REPUBLIC, April 23, 2007, at 53 (book review)
[hereinafter Posner, Enlightened Despot]. See also RICHARD A. POSNER, HOW JUDGES THINK 362-68
(2008) (for a somewhat softer criticism, especially with regard to the entrenched nature of the Basic Laws).
For Israeli academia responses to Posner's criticism, see Barak Medina, Four Myths of Judicial Review: A
Response to Richard Posner's Criticism of Aharon Barak's Judicial Activism, 49 HARV. J. INT'L L. 1 (2007)
(hereinafter Medina, Four Myths) (attempting to rebut Posner's criticism); Hillel Sommer, Richard Posner
on Aharon Barak: The View From Abroad, 49 HAPRAKLIT 523 (2008) (praising Posner for inviting debate
on the subject).
2
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) [hereinafter Marbury].
3
Id. at 177.
4
U.S. CONST. Art. VI, cl.2: "This Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States,
shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding." In interpreting this clause, CJ Marshall
emphasized that the Constitution is "first mentioned" and only those laws "which shall be made in
pursuance of the Constitution, have that rank." He further stated that "the particular phraseology of the
Constitution…confirms and strengthens the principle…that a law repugnant to the Constitution is void; and
that courts, as well as other departments, are bound by that instrument." Marbury, supra note 2.
© Rivka Weill, Sui Generis? The Hybrid Israeli Constitutional Experience,
May 8, 2009, Working Paper, may be cited from www.ssrn.com
3
utilizing it to curtail the courts’ jurisdiction.5
This was a way to sweeten the poison of
judicial review power to make it more palatable to the other branches of government. The
decision seems outrageous when one considers that Marshall should have recused himself
in light of his own prior personal involvement and responsibility for the events leading to
the adjudication.6
Nonetheless, Marbury v. Madison is arguably the most important
decision ever given by the U.S. Supreme Court.7
By now, it is long settled that the
American courts have the power of judicial review over primary legislation.
The Israeli Supreme Court decision known as United Mizrahi Bank may be
considered Marbury’s equivalent, but it has not fared as well so far.8
It was given on
November 9, 1995, just five days after the assassination of Prime Minister Yitzak Rabin
by a Jewish terrorist student. Thus, the decision received scarce media coverage and
attracted mere passing attention by the public and politicians when originally given,
which was anticlimactic to the revolutionary nature of the decision.
Since the United Mizrahi Bank decision was given as recently as 1995, we do not
have the perspective of over two hundred years of history to comprehend its resounding
effects. Nonetheless, there is worldwide interest in understanding its implications on the
one hand and, on the other, not enough scholarship analyzing it.9
It has been suggested
that the United Mizrahi Bank Court invented a formal Constitution, as distinguished from
an unwritten or substantive one, where none existed.10
There have been extremely harsh
on-going exchanges between the Court and the Knesset (Israel’s legislature) over the
decision.11
Others believe it was the Knesset, rather than the Court, that initiated this
"constitutional revolution" by enacting "Basic Law: Human Dignity and Liberty" and
"Basic Law: Freedom of Occupation," both in 1992.12
The Court was thus only a humble
5
For discussion, see, e.g., Louise Weinberg, Our “Marbury,” 89 VA. L. REV. 1235, 1297-1341 (2003).
6
BRUCE ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS 14 (2005).
7
Winfield H. Rose, Marbury v. Madison: How John Marshall Changed History by Misquoting the
Constitution, 36 POL. SCI. AND POLITICS 209 (2003). See also WILLIAM E. NELSON, MARBURY V.
MADISON: THE ORIGINS AND LEGACY OF JUDICIAL REVIEW 1 (P. C. Hoffer & N.E.H. Hull eds., 2000).
8
CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Collective Village, 49 (4) P.D. 221 (1995) (Isr.)
[hereinafter United Mizrahi Bank]. It was partially translated in 31 ISR. L. REV. 764 (1997).
9
For the world wide interest in the decision, see, e.g., Aharon Barak, The Supreme Court 2001 Term:
Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 19
(2002) [hereinafter Barak, Judge on Judging]; ROBERT H. BORK, COERCING VIRTUE: THE WORLDWIDE
RULE OF JUDGES (2003); RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF
THE NEW CONSTITUTIONALISM (2004); NORMAN DORSEN ET AL. EDS., COMPARATIVE CONSTITUTIONALISM
103-13 (2003); Gary Jeffrey Jacobsohn, The Permeability of Constitutional Borders, 82 TEX. L. REV. 1763
(2003-04) [hereinafter Jacobsohn, Constitutional Borders].
10
Posner, Enlightened Despot, supra note 1, at 53. See also Ruth Gavison, The Constitutional Revolution--
A Reality or a Self-Fulfilling Prophecy, 28 MISHPATIM 21, 28-33, 110,123,132 (1997) [hereinafter Gavison,
Constitutional Revolution]; Joshua Segev, Who Needs a Constitution? In Defense of the Non-Decision
Constitution-Making Tactic in Israel, 70 ALB. L. REV. 409 (2007).
11
Yoav Dotan, Constitution to Israel? The Constitutional Dialog After “The Constitutional Revolution”,
28 MISHPATIM 149, 190-200 (1997). See also Menachem Hofnung, The Unintended Consequences of the
Unplanned Legislative Reform – Constitutional Politics in Israel, 44 AM. J. COMP. L 585, 597-99 (1996).
12
By constitutional revolution, I mean the two main accomplishments—the recognition of Basic Laws as
Israel's formal supreme Constitution and the exercise of judicial review over primary legislation—
occurring between 1992 and 1995.
© Rivka Weill, Sui Generis? The Hybrid Israeli Constitutional Experience,
May 8, 2009, Working Paper, may be cited from www.ssrn.com
4
servant obeying the Knesset’s will.13
Still others insist that nothing revolutionary has
happened in 1992 or 1995 and that we should not treat United Mizrahi Bank as a
threshold in Israel's constitutional development.14
Which of these is the truth?
The United Mizrahi Bank decision is hundreds of pages long.15
Since the Court did
not strike down any statute or provision thereof, it is all dicta, the equivalent of
Marshall’s wisdom in limiting the courts' jurisdiction.16
It contains a wealth of knowledge
that is extremely valuable to students of comparative constitutional law.
The Court decided three fundamental questions: Did the Knesset have the power to
create a Constitution for Israel? If so, did it exercise this authority when enacting the
"Basic Laws"?17
If so, do the "Basic Laws" give the courts judicial review power over
primary legislation? The first two questions may seem unusual. Usually, there is no doubt
whether a country has or lacks a formal supreme constitution.18
But, in Israel this was an
issue that needed to be decided by the Court. Only the third question is similar to the one
decided in Marbury.
13
See, e.g., David Kretzmer, The Path to Judicial Review in Human Rights Cases: From Bergman and Kol
Ha’am to Mizrachi Bank, 28 MISHPATIM 359, 382-85 (1997) (treating the "Basic Laws" of 1992 as an
expression of the Knesset’s will to constitutionally protect human rights and authorize judicial review).
14
See, e.g.,Yoseph M. Edrey, Constitutional Revolution?, 3(2) MISHPAT UMIMSHAL 453 (1996). Professor
Yoram Shachar frequently asserts this claim in scholarly discussions because he does not believe that there
were so far any substantial consequences to Israel's constitutional revolution. (I refer to Shacar's view with
his consent.)
15
With 127,950 words it is the second longest decision ever given by Israel’s Supreme Court according to
Guy Seidman and Hillel Sommer, The Israeli Supreme Court and the Disengagement Plan, 9 MISHPAT
UMIMSHAL 579, 593-94 n.65 (2006). Other decisions listed include the cases of Nazi war criminal John
“Ivan the Terrible” Demyanyuk and the Israeli government’s disengagement from Gaza. The extraordinary
length of a decision may indicate that the Court attempts to be persuasive when the case is the focal point
of a charged public debate or bears the potential to incur the wrath of other branches of government.
16
In fact, Justice Cheshin's dissenting opinion begins with his own analysis that the dispute among the
justices regarding the Knesset's Constituent Authority is all dicta. United Mizrahi Bank, supra note 8, at
471-72. See, e.g., Eli M. Salzberger, The Constituent Assembly in Israel, 3 MISHPAT UMIMSHAL 679, 696
(1996) [hereinafter Salzberger, Constituent Assembly]. For the difference between ratio and dicta, see
RUPERT CROSS & J.W. HARRIS, PRECEDENT IN ENGLISH LAW, 39-97 (4th ed., 1991). A student critique even
suggested that the Court did not have the relevant data necessary to assess whether the statute was indeed
constitutional. The Court barely discussed the factual data in the case. See Jonathan Ginat, Constitutional
Litigation and Empirical Data: Facts or Fiction, 14 BAR ILAN LAW STUDIES 209, 220-24 (1997).
17
Basic Laws are generally enacted by the Knesset via the same legislative process used to enact regular
laws. Generally what makes them “Basic” is that the Knesset grants them the title “Basic Law” without a
year mark. Their content usually deals with constitutional issues. For further discussion see Parts I.B., II, III
& IV.
18
United Mizrahi Bank, supra note 8, at 475 (Cheshin suggested that a judicial debate over the very
existence of a constitution is remarkably unusual). It should be emphasized that all countries obviously
have “unwritten” or substantive constitutions in the sense that they have statutes, judicial decisions, and
customs setting the rules of government. But, the United Mizrahi Bank controversy was exceptional in
having the Court decide that Israel had a formal Constitution.
© Rivka Weill, Sui Generis? The Hybrid Israeli Constitutional Experience,
May 8, 2009, Working Paper, may be cited from www.ssrn.com
5
There was no unanimity on the Court, though not for lack of trying.19
The Court was
bitterly divided on the question of whether the Knesset had the authority to enact a
Constitution for Israel and whether "Basic Laws" should be treated as comprising Israel’s
Constitution. Justice Cheshin, dissenting, answered “no” to both questions. This,
however, did not prevent him from recognizing the courts' power of judicial review over
primary legislation. In other words, for Cheshin, the courts may hold the power of
judicial review without a formal constitution to expound.20
Even the majority of the justices who believed that the Knesset had the authority to
enact a constitution could not agree on the constitutional theory justifying this authority.
The two main theories offered as an explanation of the Knesset’s constituent power were
monism, on the one hand, and dualism, on the other. By monism I mean a theory of
parliamentary or legislative sovereignty, as in the British tradition.21
By dualism I mean a
theory of popular sovereignty that differentiates between the People’s superior
constitutional enactments and their representatives’ regular inferior statutes, as in the
American tradition.22
Chief Justice Shamgar, who wrote his opinion in United Mizrahi Bank as retired CJ,
believed that the Knesset was sovereign and as such could entrench its legislation thus
creating a Constitution.23
Chief Justice Barak, the newly appointed CJ, believed that the
Knesset served the double function of a legislature and an ongoing Constituent Assembly
until the complete adoption of the Constitution.24
Each of them believed that the other
was utterly wrong in his theory of the Knesset’s constituent authority.25
Three justices
19
The importance of unanimity for enhancing the acceptability of the decision was expressed in Dennis J.
Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.
J. 1, 2 (1979): “The Unanimity of the court in Brown v Board of Education and Bolling v. Sharpe was
second in importance only to the decisions themselves.” See also Valerio Grementieri & Cornelius Joseph
Golden, Jr., The United Kingdom and the European Court of Justice: An Encounter between Common and
Civil Law Traditions, 21 AM. J. COMP. L. 664-90 (1973) (for discussion of the pros and cons of the
prohibition of the publication of dissenting opinions in the Civil Law tradition).
20
United Mizrahi Bank, supra note 8, at 511-12 (Justice Cheshin).
21
H.L.A. HART, THE CONCEPT OF LAW 74, 149 (2d ed., 1994). Monism has traditionally been understood
to require three conditions: that parliament may enact any statute except for restricting its successors, that
constitutional law is on par with regular law and no judicial review power over primary legislation is
granted to the courts. See ALBERT V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE
CONSTITUTION 39 (8th ed., 1915). However, there has been a relaxation of these requirements in the
twentieth century as further elaborated in Parts II & III.C. infra.
22
See, e.g., BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 160-229
(1992); BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1991) [hereinafter ACKERMAN,
FOUNDATIONS], BRUCE ACKERMAN: WE THE PEOPLE: TRANSFORMATIONS (1998) [hereinafter ACKERMAN,
TRANSFORMATIONS]. For elaborate description of dualism, see Part III infra.
23
United Mizrahi Bank, supra note 8, at 264-71, 283-94 (Shamgar). The Courts (Consolidated Version)
Act, 1984, S.H. 198, § 15 allows each retiring judge, within three months of his or her retirement, to write
opinions in cases that he or she heard while sitting on the bench.
24
Id. at 352-402 (Barak).
25
Id. at 287 (Shamgar wrote that he "bluntly" prefers his theory to Barak's Constituent Authority Theory).
AHARON BARAK, INTERPRETATION IN LAW: CONSTITUTIONAL INTERPRETATIONS 45 (1994) [hereinafter
BARAK, INTERPRETATION] (writing that a monist theory cannot provide a constitutional future for Israel).
© Rivka Weill, Sui Generis? The Hybrid Israeli Constitutional Experience,
May 8, 2009, Working Paper, may be cited from www.ssrn.com
6
concurred with Barak’s theory; three others believed it was unnecessary to decide
between the two theories.26
Thus, of a nine-member Court, eight believed that the Knesset had the authority to
enact a Constitution and that it has further exercised this authority when enacting
“Basic Laws.” One dissented, believing that the Knesset had no such constituent
authority and that Israel lacks a formal Constitution. Of the eight, four supported the
theory of the ongoing constituent authority of the Knesset, one supported the theory of
the Knesset’s self-entrenchment power, and three others remained undecided on the
precise theory that justifies this constituent power of the Knesset. Thus, there was no
majority opinion in favor of either the monist or dualist theory, only a plurality opinion in
favor of the latter.27
Why does this matter? It is extremely valuable to students of constitutional law
worldwide to study United Mizrahi Bank for it offers unique insights to the role of the
various branches of government in writing, adopting, and ratifying a Constitution. The
article contributes to the scarce literature on evolutionary models of constitution-
making28
and recent American debates regarding the constitutionality of legislative
entrenchment in monist as well as dualist constitutional systems.29
It may contribute to
the famous Scalia-Breyer debate on the desirability, as well as danger, in the use of
comparative constitutional law to decide one’s own constitutional dilemmas.30
This
article demonstrates that one of the potential downsides of employing comparative
constitutionalism to decide domestic constitutional dilemmas is that it can produce gaps
in legal reasoning when the foreign reasoning that is applied cannot be aligned with the
country’s historical development. The article may be of interest to anyone who wants to
better understand why the exercise of judicial review power over primary legislation is so
hotly debated in Israel.
26
Justices Dov Levin, Eliahu Matza and Itzhak Zamir concurred with Barak's Constituent Authority theory.
Justices Zvi Tal, Eliezer Goldberg, and Gabriel Bach were undecided regarding which of the two theories,
Shamgar's or Barak's, was the correct one.
27
For discussion of the effects of plurality opinions on later development of the law, see John F. Davis &
William L. Reynolds, Judicial Cripples: Plurality Opinions in the Supreme Court, 1974 DUKE L.J. 59
(1974); Note, Plurality Decisions and Judicial Decisionmaking, 94 HARV. L.REV. 1127 (1981).
28
"A systematic comparison of recent evolutionary and revolutionary exercises in constitutionalism should
be high on the agenda of future research." BRUCE ACKERMAN, THE FUTURE OF LIBERAL REVOLUTION 47
(1992) [hereinafter ACKERMAN, REVOLUTION].
29
See, e.g., Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 11 YALE L.J.
1665 (2002); John C. Roberts & Erwin Chemerinsky, Entrenchment of Ordinary Legislation: A Reply to
Professors Posner and Vermeule, 91 CAL. L. REV. 1773 (2003), John O. McGinnis & Michael B.
Rappaport, Symmetric Entrenchment: A Constitutional and Normative Theory, 89 VA. L. REV. 385
(2003)[hereinafter McGinnis & Rappaport, Symmetric Entrenchment].
30
See, e.g., Atkins v. Virginia, 536 U.S. 304, 347-48 (2002) (Scalia J., dissenting) ("[I]rrelevant are the
practices of the 'world community,' whose notions of justice are (thankfully) not always those of our
people."); Lawrence v. Texas, 539 U.S. 558 (2003) (Justice Kennedy cited decisions of the European Court
of Human Rights in support of the majority decision, while Justice Scalia, dissenting, responded that this
was "[d]angerous dicta." Id. at 598); Roper v. Simmons, 543 U.S. 551, 627 (2005) (Scalia, J., dissenting)
("To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned
decisionmaking, but sophistry…Either America's principles are its own, or they follow the world; one
cannot have it both ways."). For academic responses to this controversy, see, e.g., Jeremy Waldron,
Foreign Law and the Modern Ius Gentium, 119 HARV. L.REV. 129 (2005-06); Richard Posner, No Thanks,
We Already Have Our Own Laws, LEGAL AFFAIRS, July-Aug. 2004; Jacobsohn, Constitutional Borders,
supra note 9.
© Rivka Weill, Sui Generis? The Hybrid Israeli Constitutional Experience,
May 8, 2009, Working Paper, may be cited from www.ssrn.com
7
I will analyze the United Mizrahi Bank decision using three different models to
explain the decision: monism, as in the British tradition; dualism, as in the American
tradition; and foundationalism. By foundationalism, I mean a model that treats certain
issues as so fundamental as to be beyond the decision of even the People, as in the
German and Indian constitutional systems.31
This latter model was not explicitly
suggested by the justices in United Mizrahi Bank, but I contend that it is essential to
understand Israel's constitutional revolution. Surprisingly, although foundationalism was
not explicitly stated in the decision, it may actually provide the uniting theory for the
divergent judicial opinions. I will expose the strengths and weaknesses of each model as
an explanation for Israel’s constitutional development. It will thus enable the readers to
understand both what the Court has done and why it is so vigorously contested. To
evaluate the decision, the article also surveys some of the most important defining
judicial decisions in Israel's constitutional past. It is contended in this article that most
Israeli judicial revolutions, including with regard to standing, justiciability, judicial
review, and foundationalism, were done in dicta, thus, the Court was consciously playing
a policy-maker role rather than mere deciding “cases and controversies.”32
It may be that
the Court believed this judicial activism was necessary at the formation stage of the
Israeli young constitutional system.
It is important to understand the different theoretical bases possible for the Israeli
formal Constitution, protected by the Court through judicial review over primary
legislation, since it provides the various options available for Israel’s future constitutional
development. Depending on the theory one ascribes to Israel’s formal Constitution, future
constitutional debates woud be resolved differently, particularly on matters such as the
constitutionality of constitutional amendments; the status of statutes that were enacted in
breach of procedural self-entrenchment of the Knesset; the validity of entrenchment
found in regular statutes; and the implications of an express language violating rights
found in regular statutory provisions.
Part I describes the events that led to the United Mizrahi Bank decision. It attempts to
answer why Israel's constitutional revolution occurred in the 1990s. It further explains the
status of Israel's "Basic Laws" prior to the landmark decision, thus, enabling the reader to
understand the scope of the revolution. Part II analyzes the possibility of basing the
Israeli constitution on monism, as suggested by the (then retiring) CJ Shamgar in United
Mizrahi Bank. It explains both the strengths and weaknesses of such a monist thesis. Part
III discusses the possibility of grounding the Israeli constitution on the concept of
dualism, as suggested by the (then) CJ Barak in his United Mizrahi Bank opinion. It
questions whether such a dualist approach, although desirable, is truly available in the
context of Israel’s “Basic Laws.” It further analyzes the (then) justice Cheshin's
dissenting opinion and why it, too, is an imperfect basis for Israel's constitutional
development. The United Mizrahi Bank decision has thus left observers confused about
the theoretical bases underlying the development of the Israeli constitution. Part IV offers
an alternative theory of Israel's constitutional development in the form of
foundationalism. It discusses the historical roots of this basis, as well as post-United
31
ACKERMAN, FOUNDATIONS, supra note 22, at 10-16. See also infra Part IV.
32
Since the standing (anyone may petition) and justiciability (every issue is justiciable) judicial revolution
described in part IV.C. infra, it is questionable whether there is any practical requirement of "case and
controversy" in Israel as distinguished from the US.
© Rivka Weill, Sui Generis? The Hybrid Israeli Constitutional Experience,
May 8, 2009, Working Paper, may be cited from www.ssrn.com
8
Mizrahi Bank developments that have made this theory possible. But the fact that this
theory is available, both because it comports with the reasoning in United Mizrahi Bank
and it is supported by later cases, does not mean it is the best one. I explain why Israel
should resist the temptation to base its constitution on foundationalism, despite the seeds
already planted by the judiciary. Part V concludes by suggesting that Israel's constitution
is a hybrid 'Commonwealth constitution,' with mixed features from the various models
discussed throughout the article.33
It remarks on the various options available for Israel's
future constitutional development. The article may contribute an understanding of
evolutionary patterns of constitution-making to many constitutional systems. It is my
hope that it will attract the attention of both jurists and scholars of monist, dualist, and
foundationalist constitutional systems.
I. THE TRIGGER TO THE UNITED MIZRAHI BANK DECISION
Since its establishment sixty years ago, there has been a constant cry from some political
circles to adopt a formal Israeli constitution. The United Nations General Assembly
Resolution 181 of November 29, 1947, prescribed the adoption of a democratic
constitution by the Jewish State. The Israeli Declaration of Independence envisioned one.
The First Knesset was elected as a Constituent Assembly but never fulfilled its mandate.
Thus, the question arises: On what basis was the Israeli Supreme Court able in 1995 to
declare the existence of an Israeli formal Constitution? Where did it find one? This part
describes the historical events leading to the United Mizrahi Bank decision and explains
why the decision is so innovative when contrasted with the constitutional status of the
"Basic Laws" prior to the decision.
A. What led to the United Mizrahi Bank Case?
The United Mizrahi Bank decision is the first Israeli Supreme Court case to deal with the
constitutional ramifications of the enactment in 1992 of "Basic Law: Human Dignity and
Liberty" and "Basic Law: Freedom of Occupation." More specifically, it is the first
decision to deal with the question of whether, as a result of the enactment of these "Basic
Laws," the courts have the power of judicial review over primary legislation. The
enactment of these statutes was path-breaking in two respects: First, for the first time in
Israel’s history, the Knesset enacted "Basic Laws" dealing with individual rights. Until
their enactment, "Basic Laws" dealt only with the structure of government and division of
power between the different branches.34
This was not for lack of trying.35
The Knesset
33
For discussion of commonwealth hybrid constitutions with regard to Canada, New Zealand and United
Kingdom, see Stephan Gardbaum, The New Commonwealth Model of Constitutionalism, 49 AM. J. COMP.
L. 707 (1996).
34
Before 1992, the following Basic Laws were enacted: Basic Law: The Knesset, 1958, S.H. 69; Basic
Law: The People’s Lands, 1960, S.H. 56; Basic Law: The President of the State, 1964, S.H. 118; Basic
Law: The Government, 1968, S.H. 226; Basic Law: The State Economy, 1975, S.H. 207; Basic Law: The
Army, 1976, S.H. 154; Basic Law: Jerusalem the Capital of Israel, 1980, S.H. 186; Basic Law: The
Judiciary, 1984, S.H. 78; Basic Law: The State Comptroller, 1988, S.H. 30.
35
For a synopsis of the many attempts to enact an Israeli Bill of Rights before 1992, see AMNON
RUBINSTEIN & BARAK MEDINA, CONSTITUTIONAL LAW OF THE STATE OF ISRAEL 910-14 (5th ed. 1996);
Ruth Gavison, The Controversy Over Israel's Bill of Rights, 15 ISRAEL YEARBOOK OF HUMAN RIGHTS 113-
© Rivka Weill, Sui Generis? The Hybrid Israeli Constitutional Experience,
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9
was just unable to reach agreement regarding individual rights because of the cleavages
between Orthodox Jewish political parties and secular ones, and between Jewish and
Arab political parties.36
Thus, the Orthodox Jewish political parties treated with suspicion
such principles as equality, freedom of speech, freedom of movement within Israel, and
freedom of religion for fear that they would conflict with existing legislation that coerces
or imposes religious values on Jewish citizens or permanent residents.37
Moreover, many
of the members of the Orthodox Jewish political parties believed that Israel did not need
a formal constitution since Jewish religious law was or, more accurately, should be its
Constitution.38
The Arab minority, on the other hand, found it difficult, if not impossible,
to agree to the identity of Israel as a Jewish State.
Second, the 1992 "Basic Laws" contain provisions with substantive entrenchment of
the rights enumerated in them. By substantive entrenchment, I mean, that they set
substantive criteria that infringing statutes must fulfill. The "Basic Laws" require any
statute that infringes upon their provisions to pass muster under the following four-stage
substantive test: (1) The conflicting provision must be in a statute or authorized by a
statute; (2) the infringement must be compatible with the values of a Jewish and
democratic State; (3) it must be done for a proper purpose; and (4) it must be
proportional.39
Until then, "Basic Laws" sometimes included provisions dealing with
procedural entrenchment--that is they set a special amendment process, usually requiring
the affirmative consent of a specified supermajority of Members of Knesset (MKs) to
amend them.40
But they did not contain substantive entrenchment provisions on later
Knessets.41
Why did the Knesset finally succeed in 1992 in overcoming the stalemate regarding
the enactment of individual rights in "Basic Laws"? The enactment of the 1992 "Basic
Laws" was achieved only through a special process of piecemeal legislation.42
Until then,
every attempt to enact a Bill of Rights treated the Bill of Rights as one document. But the
initiators of the 1992 "Basic Laws," MK Professor Amnon Rubinstein chief among them,
understood that not only was the formal Israeli Constitution to be enacted in piecemeal
through the gradual enactment of "Basic Laws," but also its Bill of Rights could only be
achieved in stages.43
That is, only those rights that MKs could agree on were expressly
embodied in the new "Basic Laws." Thus, these "Basic Laws" intentionally do not
50 (1985); I. H. Klinghoffer, "The Bill of Rights--The Legislative Freeze" in KLINGHOFFER BOOK ON
PUBLIC LAW 137-39 (Itzhak Zamir ed., 1993)
36
See, e.g., Gavison, Constitutional Revolution, supra note 10, at 76-77 and n.112
37
See, e.g., DK (1950) 811-12, 1262.
38
Dalia Dorner, Does Israel Have a Constitution?, 43 ST. LOUIS L.J 1325, 1326 (1999). See also DK
(1950) 744, 808-11, 1263, 1269.
39
Basic Law: Human Dignity and Liberty, 1992, S.H. 150, § 8; Basic Law: Freedom of Occupation, 1992,
S.H. 114, § 4.
40
Basic Law: The Knesset, §§4 and 45; Basic Law: Jerusalem the Capital of Israel, § 7; Basic Law: The
State Economy, § 3b(c).
41
There were, however, substantive entrenchment provisions in regular statutes. For further discussion and
examples, see infra Part II.B.
42
RUBINSTEIN & MEDINA, supra note 35, at 26. See also Judith Karp, Basic Law: Human Dignity and
Liberty: A Biography of Power Struggles, 1 MISHPAT UMIMSHAL 323 (1993) [hereinafter Karp, Power
Struggles].
43
For a discussion of the Harrari Resolution by the First Knesset to enact the constitution in stalemates, see
infra Part I.B.
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10
include explicitly some of the most important individual rights enumerated in any
acceptable Bill of Rights in a democratic society, including rights of equality, freedom of
religion, freedom of speech and freedom of the press.44
The enactment of the 1992 "Basic Law: Human Dignity and Liberty" and "Basic
Law: Freedom of Occupation" led to the United Mizrahi Bank litigation. The appellants
challenged on constitutional grounds an amendment to a statute that was enacted one year
later, in 1993. The timing of the amendment was crucial, since "Basic Law: Human
Dignity and Liberty" is inferior even to regular statutes, in its de facto effects, as far as it
concerns the relationship between the "Basic Law" and prior legislation. The "Basic
Law" explicitly provides that any enactment preceding its own is protected from
constitutional challenge.45
Thus, it reverses the regular common law maxim that later
statutes prevail over earlier ones in the case of their conflict.46
But, the United Mizrahi
Bank case dealt with an amendment to a statute, and the amendment was enacted after
"Basic Law: Human Dignity and Liberty" and was thus not protected against
constitutional attack. In fact, the opposite was true, because "Basic Law: Human Dignity
and Liberty" contains a substantive entrenchment provision. In this sense, that "Basic
Law" again reverses the maxim that subsequent legislation trumps earlier ones. This time,
however, the "Basic Law" was made superior to regular legislation to the extent that it
concerned its relations with subsequent legislation.47
The challenged amendment was one that revised a statute, known as the “Gal statute”
after its initiator, ordering the abolition or reduction of debts of the Kibbutzim and
Moshavim to private creditors in an attempt to save them from total bankruptcy.48
The
creditors challenged the amendment's further infringement upon their property rights,
which were protected under "Basic Law: Human Dignity and Liberty."49
The court unanimously decided that the amendment conformed to the substantive
requirements of the "Basic Law" and thus passed constitutional muster. The Court,
therefore, could have avoided altogether dealing with the question of the constitutional
status of the "Basic Law" and its own judicial review power. But, in the longest dicta
ever written in Israel, the Court took on the question of whether it had any power of
judicial review over primary legislation.50
Except for Cheshin, the lone dissenter, all the
justices believed that judicial review power over primary legislation was possible only in
the context of expounding a Constitution. They, thus, believed that they had to first
address the question of whether Israel has a formal Constitution in the form of "Basic
44
See Karp, Power Struggles, supra note 42, at 326-28, 343-44; Hillel Sommer, The Non-enumerated
Rights: On the Scope of the Constitutional Revolution, 28 MISHPATIM 259, 268-71 (1997) [hereinafter
Sommer, Non-enumerated Rights]. This, however, did not prevent the Israeli Supreme Court from reading
these rights into the Basic Laws. See infra Part IV.
45
Basic Law: Human Dignity and Liberty, § 10.
46
Lex posterior derogat priori. The rationale behind the maxim is that the last will of the sovereign
prevails. BLACK'S LAW DICTIONARY 931 (8th ed., 2004).
47
It should be noted that since United Mizrahi Bank, the Israeli Supreme Court has decided that special
rules of interpretation should apply to the Basic Laws because they are of constitutional status. Thus, the
regular maxims of interpretation may not necessarily apply to them. HCJ 1384/98 Avni v. Prime Minister,
52(5) P.D. 206 (1998).
48
Arrangements for the Agricultural and Family Sectors Act, 1992, S.H.118.
49
The Gal Statute was amended by Arrangements for the Agricultural and Family Sectors Act, 1993, S.H.
178. Basic Law: Human Dignity and Liberty, § 3, prohibits infringement of a person's property.
50
Salzberger, Constituent Assembly, supra note 16, at 680, 683-84.
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11
Laws." Until the United Mizrahi Bank decision, there was no clear judicial answer to this
question.
B. The Constitutional Status of "Basic Laws" in the Past
To understand the United Mizrahi Bank decision, we need to review the constitutional
status of the "Basic Laws" prior to the decision. "Basic Laws" have been enacted in Israel
as part of a compromise, known as the Harrai Resolution, reached in the First Knesset.51
The First Knesset was chosen primarily to enact a Constitution.52
Its election campaigns
focused on various proposals to a Constitution advocated by the political parties.53
However, even during the election, it became clear that the Knesset would function also
as a regular legislative assembly.54
Thus, there was a unification of the different tasks,
legislative and constitutive, in one body, very much in conformity with the European
model of Constituent Assemblies, but deviating from the American model of separate
assemblies for each task.55
Originally, the Israeli Declaration of Independence envisioned
the American model.56
But, the break of the War of Independence postponed the election
to the Constituent Assembly from November 25, 1948, to January 25, 1949.57
Moetzet
Ha'am, which issued the Declaration of Independence and served as a temporary
legislative assembly without ever being formally elected, refused to prolong its legislative
role without a direct appeal to the People.58
Thus, it decided to dissolve and allow the
new Constituent Assembly to fulfill both legislative and constitutive functions.59
Contrary to expectations, the First Knesset could not agree on whether it wanted to
adopt a Constitution. Prime Minister David Ben-Gurion and the political governing party,
Mapai, believed that the British monist model of parliamentary sovereignty was the more
desirable model, while MK Menachem Begin supported the American model of a
51
Knesset Resolution from the 13th of June 1950, DK (1950).1743.
52
Yechiam Weitz, General Elections and Governmental Crises, 9 ISRAEL AT THE FIRST DECADE 10 (2001).
53
"The fact that the Constituent Assembly was elected for the purpose of enacting a constitution would
seem to vest that body with such authority by direct mandate from the people." Nimmer, The Uses of
Judicial Review in Israel's Quest for a Constitution, 70 COLUM. L. REV. 1217, 1239, n. 92 (1970). "Only in
this election was the constitutional issue brought to the voter decision as a matter of legal requirement."
United Mizrahi Bank, supra note 8, at 486 (Cheshin). See also DK (1950) 739-49; DK (1950) 804; DK
(1950) 826 (for MKs' discussion of the campaigns' promise to draft a Constitution).
54
The Provisional State Assembly (Moetzet Ha'am) enacted on January 13 the Transition to a Constituent
Assembly Act, 1949, stating that it would dissolve after the Constituent Assembly is elected and
assembled.
55
See Andrew Arato, Forms of Constitution Making and Theories of Democracy, 17 CARDOZO L. REV. 191
(1995) (discussing different models of constitution-making).
56
Israel's Declaration of Independence of May, 14, 1948, envisioned that Moetzet Ha'am will serve as
Israel's interim Parliament until elected and regular governmental bodies were created according to a
formal Constitution. The Declaration further envisioned that the Constitution would be drafted by an
elected Constituent Assembly. The Declaration stated a date of October 1, 1948, though it is unclear
whether the date refers to the time of election to the Constituent Assembly or to the time by which the
Constitution would be completed or even the time at which regular governmental bodies would be created.
See RUBINSTEIN & MEDINA, , 5th ed., vol. 1, supra note 35, at 50.
57
Weitz, supra note 52, at 10-12.
58
See Uri Yadin, The Transition to a Constituent Assembly Act, in IN MEMORIAM URI YADIN 79-82
(Aharon Barak & Tana Spanic eds., 1990) (a lecture given on the Israeli radio “Kol Israel” on January 17,
1949).
59
The Transition to a Constituent Assembly Act, 1949, §§ 1 and 3.
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supreme Constitution. Ben Gurion also argued that it was too early for Israel to adopt a
Constitution, when most of its target population was still in the Diaspora.60
Instead, the
First Knesset thus adopted the Harrari Resolution. According to the Resolution, the task
of proposing a Constitution was entrusted to a committee of the Knesset, which would
draft chapters of the Constitution that the Knesset would enact as "Basic Laws." When
the task is completed, all "Basic Laws" would be unified in one document to serve as
Israel’s Constitution.
As typical of compromises, everyone understood this resolution differently. The
status of the "Basic Laws" enacted prior to the completion of the Constitution was
unclear: In the interim period, would they be treated as regular laws or as supreme? How
would the Constitution be unified, by a special enactment process or technically? Could
others propose "Basic Laws"--as in fact happened with "Basic Law: Human Dignity and
Liberty" and "Basic Law: Freedom of Occupation," or only the committee? When would
the constitution be completed; did the First Knesset contemplate a deadline? These
ambiguities were intentionally left for future Knessets due to the First Knesset's failure to
reach consensus on the most fundamental question: whether a Constitution was at all
desired.61
The First Knesset did not enact any "Basic Laws." When later Knessets did so, they
used the same process as regular statutes. Sometimes, during the enactment process,
some MKs would emphasize the importance of "Basic Laws" both for their constitutional
content and as an implementation of the Harrari Resolution. But there was no greater
attendance of MKs than that typical of regular enactments. "Basic Laws" often passed
with the presence of only a few Members present.62
This was true even when the "Basic
Law" included provision ensuring procedural entrenchment, which would require a
supermajority of MKs for its repeal.63
It was also true of the enactment of "Basic Law:
Human Dignity and Liberty" and "Basic Law: Freedom of Occupation," although they
include substantive entrenchment regarding future legislation.64
The two main differences
between "Basic Laws" and regular statutes as far as their enactment was concerned were:
First, the title “Basic Law,” as opposed to mere “Law” without a year mark, separated the
former from regular legislation, placing it in a category of its own; second, the content of
"Basic Laws" usually dealt with constitutional as opposed to regular issues. Some regular
60
BENYAMIN NEUBERGER, THE CONSTITUTION DEBATE IN ISRAEL, GOVERNMENT AND POLITICS IN ISRAEL,
unit 3, at 25-37 (1990).
61
Id. at 38-40.
62
See infra Parts II & III.
63
Thus, for example, Basic Law: The Government, 1992, § 56, required the support of an absolute majority
of MKs for its amendment. This Basic Law, however, was enacted by a vote of 55 to 32 MKs in the last
reading. Thus, fewer MKs supported its enactment than the absolute majority that was required for its
amendment. DK (1992) 3862-63. Similarly, Basic Law: Freedom of Occupation passed in 1992 by a vote
of 23 to 0 MKs. DK (1992) 3392-93. However, section 5 included an entrenchment provision requiring an
absolute majority of MKs for its amendment. Moreover, even the enactment of Basic Law: Freedom of
Occupation of 1994 did not enjoy the requisite absolute majority support required for its amendment since
many of the most important provisions within it did not appear on first reading. See infra Part III.B.
64
See infra Part III.B.
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statutes, however, dealt with constitutional matters,65
while some "Basic Laws" dealt with
benign matters.66
Prior to the United Mizrahi Bank decision, there was also no clear judicial opinion on
the constitutional status of the "Basic Laws." The Court often spoke of the Knesset as
enjoying legislative sovereignty.67
It often treated the "Basic Laws" as enjoying the status
of regular laws. It allowed the Knesset to amend "Basic Laws" using regular statutes.68
It
applied to "Basic Laws" the general maxims of interpretation, so that a subsequent
regular statute could impliedly repeal an earlier "Basic Law."69
And, a specific earlier
regular statute would prevail over a later general "Basic Law."70
Only when the “Basic
Law” included a procedural entrenchment provision specifically requiring a
supermajority for its repeal would the Court impose this entrenchment provision on the
Knesset. This occurred only four times and only with regard to section 4 of "Basic Law:
The Knesset,"71
which entrenches Israel’s electoral system and especially the norm of
"equal elections," protecting both the right to equal vote (every eligible citizen has one
vote) and the right to equal access to power (every eligible citizen may be elected), unless
an absolute majority (61 out of 120) of MKs agrees to the repeal.72
In its decisions, the Court did not provide a coherent theory explaining why it could
impose this entrenchment provision on the Knesset. It did not even explain whether it
consciously treated this provision as entrenchment. It also did not coherently explain why
it could exercise judicial review over primary legislation in this context. Justice Landau,
deciding in 1969 the first case that exercised this power of judicial review over primary
legislation, explicitly declared that “it was not deciding the issue,”73
since the Attorney
General was not challenging the Court’s authority.74
Since this 1969 Bergman decision,
the Knesset adhered to the Court’s ruling probably because it, too, felt the need to respect
equal elections norms and not infringe upon them without the necessary support of an
65
Two notable examples are The Woman’s Equal Rights Law, 1951, S.H. 248 and The Law of Return,
1950, S.H. 159.
66
For detailed examples, see RUBINSTEIN & MEDINA, 5th ed., supra note 35, at 375-77.
67
See e.g. C.A. 228/63 Azuz v. Ezer, 17 P.D. 2541, 2547 (1963) (Isr.) (Berenzon Justice) ("There is no
doubt that according to Israel's constitutional law, the Knesset is sovereign and may enact any statute it
desires."); HCJ 112/77 Fogel v. Broadcasting Authority, 31 (3) P.D. 657, 664 (1977) (Isr.) (Deputy CJ
Landau) ("This is how we earned a quasi-judicial Bill of Rights…that is subordinate to the sovereign will
of the Knesset as a legislative assembly.").
68
See, e.g., HCJ 148/73 Kniel v. Minister of Justice, 27 (1) P.D. 794, 795 (1973) (Isr.); HCJ 60/77 Ressler
v. Chairman of the Central Elections to the Knesset Commission, 31 (2) P.D. 556 (1977) (Isr.).
69
Id.
70
Lex specialis derogat generali. CA 107/73 Negev v. State of Israel, 28 (1) P.D. 640, 642 (1974) (Isr.)
(Berenzon Justice).
71
HCJ 98/69 Bergman v. Minister of Finance and State Comptroller, 23 (1) P.D. 693 (1969) (Isr.)
[hereinafter Bergman] (an English translation is available in 4 ISR. L.REV. 559 (1969)); HCJ 246/81 Agudat
Derech Eretz v. Broadcasting Authority, 35(4) P.D. 1 (1981) (Isr.) [hereinafter Agudat Derech Eretz]; HCJ
141/82 Rubinstein M.K. v. Chairman of the Knesset, 37(3) P.D. 141 (1983) (Isr.); HCJ 172, 142/89 Laor
Movement v. Speaker of the Knesset, 44(3) P.D. 529 (1990) (Isr.) [hereinafter Laor Movement].
72
The section is cited infra Part II.B.
73
Bergman, supra note 71, at 696. But see further discussion infra Part II.B.
74
For Justice Landau’s view of his Bergman decision, and his critique of its use in United Mizrahi Bank,
see Moshe Landau, The Supreme Court as Constitution Maker for Israel, 3 MISHPAT UMIMSHAL 697, 699-
700 (1996) [hereinafter Landau, Constitution Maker].
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14
absolute majority of MKs.75
Thus, prior to the United Mizrahi Bank decision, there was
no real judicial or legislative discussion of the Court’s scope of judicial review authority
over primary legislation.
In United Mizrahi Bank, the justices seized upon the opportunity to clarify once and
for all the status of the "Basic Laws," as well as their own judicial review power. As
discussed above, the justices regarded the enactment of the two "Basic Laws" dealing
with individual rights as a "constitutional revolution,"76
as it was the first time in Israel’s
history that "Basic Laws" dealt exclusively with individual rights. Also for the first time,
"Basic Laws" included substantive, not just procedural, entrenchment. Even prior to
United Mizrahi Bank, the justices, especially Barak, publicly spoke in speeches and
scholarly work of the constitutional revolution that occurred with these 1992 “Basic
Laws.”77
But, Barak spoke of a constitutional revolution that had occurred quietly,
without anyone taking notice.78
II. MONISM
Shamgar suggested in United Mizrahi Bank that Israel's "Basic Laws" were its formal
supreme Constitution.79
The Knesset had an unlimited sovereign authority, which it
exercised by enacting "Basic Laws" that serve as Israel's constitution. In fact, Shamgar
wrote, even the British people understand that monism enables constitution-making. But
aren't parliamentary sovereignty and a supreme constitution contradictory terms? This
part discusses this seeming paradox, analyzing both what can be said in favor of
Shamgar's thesis, as well as its limitations in explaining Israel's constitutional
development.
A. Shamgar’s Theory of the Unlimited Sovereignty of the Knesset
The retiring CJ Shamgar based the Knesset’s constituent authority on the theory of
monism. The Knesset was sovereign and as such could entrench its enactments, thus,
creating a Constitution.80
He named his theory “the unlimited sovereignty of the
Knesset,”81
though in essence he was advancing the theory of “the limited sovereignty of
75
For the Knesset's response to the court's rulings, see infra Part II.B.
76
Barak, more than any other speaker, is identified with coining the term “constitutional revolution” to
describe the enactment of the 1992 "Basic Laws," Aharon Barak, “The Constitutional Revolution:
Protected Human Rights,” 1 MISHPAT UMIMSHAL 9, 9-13 (1992) [hereinafter Barak, Constitutional
Revolution]. However, he attributes the term to Professor Claud Klein. See Aharon Barak, The
Constitutional Revolution-12th Anniversary, 1 LAW & BUSINESS 3, 5 (2004) [hereinafter Barak, 12th
Anniversary]. The (then) Minister of Justice, MK Dan Meridor, was also among the firsts to use the term.
See Barak, Constitutional Revolution, id., at 12-13.
77
Id. See also BARAK, INTERPRETATION, supra note 25, at 29, 61.
78
See Rivka Weill, Shouldn’t We Seek the People’s Consent? On the Nexus Between the Procedures of
Adoption and Amendment of Israel’s Constitution, 10 MISHPAT UMIMSHAL 449, 453 n.14 (2007)
[hereinafter Weill, the People's Consent] (citing Barak's speech of November 20, 1994 at an annual
conference for Accounting).
79
But see infra note 167 and accompanying text regarding the question whether Shamgar treats all Basic
Laws or just those enacted in 1992 as supreme.
80
United Mizrahi Bank, supra note 8, at 288-94.
81
Id. at 283-86.
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the Knesset” through its own enactment of a Constitution. Shamgar followed H.L.A. Hart
in arguing that two concepts of sovereignty were possible: the first was that of a
sovereign that could not restrict itself; the other was a sovereign that could restrict itself,
but once restricted, it was no longer sovereign with respect to the issue entrenched. In
Hart’s words:
Under the influence of the Austinian doctrine that law is essentially the product of
a legally untrammeled will, older constitutional theorists wrote as if it was a
logical necessity that there should be a legislature which was sovereign, in the
sense that it is free, at every moment of its existence as a continuing body, not
only from legal limitations imposed ab extra, but also from its own prior
legislation. That parliament is sovereign in this sense may now be regarded as
established, and the principle that no earlier Parliament can preclude its
‘successors’ from repealing its legislation constitutes part of the ultimate rule of
recognition used by the courts in identifying valid rules of law. It is, however,
important to see that no necessity of logic, still less of nature, dictates that there
should be such a Parliament; it is only one arrangement among others, equally
conceivable, which has come to be accepted with us as the criterion of legal
validity. Among these others is another principle which might equally well,
perhaps better, deserve the name of ‘sovereignty.’ This is the principle that
Parliament should not be incapable of limiting irrevocably the legislative
competence of its successors but, on the contrary, should have this wider selflimiting
power. Parliament would then at least once in its history be capable of
exercising an even larger sphere of legislative competence than the accepted
established doctrine allows it. The requirement that at every moment of its
existence Parliament should be free from legal limitations including even those
imposed by itself is, after all, only one interpretation of the ambiguous idea of
legal omnipotence.82
This constitutional paradox is very similar to the theological one raised with respect
to God: Could God create a stone it could not raise? If it couldn’t, it was never almighty.
If it could, once done, it was no longer almighty.83
Shamgar stated that the second
concept of sovereignty better portrayed the Knesset's power. In other words, the
sovereignty of the Knesset implied that it could entrench its enactments thus restricting
its sovereignty with respect to the future. For Shamgar, this was in fact Israel’s ultimate
rule of recognition.84
Shamgar further explained that, just as the Knesset has the power to create
administrative rules that are inferior to regular enactments (i.e., internal procedural rules
for conducting its proceedings), so too does it enjoy the power to create "Basic Laws"
that are superior to regular statutes. As part of its sovereignty, it was up to the Knesset to
determine the constitutional status of its enactment. Shamgar thus believed that a
82
HART, supra note 21, at 149.
83
See PETER SUBER, THE PARADOX OF SELF-AMENDMENT 32 (1990).
84
“The rule of recognition providing the criteria by which the validity of other rules of the system is
assessed is in an important sense…an ultimate rule: and where, as is usual, there are several criteria ranked
in order of relative subordination and primacy one of them is supreme.” HART, supra note 21, at 102.
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16
hierarchy between norms is based on a hierarchy between the authorities creating the
norms, but that the same governmental branch may exercise different hierarchical
authorities.85
Shamgar believed that the above-stated theory of "the unlimited sovereignty of the
Knesset" aligns with Israel’s constitutional history. It gives meaning to the Harrari
Resolution and the enactment of "Basic Laws" that followed it. He believed that through
general elections the People granted the Knesset plenary power to enact both regular and
constitutional law. The Knesset was, in fact, a "continuing body" enjoying the same
authority as the First Knesset to enact a Constitution until the completion of its task.86
According to Shamgar, this "unlimited sovereignty" theory also granted legitimacy to
the Court’s exercise of judicial review over primary legislation. The Court was enforcing
the entrenchment that the Knesset imposed upon itself. Shamgar further stated that this is
in fact how the Court understood its own authority in the past when it demanded that the
Knesset either abide to an “equal elections” norm or infringe upon it through legislation
that enjoyed the support of an absolute majority of MKs. Either way, the Knesset was
fulfilling the requirements of the procedural entrenchment provision embodied in section
4 of "Basic Law: The Knesset." 87
Shamgar further believed that this theory was consistent with the British
constitutional development in the last decades. Dicey’s theory of parliamentary
sovereignty was no longer applicable even in Britain. According to the traditional
understanding of Dicey, following Blackstone, parliamentary sovereignty meant that no
legislature could be more sovereign than its successors and thus entrench its enactments.
Rather constitutional law was on the same footing as regular law, and no judicial review
power was possible.88
But Shamgar suggested that, after Britain joined the European
Union, or the European Community as it was then known, British judges did not apply
statutes that conflicted with the superiority of Community law. By Parliament’s own
decision, its sovereignty was curtailed.89
Shamgar warned, however, that this entrenchment power of the Israeli legislature was
not unlimited. Rather, he suggested that it was subject to judicial limits regarding the
scope and nature of entrenchment. Not every supermajority requirement will be valid.
Sometimes, they may be too restrictive of democratic self-government. Not every subject
may be entrenched either. Constitutional issues may be entrenched, but, as to others, it
was unclear.90
Shamgar did not offer a theory to justify the “inherent” limits on the
entrenchment power, leaving it to be elaborated by future court decisions.91
B. In Support of Shamgar's Monist Theory
85
United Mizrahi Bank, supra note 8, at 267-70.
86
Id. at 278-94. The Transition to the Second Knesset Act, 1951, S.H. 104, § 5, provided that "the Second
Knesset and its members will enjoy the same authorities, rights and duties that the First Knesset and its
members enjoyed." Section 10 applied this statute also on future Knessets. Shamgar thus understood these
sections as manifesting that every Knesset continued to enjoy constitutive authority like the First Knesset.
United Mizrahi Bank, supra note 8, at 281-83.
87
United Mizrahi Bank, supra note 8, at 292-93. See also discussion of Bergman, infra Part II.B.
88
See, e.g., DICEY, supra note 21, at 39.
89
United Mizrahi Bank, supra note 8, at 291-92.
90
Id. at 293.
91
For a theory that might justify such limits, see infra part IV.
© Rivka Weill, Sui Generis? The Hybrid Israeli Constitutional Experience,
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1. Political Actors’ Understanding
Prima facie, Shamgar's monist theory is deeply rooted in Israel's constitutional history.
The young Zionist State was established on the remains of the British Mandate, its
immediate predecessor.92
To avoid legal chaos, the new State adopted the law by statute
as it existed at the time of the State's founding, but with the necessary implied alterations
resulting from its establishment.93
That law included British judicial decisions that served
as precedents for the new State.94
In fact, in the first years of its establishment, the British
legal system, more than any other system, influenced the new Israeli courts'
jurisprudence. The judges often cited British cases for support and inspiration when
making new decisions.95
Also, many of the judges were educated in the British
tradition.96
Mapai, the only political party to head the Israeli government from 1948 to
1977, and its leader David Ben Gurion were strong advocates of the British legal tradition
as well.97
Mapai was also the party in control of the majority in the Knesset.98
Thus, all
three branches of government (legislative, executive and judicial) treated the British legal
tradition with veneration and looked to it for guidance.
In the Knesset, members often spoke of the Knesset as sovereign and entitled to enact
any law. Even when enacting “Basic Laws,” members emphasized that the Knesset was
enacting them as an exercise of its sovereignty.99
The Knesset did not differentiate
between the enactment of regular and constitutional statutes. Rather, both were enacted
via the same legislative process of three readings. There were no more MKs present when
92
Daniel Friedman, Infusion of the Common Law into the Legal System of Israel, 10 ISR.L.R. 324 (1975).
93
Law and Administration Ordinance, 1948, 1 S.H. 7, § 11.
94
See Friedman, supra note 92; Aharon Barak, The Israeli Legal System--Tradition and Culture, 40
HAPRAKLIT 179, 202-05 (1992).
95
In 1957, the primacy of British citations reached a peak with 40% of citations in Israeli Supreme Court
decisions being of British origin. This percentage declined gradually until circa 1980 with no particular
identifiable reason according to Yoram Shachar, Ron Harris & Meron Gross, Citation Practices of the
Supreme Court, Quantitative Analyses, 27 MISHPATIM 119, 152, 157-59 (1996).
96
Of the Supreme Court justices serving in the years 1948-1980, 20% were educated in England, 20% were
educated in Israel, and 32% were educated in Germany. See ELYAKIM RUBINSTEIN, JUDGES OF THE LAND
142 (1980). For the ramifications of these demographics, see Oz-Salzberger Fania, & Eli Salzberger, The
Secret German Sources of the Israeli Supreme Court, 3 ISRAEL STUDIES 159, 185 (1998) (arguing that
Israel's "German" Supreme Court judges were "Anglophilians" and that "the British and American legacy
dominates the Israeli legal system." Nonetheless, the "Israeli judiciary…created a shared heritage of
liberalism, which incorporated both Central-European and Anglo-American elements.")
97
See Shlomo Aronson, David Ben-Gurion and the British Constitutional Model, 3 ISRAEL STUDIES 193-
214 (1998) (discussing the origins and effects of Ben-Gurion’s disposition towards the British legal
tradition). See also discussion supra Part I.B.
98
Israel has a parliamentary British style model of government under which the elections to the Knesset
also determine the identity of the government. The president (fulfilling mainly a symbolic role) assigns the
task of establishing a government to a Knesset Member that enjoys the support of a majority in the Knesset.
See Basic Law: The Government, § 7. Since the government needs the confidence of the Knesset to rule, it
is composed of representatives of political parties that enjoy a majority of MKs. Id. § 3.
99
See, e.g., United Mizrahi Bank, supra note 8, at 375, 496 (citing MKs’ speeches in the Knesset). In fact,
in the first five editions of the classic book on Israel's constitutional law, the Knesset was portrayed as
sovereign. The fifth edition was published in 1996 after the Israeli constitutional revolution, but
nonetheless chapter 11 was entitled "the sovereignty of the Knesset and its limits." RUBINSTEIN & MEDINA,
5th ed., vol. 1, supra note 35, at 409.
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"Basic Laws" were enacted than usual.100
Further, the Knesset placed "Basic Laws" that
were supposedly of constitutional nature on the same footing as regular statutes. Thus,
the Knesset amended "Basic Laws" using regular statutes as well. Further, constitutional
matters were enacted in statutes entitled mere laws and not just in "Basic Laws." Some of
the provisions of "Basic Laws" dealt with benign matters.101
Placing constitutional
statutes on par with regular statutes is one of the main characteristics of parliamentary
sovereignty in the Diceyan tradition.102
The Court, too, often decided cases on the assumption that the Knesset was
sovereign.103
As far as possible, it would interpret statutes in conformity with basic
individual rights. The Court would infer in every statute a general purpose to protect
individual rights, in addition to its specific purpose. But, when such an interpretation was
not possible, the statute would prevail over individual rights that enjoyed the status of
mere judge-made common law rights.104
This did not prevent the judges, however, from
interpreting statutes in very creative ways and against legislative intent in an attempt to
respect individual rights.105
In that sense, prior to the United Mizrahi Bank decision,
Israel at least had an interpretive constitution. That is, it had a common law constitution
with interpretive force when construing statutes.106
This kind of a constitution may align
with the traditional theory of legislative sovereignty.107
Neither did the Court treat "Basic Laws" per "Basic Laws" as supreme. In the Court's
jurisprudence, it was possible for later regular statutes to both prevail over earlier "Basic
Laws" and even impliedly repeal them.108
Thus, there was no formal constitution
supreme over regular enactments, but rather all legislation enjoyed similar status as
characteristic of a system based on the tradition of parliamentary sovereignty.
Both the Knesset and the Court, however, treated the Knesset as enjoying selfentrenchment
power--that is, the power to entrench its enactments against repeal by a
simple, random majority of MKs present. The Knesset utilized this power when enacting
statutes that included procedural or substantive entrenchment provisions. It primarily
exercised this entrenchment power to protect against random amendment of some of the
provisions of "Basic Laws."109
But not all "Basic Laws" were entrenched. In fact, "Basic
Law: Human Dignity and Liberty" lacks procedural, though not substantive,
entrenchment. Its proponents have tried to include a provision requiring an absolute
majority of MKs for its amendment, but their proposal was one vote short of majority
support.110
Nor are entrenchment provisions unique to "Basic Laws," but rather may be found in
regular enactments as well. Thus, the Knesset used entrenchment in some statutes
100
See infra Part III.B.
101
For support, see supra Part I.B.
102
DICEY, supra note 88, at 39. See also supra note 21.
103
For support, see supra Part I.B.
104
See infra Part IV.
105
RUBINSTEIN & MEDINA, supra note 35, at 68.
106
Gardbaum, supra note 33, at 728 (using the expression “interpretive" bill of rights with respect to New
Zealand).
107
For recent British debates regarding the compatibility of purposive interpretation and parliamentary
sovereignty, see J.W.F. ALLISON, THE ENGLISH HISTORICAL CONSTITUTION 186-236 (2007).
108
For support see supra Part I.B.
109
For examples, see supra note 40.
110
For the story behind the scenes, see infra note 240 and accompanying text.
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dealing with economic matters when it wanted to credibly signal to the public its
commitment to a certain economic policy.111
It also attempted to entrench some of its
statutes dealing with the territory of the Israeli State and its borders.112
The Knesset did
not treat this self-entrenchment power as unique to constitutional matters. Prima facie,
this self-entrenchment power seems to support Shamgar's theory of a sovereign Knesset
empowered to entrench its enactments, thus restricting its sovereignty.
Procedural entrenchment provisions usually did not exceed the requirement that a
statute be amended by the support of an absolute majority of MKs.113
One may even
argue that such a requirement is not true entrenchment, but merely a demand that MKs be
present when enacting certain policies, i.e., a form of quorum requirement.114
Usually, in
the absence of entrenchment provisions, the Knesset has no quorum requirements, and a
statute may be enacted with the slimmest presence of MKs.115
Although absolute
majority requirement was the prevalent procedural entrenchment form, exceptions may
be found, including entrenchment provisions requiring the consent of two-thirds of MKs
(80 of 120).116
Surprisingly, often when the Knesset exercised its entrenchment power, it enacted
entrenchment provisions with simple random majority rather than having the support of
the supermajority required to undo the entrenchment.117
This necessarily meant that the
Knesset that enacted the entrenchment provision enjoyed greater authority than any
subsequent Knesset that would attempt to repeal it, assuming that the entrenchment was
valid and applicable.
Prior to the enactment of the 1992 "Basic Laws," substantive entrenchment existed
only in a few regular statutes. Usually, substantive entrenchment required an explicit
amendment of the provision at stake.118
In other words, substantive entrenchment
111
The Protection of the Israeli Public Investment in Financial Assets Act, 1984, S.H. 178, § 3, requires an
absolute majority of MKs for its amendment. This provision was enacted to signal to the public that the
government would not unilaterally alter the conditions of financial instruments such as state bonds. Until
1995, there was also a procedural entrenchment provision in section 45b of The Bank of Israel Act, 1954,
S.H. 192 (inserted by amendment no. 15 enacted in 1985) requiring an absolute majority of MKs to amend
sec. 45a. The entrenchment aimed at restricting the government's authority to lend money from the Central
Bank. The provision intended to limit governmental increase of the amount of money available in the
market.
112
For example, Jerusalem's territory may not be relinquished but by amendment of Basic Law: Jerusalem
the Capital of Israel, which requires the support of an absolute majority of MKs. § 7.
A government's decision to relinquish territory that is officially part of Israel's territory is subject to
Knesset's authorization by an absolute majority vote. The Law and Administration (Relinquishment of the
Applicability of Law, Jurisdiction and Administration) Act, 1999, S.H. 86, § 2. This section however is not
itself entrenched and may thus be amended by regular majority vote. HCJ 1169/07 Rabes v. Israel's
Knesset (unpublished yet).
113
This is true of “Basic Law: Freedom of Occupation,” § 7 (entrenching the entire “Basic Law”); “Basic
Law: Jerusalem The Capital of Israel,” § 7; “Basic Law: The Government,” 2001, § 44 (entrenching the
entire “Basic Law”); “Basic Law: The Knesset,” § 4; “Basic Law: State Economy,” §3b(c).
114
United Mizrahi Bank, supra note 8, at 538 (Cheshin).
115
“Basic Law: The Knesset,” § 25; Knesset's Rules of Procedure, § 22.
116
Thus, for example, “Basic Law: The Knesset,” § 45 states: "Section 44, or this section, shall not be
varied save by a majority of eighty members of the Knesset."
117
See discussion supra note 63 and accompanying text.
118
The Woman's Equal Rights Law, 1951, S.H. 248, § 1a; The Budget Principles Law, 1985, S.H. 1139, §
3a; Commodities and Services (Control) Law, 1957, S.H. 24, § 46(b). For decisions interpreting these
substantive entrenchment provisions as requiring an explicit repeal, see, e.g,. HCJ 104/87 Nevo v. National
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(merely) reversed the regular interpretation maxim that a later statute may be impliedly
repealed by an earlier statute.119
2. The Bergman Decision
What was the force of the entrenchment provisions? Did the Court impose the
entrenchment provisions against a noncompliant Knesset attempting to amend an
entrenched provision without the necessary majority required? Prior to United Mizrahi
Bank, only four times did the Court impose an entrenchment provision against a
noncompliant Knesset. On all four occasions, the provision was section 4 of “Basic Law:
The Knesset,” which defines the nature of the electoral system in Israel, as follows:
The Knesset shall be elected by general, national, direct, equal, secret and
proportional elections, in accordance with the Knesset Election Law; This section
shall not be varied save by a majority of Members of Knesset.120
In all four times, the attempted infringement was upon the norm of equal elections
that serves at the heart of any fair elections in a democratic society. Each time, the Court
required the Knesset to either amend the law in a way that would respect equal elections
norms or reenact the infringement with the necessary support of an absolute majority of
MKs.121
The first decision on this topic was Bergman, given in 1969.122
For its pioneering
status, Justice Zamir, in United Mizrahi Bank, treated Bergman as a precedent for the
existence of judicial review power over primary legislation, thereby anchoring the timing
of the "constitutional revolution" with the Bergman, rather than United Mizrahi Bank,
decision.123
Is this treatment of the Bergman decision justified?
Dr. Bergman was a private Tel-Aviv attorney. He appealed to the Israeli Supreme
Court, which was sitting as a High Court of Justice, arguing against the validity of a 1969
finance law that granted public funding for the (then) upcoming general elections.124
He
claimed, inter alia, that the finance law treated unequally the political parties competing
at election, because it provided public funding only to political parties that were already
represented in the outgoing Knesset. It thus discriminated against new political parties.
As such, the finance statute violated "equal elections" norms guaranteed by section 4 of
"Basic Law: The Knesset" without enjoying the support of a “majority” of MKs during
Labor Court, 44 (4) P.D. 749, 764 (1990) (Isr.), HCJ 256/88 Medinvest Herzliya Medical Center v. CEO of
Minister of Health, 44 (1) P.D. 19 (1989) (Isr.), HCJ 1438/98 Conservative Movement v. Minister of
Religions, 53(5) P.D. 337, 385-88 (Isr.) (Cheshin, J.). For discussion of explicit repeal requirements, see
infra Part III.C.
119
For the rationale of this maxim, see Karen Petroski, Retheorizing the Presumption against Implied
Repeals, 92 CALIF. L.REV. 487 (2004).
120
See http://www.knesset.gov.il/laws/special/eng/basic2_eng.htm.
121
See supra note 71 citing all four cases.
122
Bergman, supra note 71.
123
United Mizrahi Bank, supra note 8, at 468 (Zamir).
124
Elections to the Knesset and Local Authorities in the year 5730 (Financing, Limitation of Expenses and
Auditing) Law, 1969, S.H. 48 [hereinafter finance Act or law].
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its enactment.125
Bergman sought and won an injunction to prevent the execution of the
finance law.
The Bergman decision is six-pages long, which stands in sharp contrast to the
lengthiness of the United Mizrahi Bank decision. The opinion of the Court is laconic and
covers more than it reveals. Although the Court ordered the legislature to either reenact
the finance law in a way that aligns with equal elections norms or reenact the
infringement with the necessary majority, it did not explain why, if at all, it has the power
of judicial review over primary legislation. The (then) Attorney General Meir Shamgar
did not get a chance to argue against the Court’s judicial review authority. Shamgar was
so convinced of winning the case that he did not bother to argue against the Court’s
judicial review authority. Rather, he requested the Court allow him to argue against such
authority if it became relevant.126
His request was de facto denied, without reasoning,
probably due to the urgency of deciding the case near election time.127
Later, the
Bergman decision would serve as precedent for the Court’s judicial review power. But
what theory should be attributed to it? In other words, how could this decision be
generalized and serve as future precedent? Based on Bergman, when, if at all, was
judicial review over primary legislation justified? Does it align with the monist theory
suggested by Shamgar in United Mizrahi Bank?
At least, six different theories may be offered in explanation of the Court’s decision
in Bergman. Each suggesting a different scope of the Court’s judicial review power. The
first is that all "Basic Laws" were supreme and should be treated as part of Israel’s formal
Constitution. Thus, any regular statute, such as the finance law at stake, that infringes
upon "Basic Laws" provisions must pass constitutional muster, which the finance law
failed to do because it lacked majority support. But, while this theory may have been
plausible at the time the Bergman case was decided, it did not align with later Court
decisions. Later decisions did not treat "Basic Laws" per "Basic Laws" as supreme, as
noted above.128
Thus, this is not the best available theory to explain the Bergman
decision.129
A second possible theory is that what counts is entrenchment, not "Basic Laws." In
other words, when a later statute conflicts with an entrenched provision of an earlier
statute, whether the entrenchment appears in a "Basic Law" or in a regular statute, the
entrenched provision prevails. Thus, the conflicting statute must fulfill the requirements
of the entrenchment to survive judicial scrutiny. Since the finance law at stake in
Bergman violated equal elections norms without the majority support required by the
entrenched provision of section 4 of "Basic Law: The Knesset," it failed scrutiny. This
entrenchment theory aligns with the Bergman Court’s proposed remedy: to reenact the
finance Act with the support of the necessary majority. 130
125
The stated finance Act passed first reading by a majority of 24 to 2. The Knesset's records of third
reading merely state that the law was "adopted," without recording the count of the votes. The Petitioner
argued that this session too was not attended by a majority of MKs, and the Attorney-General did not
dispute that. Bergman, supra note 71, at 696.
126
Id. at 696.
127
Bergman petitioned the Court on April 30 and the decision was given on March 7, 1969. Bergman,
supra note 71. The elections were held on October 28, 1969.
128
See discussion supra Part I.B.
129
"Best" in the Dworkian sense, see RONALD DWORKIN, LAW'S EMPIRE 227-28 (1986).
130
For literature on the legislative self-entrenchment power, see supra note 29.
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It should be noted, however, that it is not at all clear whether the finance law at stake
in Bergman conflicted with section 4 of "Basic Law: The Knesset" in the following
sense: The wording of section 4 seems to suggest that only amendment, not infringement,
of section 4 would require the support of an absolute majority. The finance law in no way
attempted to redefine equal elections norms, but rather infringed upon it in a specific
election. The Bergman Court was not aware of the distinction between infringement and
amendment existing in constitutional jurisprudence and thus applied section 4 also to the
case at hand. This distinction between amendment and infringement is not made explicit
in Israel's constitutional jurisprudence until United Mizrahi Bank.131
In fact, the
legislature was made aware of this distinction only by (the then Deputy CJ) Barak's letter
to the Chairman of the Constitution, Legislation and Justice Committee of the Knesset of
January 11, 1994, responding to the Knesset's draft "Basic Law: Freedom of Occupation
of 1994," which replaced the 1992 version.132
Since the Bergman decision, however,
section 4 of "Basic Law: The Knesset" is interpreted uniquely so that a majority is
required for both amendment and infringement. In other words, “amendment” includes
infringement for section 4 and only section 4.133
This is a manifestation of how sporadic
the Israeli constitutional development has been.
The entrenchment theory assumes that what counts is solely entrenchment, not the
constitutional status of the enactment that includes the entrenchment.134
However, it is an
open question whether the Israeli Supreme Court would have reached the same result of
Bergman were the entrenchment present in a regular statute, as opposed to a "Basic
Law." Although the Knesset has entrenched both "Basic Laws" and regular statutes, we
have no legal case as of yet dealing with an infringement of procedural entrenchment
provisions in regular statutes. The Court did apply substantive entrenchment provisions in
regular statutes by requiring that a later statute infringing upon them do so explicitly,
rather than implicitly.135
The theory of entrenchment, therefore, may explain the Bergman
decision.
A third plausible theory is that only entrenched "Basic Laws" prevail over later
conflicting regular statutes. In other words, the combination of a “Basic Law” and an
entrenchment provision is necessary to overcome the maxim that later statutes prevail
over earlier ones.136
In fact, prior to United Mizrahi Bank, the Court de facto applied the
Bergman precedent only in three cases, all of which dealt with the protection of section 4
of "Basic Law: The Knesset."137
Thus, the Bergman decision applied de facto only to
"Basic Laws" that were entrenched.
131
United Mizrahi Bank, supra note 8, at 274-76.
132
For Barak's letter, see Aharon Barak, On the Amendments to Basic Law: Freedom of Occupation, 2
MISHPAT UMIMSHAL 545 (1994) [hereinafter Barak, Amendments].
133
See supra note 71 enumerating three later cases in which the court interpreted the section in this way.
134
See Ariel Bendor, Entrenchment and Constitution: Bergman and the Constitutional Discourse in Israel,
31 MISHPATIM 821 (2001).
135
See discussion supra notes 118 & 119 and accompanying text.
136
See David Kretzmer, The Path to Judicial Review in Human Rights Cases: From Bergman and Kol
Ha'am to Mizrahi Bank, 28 MISHPATIM 359 (1997).
137
See supra note 71 and accompanying text. That later judicial decisions' understanding of the precedential
nature of the case is important in determining its contribution. See CROSS AND HARRIS, supra note 16, at
45-47.
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A fourth theory that may be offered as an explanation of the Bergman decision is that
of self-dealing or usurpation of power. According to it, the Court treated the finance
statute at stake in Bergman as the product of self-dealing on the part of MKs. By
preventing public funding for new political parties, members of the legislature were
effectively trying to limit the electoral competition they would face and entrench
themselves in office. The Court thus treated the finance statute as a usurpation of the
Knesset’s legislative powers and thus beyond its authority to legislate. Although the
Knesset enjoys legislative powers, those are granted by the People at election. The
People, however, never granted MKs the power to entrench themselves in office.138
The
power of judicial review thus understood is limited to cases of gross usurpation of power,
much like the famous British seventeenth century Dr. Bonham’s case.139
In fact, as
already mentioned, in all subsequent cases in which the Court exercised judicial review
power over primary legislation, it was always in the case of section 4 of "Basic Law: The
Knesset" and always involved self-dealing by MKs.140
Therefore, this theory could have
served as an explanation of the Court’s judicial review power prior to United Mizrahi
Bank.
The difficulty with the theory arises, however, on the remedial front. In all cases
dealing with the infringement of section 4 of "Basic Law: The Knesset," the Court
granted the Knesset the option to either remove the violation of self-dealing or reenact the
violation with the support of an absolute majority of MKs. If the Court treated selfdealing
as a usurpation of legislative power, it is not clear why it could be remedied if
done with the support of an absolute majority of MKs.
A fifth possible theory is that “nothing” was decided in the case. Retired CJ Landau,
who wrote the Bergman decision, used similar words to describe the ratio of the case in
articles published in both 1971 and 1996.141
Landau wrote his 1996 article in response to
the United Mizrahi Bank decision. He was upset with both Shamgar and Zamir for
relying on his opinion in Bergman as a precedent for the United Mizrahi Bank decision.
Landau felt that Bergman could not serve as precedent for either the assertion that Israel
has a formal Constitution in the form of "Basic Laws" or that the Court has the power of
judicial review over primary legislation. He read his very own Bergman decision to mean
that “all the constitutional questions were left open.”142
While Landau’s proposition seems peculiar in light of the remedy granted in the
Bergman decision, the decision does lack an explanation for the Court’s judicial review
138
“The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a
delegated Power from the People, they, who have it, cannot pass it over to others.” JOHN LOCKE, TWO
TREATISES OF GOVERNMENT the Second Treatise § 141 (Peter Laslett ed., 1988).
139
8 CO. REP. 114a, 77 ENG. REP. 646 (C.P. 1610). See also Theodore F.T. Plucknett, Bonham's Case and
Judicial Review, 40 HARV. L. REV. 30 (1926-27); Edward S. Corwin, The 'Higher Law' Background of
American Constitutional Law, 42 HARV. L. REV. 149 (1928-29); Raoul Berger, Doctor Bonham's Case:
Statutory Construction or Constitutional Theory?, 117 U. PA. L. REV. 521-45 (1969).
140
Cf. Yoav Dotan, The Knesset as 'Legislating for Itself' in the Jurisprudence of the Supreme Court, 31
MISHPATIM 771 (2001) (arguing that because the Court relied on sec. 4 of “Basic Law: the Knesset” this
could not have been the theory underlying the Court's decision).
141
Landau, Constitution Maker, supra note 73, at 699-700. See also Moshe Landau, The Constitution as a
Supreme Law of the State?, 27 HAPRAKLIT 30, 30 (1971) (writing that "the Supreme Court refrained from
answering these [constitutional ] questions.")
142
Id. at 700.
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24
authority. If a precedent is judged by its reasoning rather than its outcome, no theory was
offered in Bergman that may be relied upon in future cases.143
It may be further suggested that because of the uniqueness of the issue at stake—i.e.,
ensuring equal elections to the legislative assembly—no one ever challenged the Court’s
judicial review authority to protect the very foundation of a democratic society.144
In
other words, during the Bergman case, due to the urgency of deciding the case at election
time, the Attorney General was never granted his request to argue against the Court’s
judicial review authority. In later cases, the Attorney General probably felt that in such a
fundamental matter as ensuring equality in impending elections, she would not want to
insist on questioning or undermining the Court’s judicial review authority. Rather, the
overriding concern was to remedy any statute that might infringe upon the equality of
elections. With no one to challenge the Court’s judicial review authority, the Bergman
decision became a precedent for the Israeli Court’s power of judicial review over primary
legislation. That is an example of how "hard cases make bad law."145
In this sense, even if the Bergman decision was revolutionary, the scope of the
revolution was limited to ensuring equal elections. Obviously, this is no small matter.
Equal elections norms are part of the very essence of a democratic society. Prior to
United Mizrahi Bank, however, Israel was still very far from a fully formed constitution.
A sixth plausible theory is that the Bergman decision enforced a quorum requirement
on MKs. Usually, Israeli law enforces no attendance requirements on MKs in order to
enact laws.146
Section 4 of "Basic Law: The Knesset" required such attendance by
demanding the support of a “majority” of MKs to amend it. The Court enforced such a
“quorum” or “attendance” requirement because it aligned with democratic theory.
Section 4 did not require the support of more than the majority to amend a statute if all
Members were attending and participating in the debate. But the Bergman decision
should not be understood as precedent for the validity of any entrenchment provision that
exceeds the requirement of an absolute majority of MKs. Such an entrenchment provision
would not align with basic democratic principles of majority rule.147
This is, in fact, how
Justice Cheshin interpreted the Bergman decision in his United Mizrahi Bank dissent.
Cheshin recognized the validity of procedural entrenchment provisions as long as they
did not require the support of more than a majority of MKs. He viewed such
entrenchment provisions as essentially “quorum” or "attendance" requirements which
were valid whether they appeared in regular statutes or “Basic Laws.”148
All six theories explaining the Bergman decision could potentially align with
Shamgar's monist theory. If what counts is the title "Basic Laws," then the Knesset uses
this title to indicate its desire to entrench the enactment at stake. If what counts is
143
See CROSS & HARRIS, supra note 16, at 47-48 (regarding how to determine the ratio where the
reasoning is lacking from the decision).
144
This is in keeping with J.H. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980),
suggesting that the Court is justified in exercising judicial review only to enhance the democratic process.
Ely was highly influenced by United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).
145
1854 G. Hayes in W. S. HOLDSWORTH, HISTORY OF ENGLISH LAW (1926) IX. 423.
146
See supra note 115 and accompanying text.
147
See, e.g., Roberts & Chemerinsky, supra note 29; Paul W. Kahn, Gramm-Rudman and the Capacity of
Congress to Control the Future, 13 HASTINGS CONST. L.Q. 185 (1985-86) (contending that entrenchment is
constitutional only if done by a hierarchical authority).
148
United Mizrahi Bank, supra note 8, at 535-47.
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entrenchment per se, then the Knesset is unlimited unless it imposes limits upon itself, in
the form of entrenchment, as Shamgar suggested. If what matters is the combination of
the title "Basic Law" and an entrenchment provision, then the Knesset uses such
combinations, and only such combinations, to limit itself. If only in cases of gross
usurpation of legislative power the Court intervenes, then even in the Britain of the
seventeenth century there is precedent for the exercise of judicial review power to protect
against self-dealing by the legislature.149
It is beyond doubt that, even in a parliamentary
sovereignty system, the regular mandate granted by the People at election does not
include the power of the legislature to entrench itself in office.150
If "nothing" was
decided in the case, then it is by Knesset's consent, rather than the decree of the Court,
that equal elections norms has prevailed even against subsequent conflicting statutes.
Further, such an approach aligns with Ely's democratic theory that judicial review power
is justified only as an enhancement of democratic mechanisms. Only then is judicial
review democratic, not counter-majoritarian.151
If it is only a quorum requirement that the
Court is enforcing, then entrenchment provisions are not truly entrenchment but rather
absolute majority requirements. Under such theory, the Knesset is not only sovereign but
also unlimited. Under either theory, Shamgar seems to stand on firm ground and to have
relied on Israel's particular legislative and judicial history when suggesting the monist
theory.
3. The Knesset’s Response
Following the Bergman decision, the Knesset abided by the Court’s decision. It complied
with both remedies suggested by the Court, although they were offered alternatively
rather than cumulatively. In other words, it would have been sufficient for the Knesset to
adhere to one of the remedies proposed.
The Knesset amended the finance law, so that it granted funding to new competing
political parties if they were successfully elected to the Knesset. Under the amended
finance law, established political parties that were already represented in the outgoing
Knesset got their financing ahead of the election, while the new competing political
parties were granted funding retrospectively, if successful at the polls. While established
political parties still enjoyed an advantage at election, MKs believed that the amended
finance law conformed to the Bergman's Court suggestion to fulfill the requirements of
"substantive," rather than "formal," equality norms at elections.152
The Knesset, however, did not risk another challenge against the (now) amended
finance Act, but in addition enacted also a unique statute entitled "Elections (Certification
of the Validity of Statutes) Act of 1969" (the "Validity Act").153
This Act certified
retroactively and by way of reference that all existing enumerated statutes dealing with
the upcoming elections were valid. The Knesset enacted this Validity Act by an absolute
149
See Dr. Bonham's Case, supra note 139 and accompanying text.
150
See also J.W. GOUGH, FUNDAMENTAL LAW IN ENGLISH CONSTITUTIONAL HISTORY, 180-86 (1955).
During both World Wars, however, the British Parliament extended its life to meet the emergency at stake.
151
See discussion of Ely, supra note 144 and accompanying text.
152
Bergman, supra note 71, at 700.
153
S.H. 204. See also DK (1969) 3679-83.
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majority of MKs to guarantee that it conformed to the majority requirements of section 4
of "Basic Law: The Knesset."
What was peculiar about the Knesset's move was that not only was it done
retroactively, but the Validity Act itself, rather than the potential infringing election
statutes, was passed by the required absolute majority. This method, using a combination
of reference and retroactive validation, without a "notwithstanding" language referring to
the constitutional norm that has been infringed, would become the Knesset's regular
pattern to revalidate statutes invalidated by the Court.154
This method of validation by way of reference raises a constitutional problem: Instead
of forcing the legislature to consider each infringement on constitutional provisions for its
own sake and determine the propriety, desirability, and constitutionality of that infringing
provision, the legislature only grants lip service to the status of the "Basic Law." This is
not the kind of respect we demand of legislative assemblies to constitutional
provisions.155
It also does not enable the legislature to self-consciously and publicly take
responsibility for infringing the constitution. How can either legislative members or the
public assess the constitutional ramifications and the severity of the infringement if there
is no discussion of the nature of the infringement? It is a blank check for circumventing
the Constitution.156
The threshold constitutional difficulty with granting retroactive validity to infringing
statutes is the general problem of the "rule of law," which requires that legislation
generally have only prospective application.157
In addition, it lacks respect; the legislature
should not be able to retroactively circumvent the Constitution. If it can, then the
Constitution cannot be deemed supreme.158
Thus, while the prevailing scholarly understanding is that the Knesset acquiesced
with the Bergman progeny line of decisions, thus consenting to judicial review over
primary legislation, it is my contention that a careful analysis of how the Knesset
154
See infra notes 348 - 351 and accompanying discussion. In addition to the Bergman and Laor cases, the
Knesset reaffirmed an infringing statute and gave it retroactive validity following Agudat Derech Eretz,
supra note 71. See Hans Klinghoffer, Legislative Reaction to Judicial Decisions in Public Law, 18 ISR. L.
REV. 30, 33-34 (1983).
155
The duty of respect is explicitly provided for in “Basic Law: Human Dignity and Liberty,” § 11: "All
governmental authorities are bound to respect the rights under this Basic Law."
(available at http://www.knesset.gov.il/laws/special/eng/basic4_eng.htm.) (last visited on July 29, 2008).
Similar provision appears in “Basic Law: Freedom of Occupation,” § 5.
156
Cf. Ford v. A.G. Quebec, [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577 [hereinafter Ford]. In Ford, the
Canadian Supreme Court upheld the validity of an omnibus override on the part of Quebec's legislature,
which took the form of a standard general provision inserted in all past statutes. This general override was
done to protest the adoption of the Charter without Quebec's consent. But see Lorraine Eisenstat Weinrib,
Learning to Live With the Override, 35 MCGILL L.J. 543 (1989-90). Weinrib criticized the Ford decision
for enabling the Quebec legislature such robust override of the Charter. Instead, she suggested that the
override mechanisms should have been interpreted to demand the legislature to specifically consider and
deliberate regarding each constitutional infringement whether it was justified by stating specifically which
rights were infringed by which statutes.
157
See LON L. FULLER, THE MORALITY OF LAW 51-63 (revised ed., 1963). See also Jeremy Waldron,
Retroactive Law: How Dodgy was Duynhoven?, 10 OTAGO L. REV. 631 (2004) (criticizing retroactivity
also in the context of electoral laws).
158
Indeed, the only part in Quebec's sweeping general override of the Charter that was overruled by the
Canadian Supreme Court was its retroactive applicability. See Ford, supra note 156.
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responded reveals a very different outcome.159
The Knesset's method of certifying
infringing statutes retroactively by way of reference actually mirrors the way the Knesset
puts even entrenched "Basic Laws" on par with regular statutes. That the Israeli Supreme
Court repeatedly validated the Knesset's technique manifests that it, too, treated the
"Basic Laws" as part of a monist tradition.160
Moreover, even as late as March 26, 1992, Barak too accepted the Knesset's
retroactive validation technique, treating entrenched "Basic Laws" as part of our monist
tradition.161
Only in January 1994, when responding to the Knesset's initial draft of
amendment to "Basic Law: Freedom of Occupation," did Barak write in a letter to the
Knesset that it is questionable whether the Knesset as a Constituent Assembly is
authorized to amend the constitution with retroactive applicability.162
Shamgar may thus
rely on both the Knesset's and the Court's own actions in support of his monist rule of
recognition.
C. Is It Monism, after all? Or the Difficulties with Monism
The essence of Shamgar's theory is that the sovereign Knesset creates a Constitution by
entrenching its enactments. Shamgar treats entrenchment as a supremacy mechanism.
Entrenchment and normative supremacy, however, are two separate matters. It is true that
a supreme constitution is characterized by amendment provisions that define a more
arduous track for achieving constitutional, as opposed to legislative, change. In that
sense, a supreme constitution enjoys some degree of entrenchment.163
However,
entrenchment provisions may appear in regular enactments as well,164
and no one
159
For the prevailing understanding, see, e.g., Gal Dor, Governmental Avoidance Versus Judicial Review:
A Comparative Perspective on Israeli Decision-Making Strategies in Response to Constitutional
Adjudication, 13 TEMP. INT'L & COMP. L.J. 231 (1999); Klinghoffer, supra note 154.
160
HCJ 60/77 Ressler v. Broadcasting Authority, 31 (2) P.D. 556 (1977) (Isr.). In Ressler, the Court
accepted the validity of the Validity Act and thus refrained from reviewing the validity of certain
provisions of an elections law that was protected under the Act. This decision was given before Barak was
appointed to a Supreme Court justice.
161
See HCJ 410/91 Blum v. Chairman of the Knesset, 46 (2) P.D. 201 (Isr.) [hereinafter Blum] (affirming
the legality of retroactive validation of both amendment of Basic Law: The Knesset and regular statutes
that may have infringed its sec. 4, enacted by the Knesset in response to the Laor Movement decision, supra
note 71 ). One can argue however that the issue of retroactivity was not raised by the appellants though this
has not been an obstacle to the Court in other cases in the past. See also discussion infra Part IV.B.
162
Barak, Amendments, supra note 132, at 549. The Knesset has accepted Barak's recommendations on
how to draft the amendment, including his advice on the distinction between infringement and amendment
of the Basic Law.
163
See RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT
(Sanford Levinson ed., 1995) [hereinafter RESPONDING TO IMPERFECTION].
164
See discussion supra Part I.B. See also Skaggs v. Carle, 898 F. Supp. 1, 1995 U.S. Dist. LEXIS 13772
(D.D.C. 1995) affirmed by Skaggs v. Carle, 324 U.S. App. D.C. 87, 110 F.3d 831, 1997 U.S. App. LEXIS
8044, 79 A.F.T.R.2d (RIA) 2258 (1997) (famously rejecting a constitutional challenge to supermajority
requirement in the House of Representatives' Rules to protect against legislation increasing income taxes).
See Bruce Ackerman et al., An Open Letter to Congressman Gingrich, 104 YALE L. J. 1539 (1995)
(asserting that this supermajority requirement is unconstitutional); and for further discussion by one of the
authors: Jed Rubenfeld, Rights of Passage: Majority Rule in Congress, 46 DUKE L. J 73 (1996). For a
critique of this open letter, see John O. McGinnis & Michael B. Rappaport, The Constitutionality of
Legislative Supermajority Requirements: A Defense, 105 YALE L.J. 483 (1995). This may not be true
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seriously claims that entrenched regular statutes are part of the Israeli Constitution. Even
Shamgar did not assert that. Thus, entrenchment provisions alone cannot be used as the
mark distinguishing constitutional from regular law. This is not the mechanism that
creates supreme constitutions, Shamgar's theory notwithstanding. In fact, this difficulty is
probably one of the forces behind Barak's rejection of monism to explain Israel's
constitutional development.165
Not only may entrenchment provisions appear in regular law, but normative
supremacy may exist without entrenchment provisions. Put differently, entrenchment
does not entail normative supremacy and normative supremacy does not entail
entrenchment. Thus, supreme constitutions enjoy wide-ranging amendment mechanisms
varying from the mere requirement of a legislative majority to the complete inability to
amend some of their provisions. Moreover, the same constitution may define different
amendment tracks to its various provisions.166
In fact, most of the provisions in Israel's
"Basic Laws" lack entrenchment protection, yet Shamgar seems to suggest that all should
enjoy supreme status and be amended by "Basic Laws" alone, not by mere legislation.167
Thus, Shamgar himself is inconsistent regarding what it takes to create the Israeli
Constitution.
Additionally, the Court clarified in decisions after United Mizrahi Bank that the
constitutional revolution pertains to all “Basic Laws,” and not just to those dealing with
individual rights.168
Thus, the Court treats all "Basic Laws" as supreme, even though
most of them are not entrenched and can be amended by bare regular majorities of those
present. The Knesset cannot infringe upon their provisions dealing with individual rights
unless the infringing statute fulfills the four-part test of constitutional scrutiny,169
which
is explicitly embodied in the "Basic Laws" enacted in 1992 but is read by the judiciary
into previous "Basic Laws." Even "Basic Law: Human Dignity and Liberty" is not
procedurally entrenched, yet is treated as supreme.
Furthermore, while self-entrenchment of the legislature may be found in practice in
many countries, it is not free from challenge, even aside from the well-known selfreference
logical difficulty.170
Admittedly, it may offer numerous unique advantages to a
legislature that utilizes it. Entrenchment provisions may contribute to constitutional and
legislative entrenchment however, since the House could change this entrenchment provision by regular
majority. Skaggs, 110 F.3d 835.
165
United Mizrahi Bank, supra note 8, at 403 (Barak) ("Entrenchment does not create normative
supremacy. Even if the law may entrench itself, it cannot elevate itself."). See also BARAK,
INTERPRETATION, supra note 25, at 45.
166
See RESPONDING TO IMPERFECTION, supra note 163.
167
Shamgar was not consistent however regarding his own theory. In some places, he asserted that, when
there is no entrenchment provision in place, then the "Basic Laws" are only potentially and not de facto
supreme. United Mizrahi Bank, supra note 8, at 271. In other places, he seemed to suggest that after the
United Mizrahi Bank decision, all "Basic Laws" should be treated as supreme regardless of whether they
enjoy entrenchment provisions. Id. at 299.
168
See, e.g., HCJ 212/03 Herut-The National Movement v. Chairman of the Central Elections Commission
to the Sixteenth Knesset, 57(1) P.D. 750 (2003) (Isr.); EA 92/03 Mofaz v. Chairman of the Central
Elections Commission to the Sixteenth Knesset, 57(3) P.D. 793 (2003) (Isr.).
169
See text accompanying note 37 supra. Judicial decisions have applied the four-partite test of
constitutional scrutiny without clarifying that they impose it only with regard to the protection of rights. So
far, only the literature makes the explicit distinction between the protection of individual rights and that of
the structure of government. See AHARON BARAK, A JUDGE IN A DEMOCRACY 352-53 (2004).
170
See Alf Ross, On Self-Reference and a Puzzle in Constitutional Law, 78 MIND 1 (1969).
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legislative stability. It allows the legislature to credibly signal its commitment to a certain
policy and thus reduce ex ante the costs of legislation. It may remove certain contested
topics from the public agenda, and thus enable the legislature to concentrate on other
imperative matters. It guarantees public deliberation before the entrenched provision is
amended. It allows the legislature to pre-commit to a certain policy, when its members
fear they may not act according to their true preferences ex post due to political
considerations. It provides a better decision-making rule than a simple majority for
protecting minority rights from majority's abuse.171
But despite these substantial advantages, self-entrenchment of the legislature is
questionable on democratic grounds. It allows one legislature to bind another without
providing democratic legitimacy: Why should the entrenching legislature enjoy more
power than its successor to restrict the latter by entrenched provisions? Moreover, the
actual effect of such entrenchment when it consists of supermajority requirements is a
transfer of power from the majority of legislators to the minority. The minority is granted
veto power over the entrenched matter. In fact, we choose the legislature to legislate, not
to delegate its authority to yesterday’s majority or tomorrow’s minority, as occurs under
common entrenchment.172
Furthermore, entrenchment is especially problematic when it is
decided by a passing random majority but requires a supermajority to undo it, as
happened in Israel.173
We even treat the legislative delegation of legislative power as unconstitutional and
beyond the authority of Congress in the U.S.174
Certainly, there is a long common law
tradition that Parliament is sovereign and may legislate as it desires, except binding its
successors.175
Even Hart, whose writings Shamgar relies on when discussing the two
concepts of sovereignty, openly admits that the concept of a self-restricting sovereign has
been rejected de facto.176
This is not to say that the British Parliament has not attempted
at times to bind its successors.177
The courts, however, did not always enforce such
entrenchment on noncompliant Parliaments.178
This is another manifestation of the fact
that legislative self-entrenchment is not equivalent to the creation of a supreme
constitution.
Consistent with this policy, even recent changes in British constitutional law are not
treated as beyond Parliament’s legislative power to undo. Thus, European law is supreme
over contradictory British law, as long as Parliament chooses to remain part of the Union.
Obviously, retrieval is not simple and will extract heavy political and economic prices,
171
See Posner & Vermeule, supra note 29 (elaborating these advantages with regard to legislative selfentrenchment
in a constitutional system that enjoys a supreme Constitution).
172
For support, see supra notes 29 & 138 and accompanying text.
173
See McGinnis & Rappaport, Symmetric Entrenchment, supra note 29.
174
See I.N.S. v. Chadha, 462 U.S. 919 (1983).
175
DICEY, supra note 88, at 39. 1 W. BLACKSTONE COMMENTARIES 91.
176
See supra note 82 and accompanying text.
177
For examples, see Posner & Vermeule, supra note 29, at 1678; DICEY, supra note 88, at 21-25 ("That
Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their
successors is certain, but the endeavour has always ended in failure." Id. at 21).
178
See Mark Elliott, Embracing 'Constitutional' Legislation: Towards Fundamental Law?, 54 N. IR. LEGAL
Q. 25 (2003) [hereinafter Mark Elliott, Embracing]; Anupam Chander, Sovereignty, Referenda, and the
Entrenchment of a United Kingdom Bill of Rights, 101 YALE. L. J. 457 (1991); Posner & Vermeule, supra
note 29, at 1667-68; Roberts & Chemerinsky, supra note 29, at 1789-95 (suggesting that US courts will
treat the breach of legislative entrenchment requirements as non-justiciable).
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but it is still possible. Thus, British courts have treated the supremacy of European law as
a matter of parliamentary choice.179
Similarly, the Human Rights Act 1998 is treated as a
Bill of Rights, but even Parliament’s adherence to it is voluntary. The superior courts at
most will issue a proclamation of incompatibility between a breaching statute and the
Act, but the implications, however politically harsh, are up to Parliament to decide.
Parliament may decide to leave the breaching statute intact.180
Thus, Shamgar dismissed
too hastily the traditional understanding of Diceyan parliamentary sovereignty as
explanatory of British constitutional law today.
Shamgar's monist theory further assumes that sovereignty and true (or valid)
entrenchment are not mutually exclusive. However, if we take his theory seriously, then
once a constitution is established through entrenchment, the legislature has exhausted its
sovereignty and its powers are then curtailed. More than monism, his theory is a portrayal
of how monism destroys itself without defining a clear successor: What new sovereign to
replaces the legislature? Ultimately, where does responsibility lie when the Constitution
is unalterable according to existing rules but an overwhelming consensus of the
legislature or the People demand that it be changed?
Shamgar assumes that there are "inherent" limits on the Knesset's power of
entrenchment.181
These inherent limits may probably assist him when entrenchment fails
to make sense in light of a new overwhelming consensus. But what is the theory that
defines these inherent limits? His monist theory does not answer these pertinent
questions. It cannot thus provide the theory for the Israeli Constitution. At least, it cannot
do so alone.
III. DUALISM
While Shamgar suggested that Israel's "Basic Laws" formed a formal monist constitution,
Barak opted to ground the Israeli Constitution in the concept of dualism. Instead of
relying on the British roots, Barak referred to the American tradition of Marbury v.
Madison. After all, if it worked for the Americans, why wouldn't it also succeed in Israel?
In fact, the U.S. Constitution is considered around the world to be the oldest surviving
formal constitution of a democratic country. But, does popular sovereignty provide a
convincing basis for the adoption of the Israeli constitution in the twentieth century? This
Part analyzes Barak's Constituent Authority theory and whether, though desirable, it can
serve as an adequate theoretical basis for the emerging Israeli formal Constitution. This
Part concludes with an analysis of Cheshin's dissenting opinion and why it too fails to
sufficiently explain Israel's constitutional development.
A. Barak’s Constituent Authority Theory
The newly appointed Chief Justice of the Israeli Supreme Court based the Knesset's
power to adopt a constitution on a theory of constituent authority. The Knesset fulfills
179
See John Laws, Law and Democracy, 1995 PUBLIC LAW 72. Cf. Anthony W. Bradley, "The Sovereignty
of Parliament - Form or Substance?" in THE CHANGING CONSTITUTION 26 (Jeffrey Jowell & Dawn Oliver
eds., 2004).
180
Gardbaum, supra note 33, at 732-39.
181
See supra notes 90 & 91 and accompanying text.
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two alternate roles, that of a legislature and that of a constituent authority.182
Barak
further stated that only in its capacity as a constituent authority may the Knesset entrench
its enactments. Any attempt on its part to entrench regular enactments as part of its
legislative task is questionable on democratic grounds and may not survive judicial
scrutiny.183
That is, only in its capacity as a constituent authority may the Knesset limit
its authority as a legislative authority. Although the Knesset has no separate legislative
track for the enactment of constitutional law, Barak asserted that MKs were actually
aware when enacting "Basic Laws" that they were fulfilling their task of a Constituent
Assembly.184
He held that the Knesset used the title "Basic Law" without a year mark to
distinguish chapters of the Constitution from regular legislation.185
This differentiation is
sufficient to validate entrenched constitutional, but not regular, enactments.
The Knesset’s continuing power of constituent authority since 1949 Barak attributes
to "constitutional continuity."186
Had the First Knesset, elected in 1949, chosen to adopt a
Constitution, no one seriously doubts that it would have enjoyed the authority to do so.187
This First Knesset was elected primarily as a constituent rather than legislative body.188
Although it did not adopt a Constitution, it passed the Harrari Resolution charging future
Knessets with the task of drafting the Constitution in the form of "Basic Laws." The
Constitution, Legislation and Justice Committee was specifically assigned the task of
preparing a draft constitution in the form of “Basic Laws.”189
The First Knesset further
enacted the "Transition to the Second Knesset Act of 1951," which states that any
authority enjoyed by it would also be available to its successors.190
Barak concluded that,
when future Knessets enacted "Basic Laws," they thus assumed they were enjoying the
same authority of Constituent Assembly as the First Knesset.191
Barak admitted that if the question of the Knesset's constituent authority would have
been raised at the time of the Second Knesset in the 1950s, it would have been a grave
constitutional question and different answers could have been offered in reply. On the
one hand, the Transition Act attempted to establish expectations of continuing authority.
On the other hand, it may have been advisable to return to the people and ask for their
direct consent. At the time of the United Mizrahi Bank decision in the 1990s, however,
Barak held that it was too late to raise doubts as to the Knesset's constituent authority.192
Barak accepted that the main difference between the First Knesset and any subsequent
Knesset is the fact that only elections to the former were focused on the constitutional
agenda. In any subsequent election, the constitutional issue was only one of the issues
competing for electoral attention. It definitely did not serve as a prominent topic at
182
United Mizrahi Bank, supra note 8, at 355-56.
183
Id. at 410-11.
184
Id. at 369-83.
185
Id. at 403-06.
186
Id. at 359-69.
187
Id. at 393 (Barak).
188
See supra notes 52 & 53 and accompanying text.
189
See discussion supra Part I.B.
190
The Transition to the Second Knesset Act, 1951, S.H. 104, §§ 5 and 10.
191
United Mizrahi Bank, supra note 8, at 365-69.
192
Id. at 366-69, 392-401.
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elections. Barak was satisfied however with even such an amorphous mandate from the
People to the Knesset to enact a Constitution.193
In support of his well-stated constituent authority theory, Barak noted that the courts
have treated the Knesset as enjoying such authority. That is why they enforced
entrenched section 4 of "Basic Law: The Knesset" on breaching Knessets.194
Further,
Barak held that legal academia too predominantly shared his view..195
Thus, all the
different relevant political actors, the Knesset, Court, the people and academia, share
common expectations that the Knesset would be the one to draft the Israeli Constitution,
and, in fact, the Knesset has fulfilled these expectations when enacting "Basic Laws."
Barak further asserted that any different interpretation would mean that the Knesset
worked in vain when enacting 11 "Basic Laws" over the last half-century.196
Israel as a
country would be back to square one in adopting a constitution. Barak also warned that
such an interpretation by the Court would have dire implications, since it is not at all
clear how Israel can adopt a constitution today from scratch. Usually, a country adopts a
constitution at its founding. But Israel does not want to begin again. Israelis do not want
the fire, turmoil, and violence typical of a nation's founding and constitutional birth.
Moreover, referring a constitution for the people's decision via referendum is not simple,
since Israel has no tradition of such referrals to the populous.197
Barak concluded that
such results can be avoided if one accepts his theory of constituent authority.
Barak suggested three possible alternative models, any of which could serve as
theoretical bases for his normative conclusions. Each model is based on the writings of a
different prominent legal philosopher. They include Kelsen's Austrian theory of the
Grundnorm; Hart's British theory of the "rule of recognition"; and Dworkin's American
theory of interpretation.198
The first Kelsian model suggests that every state has a basic
norm from which derives the authority of all legal norms in the system. This basic norm,
however, is extra-legal, based on an assertion of power rather than legal authority. It
serves as the new beginning of the legal system.199
Barak asserted that in Israel this basic
norm is the authority of Moetzet Ha'am, which included representatives of both the
Jewish population in Israel and the Zionist movement, to declare a new State and decide
on elections to an assembly that will adopt a formal constitution. Moetzet Ha'am enjoyed
plenary lawmaking power and transferred that authority to the First Knesset. That the
Knesset today still enjoys this plenary lawmaking power Barak attributed to
"constitutional continuity," as stated above.
The second alternative, the Hartian model, distinguishes between primary and
secondary rules. Primary rules are obligatory on individuals. Secondary rules, on the
other hand, are concerned with the identification, validity, changeability, and efficacy of
the primary rules.200
Among the secondary rules is the "ultimate rule of recognition" that
provides "the criteria by which the validity of other rules of the system is assessed…
193
Id. at 400.
194
Id. at 386-90.
195
Id. at 383-86.
196
Id. at 392.
197
Id. at 392, 399-400.
198
Id. at 356-58.
199
H. KELSEN, PURE THEORY OF LAW 193-95 (Knight trans. 1967).
200
HART, supra note 21, at 79-99.
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[but] there is no rule providing criteria for the assessment of its own legal validity."201
We may learn to identify this ultimate rule by observing what courts, officials, and the
People treat as the ultimate rule of recognition. In Britain, for example, Hart suggested
that the ultimate rule of recognition is: What Parliament enacts is law.202
To determine
Israel's ultimate rule of recognition, Barak analyzed the views held by the Knesset, Court,
academia, and the People, as noted above. He concluded that the ultimate rule of
recognition in Israel is that the Knesset enjoys constituent authority to enact "Basic
Laws" that serve as Israel's Constitution.
The third alternative, the Dworkian model of interpretation, suggests that judges
should interpret legal norms according to the interpretation that best "fits" the legal
system.203
Barak emphasized that such interpretation has to be best suited to the legal
system's social and legal history.204
In the interpretative dilemma Barak faced in United
Mizrahi Bank--whether the Knesset enjoys constituent authority and whether the "Basic
Laws" are Israel's Constitution--Barak answered "yes" to both questions to avoid the dire
results that any alternative interpretation would entail, as enumerated above. It best suited
Israel's social and legal history in light of "constitutional continuity" and the perceptions
of all political actors involved.
Barak offered these three alternative models, instead of just one, to enhance his
dualist conclusion that Israel has a formal supreme Constitution in the form of "Basic
Laws." Under any of the models suggested, all the relevant political actors were partners
to this dualist constitutional enterprise. They were all aware that the Knesset enjoys such
constituent authority and was exercising it when enacting "Basic Laws." They all
consented to this dualist process. Barak therefore felt comfortable to rely on the
American justification for judicial review as stated in Marbury v. Madison.205
Since
"Basic Laws" represent the will of the People, Israeli courts in the future would exercise
judicial review to merely guarantee that the will of the People is superior over the will of
its representatives in the legislature. This was a democratic answer to the Bickelian
"counter-majoritarian" difficulty with judicial review.206
Barak was not satisfied with the dualist Marburian justification alone. He offered a
well-organized array of additional justifications for the legitimacy of judicial review over
primary legislation in the Israeli context, including the rule of law; separation of powers;
substantive democracy (which demands the protection of Human Rights); and the
objectivity of an independent, unelected, professional judiciary.207
In essence, he stated
his beliefs that judicial review power is derived from the very nature of a formal
Constitution. There is no meaning to a Constitution unless it is supreme. Like Marshall,
he further asserted that there is no meaning to its supremacy unless it is enforced by an
independent judicial branch that exercises judicial review over primary legislation.208
Put
differently, if a country has a Constitution, its Constitution is by definition supreme and
enforced by judicial review. Barak had just laid the groundwork explaining why Israel
201
Id. at 105-07.
202
Id. at 100-10.
203
R. DWORKIN, LAW'S EMPIRE, supra note 129; R. DWORKIN, A BILL OF RIGHTS FOR BRITAIN (1990).
204
United Mizrahi Bank, supra note 8, at 358.
205
Id. at 416-17.
206
ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH (2nd ed., 1986).
207
United Mizrahi Bank, supra note 8, at 419-27.
208
Id. at 420.
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has a formal Constitution in the form of "Basic Laws." From that necessarily derived the
assertion that this Constitution is supreme and protected by judicial review. All three
giant steps were taken in the United Mizrahi Bank decision.
Barak readily conceded, however, that the legitimacy of judicial review ultimately
depends on the legitimacy enjoyed by a constitution itself.209
He wrote that if the
Constitution was democratic then the exercise of judicial review to protect it is
democratic as well.210
He thus challenged his critics to focus on the legitimacy of the very
formation of the Israeli Constitution.
B. Does the Much Desired Dualist Israeli Constitution Exist?
In technical formal terms, Barak has succeeded in establishing the Israeli Constitution
through a dualistic approach, giving Israel a two-tier system of “Basic Laws” and regular
laws. By the Court’s ruling in United Mizrahi Bank, the Knesset may amend “Basic
Laws” only by “Basic Laws” (usually same process of enactment as regular laws), and
legislative encroachment of “Basic Laws’” provisions may be done according to the
conditions prescribed by the “Basic Laws” alone.211
United Mizrahi Bank achieved a
formal hierarchical dualist result. But, has the process of enactment of the “Basic Laws”
provide a dualist basis in substantive terms or, instead, was it typical of a monist
constitution? We will now turn our attention to this question and its implication for
Israel’s constitutional future.
1. Dualism’s Requirements
A dualist Israeli Constitution has obvious advantages over its monist rival. It suggests
that the Constitution enjoys the legitimacy of popular, not just legislative, consent. Under
dualism, the legislature is limited by the higher authority of the People, rather than its
own self-entrenchment power. If, under monism, grave democratic doubts arise as to the
power of one legislature to bind its successors without a special mandate from the People,
under dualism it is the demos that binds its representatives. It should come as no surprise,
therefore, that Barak attempted to base the Israeli Constitution on the solid grounds of
dualism.
What are the requirements of the dualist model? When could we plausibly argue that
a constitution is based on popular sovereignty? Dualism distinguishes between the People
and their representatives. It does not assume that the will of the representatives
necessarily aligns with the will of the People.212
Today, we have vast empirical evidence
suggesting that legislation supported even by an overwhelming majority of the
representatives does not necessarily enjoy similarly enthusiastic support of the People.213
209
Id.
210
Id. at 427.
211
See infra note 263.
212
ACKERMAN, FOUNDATIONS, supra note 22, at 3-10, 230-322; ACKERMAN, TRANSFORMATIONS, supra
note 22, at 3-31; Akhil Amar, Philadelphia Revisited: Amending the constitution Outside Article V, 55 U.
CHI. L. REV. 1043 (1988).
213
See, e.g., Vernon Bogdanor, Western Europe, in REFERENDUMS AROUND THE WORLD: THE GROWING
USE OF DIRECT DEMOCRACY 24, 65–68, 96 (David Butler & Austin Ranney eds., 1994); Kris W. Kobach,
Switzerland, id., at 98, 132.
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35
Dualism thus requires, for a nation's most important constitutional decisions, the consent
of the People, not just that of their representatives. The People in this context "is not the
name of some superhuman being…but the name of an extended process of interaction
between political elites [especially the various branches of government] and ordinary
citizens."214
Thus, dualism in essence requires a dual lawmaking track: The first track is
for the enactment of regular law by the legislature as representative of the People. The
other, more arduous, track is for the enactment of constitutional law by the People.215
Dualism accepts that, in normal lawmaking, the representatives stand in for the
People. Although elections are held during normal politics, people do not deliberate
seriously on any particular topic before voting. They are too busy with daily private life
to make the kind of considered judgment necessary in times of constitutional change.216
Also, regular elections are fought over a mixture of issues. It is difficult, if not
impossible, to discern from election's results the People's will with respect to a particular
issue.217
Regular elections thus grant the legislature a general mandate to enact regular
law. They do not grant it a specific mandate to enact constitutional change.
However, at times of constitutional lawmaking, the People must give their deep,
broad, and decisive consent before a dualist change may occur, so that the constitutional
development represents the People's deliberate will.218
The constitutional issue should
dominate the nation's life for a significant period to enable appropriate deliberation219
and
must at minimum reflect the majority's wishes220
; a certain percentage of the electorate221
or, in under more demanding standards, a consensus.222
Definitely, "numbers count" and
214
ACKERMAN, TRANSFORMATIONS, supra note 22, at 187. See also id. at 162.
215
ACKERMAN, FOUNDATIONS, supra note 22, at 3-10, 230-322; ACKERMAN, TRANSFORMATIONS, supra
note 22, at 3-31, 383-420. For similar theory arising from British constitutional thinkers and political actors
of the nineteenth and early twentieth century, see Rivka Weill, Evolution vs. Revolution: Dueling Models of
Dualism, 54 AM. J. COMP. L. 429 (2006) [hereinafter Weill, Evolution]; Rivka Weill, We the British
People, 2004 PUBLIC LAW 380; Rivka Weill, Dicey was not Diceyan,62 CAMBRIDGE L.J. 474 (2003). For a
similar approach described in French constitutional theory, see Jeremy Waldron, Judicial Power and
Popular Sovereignty, in MARBURY VERSUS MADISON: DOCUMENTS AND COMMENTARY 181-202 (Mark
Graber & Michael Perhac eds., .2002) (discussing primarily Sieyes' theory) [hereinafter Waldron, Judicial
Power].
216
ACKERMAN, FOUNDATIONS, supra note 22, at 3-10, 230-322.
217
Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-form Method in
Constitutional Interpretation, 108 HARV. L. REV. 1223, 1284 (1995) [hereinafter Tribe, Taking Text];
David R. Dow, When Words Mean What We Believe They Say: The Case of Article V, 76 IOWA L. REV. 1,
47 (1990) (suggesting that "reading electoral politics is only slightly less fatuous than reading tea leaves.");
Terrance Sandalow, Abstract Democracy: A Review of Ackerman's We the People, 9 CONST. COMM. 309,
319-22 (1992).
218
ACKERMAN, FOUNDATIONS, supra note 22, at 266-94.
219
Ackerman writes that the American process for achieving constitutional transformations is typically
spread over many years. "Each was preceded by a generation and more of political agitation that prepared
the way for a decade of decisive change." ACKERMAN, TRANSFORMATIONS, supra note 22, at 7. But, this
prolonged deliberation time is not necessarily shared by the experience of other countries. See Weill,
Evolution, supra note 215, at 466-67. A shorter but more focused deliberation period may replace a
prolonged but less focused one.
220
ACKERMAN, FOUNDATIONS, supra note 22, at 266-94.
221
See, e.g., Bogdanor, supra note 213, at 24-33 (enumerating different Western European countries that
require qualified majority support).
222
See ,e.g., J.M. BUCHANAN & G. TULLOCK, THE CALCULUS OF CONSENT (1962) (arguing that unanimity
rule is socially optimal in the absence of 'decision-making costs.')
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36
slim support for change simply will not do.223
Decisive consent requires that the change
offered is a "Condorcet winner"; that is, it can top each of the other candidate's policies in
a one-to-one contest.224
Elections held during constitutional times may thus signify the People's consent if
they are at least focused on, if not exclusively targeted to, the constitutional change.225
Usually, dualist systems require a series of elections before such popular consent may be
attributed to the election's results.226
Elections are not the only tool available to signify
the People's consent either. Other available tools include, for example, the use of
referenda (or a series of referendums) that focus exclusively on the constitutional change
or elections to a Constituent Assembly that is charged with the sole mission of drafting
constitutional change.227
Definitely, under dualism, it is not sufficient for the
constitutional issue to be one of the issues at election such that election's results are used
to suggest the consent of the People.
2. Were Dualism’s Requirements Fulfilled in Israel?
Does Israel's constitutional history fulfill the dualist requirements? Even Barak himself
conceded that, excluding the elections to the First Knesset, elections never focused on the
constitutional issue. The constitutional agenda was rather one of many issues competing
for the electorate attention and not even central among them.228
Elections in Israel were
usually fought over security, politicians’ personalities, and socioeconomic matters, not
constitutional topics.229
This is also true of the elections preceding the 1992 revolutionary
"Basic Laws" enactment.230
Under dualism, such regular elections grant a mandate for the
enactment of regular, not constitutional, law.
While the theory of continuity assumes that it is sufficient for later Knessets to enact
constitutional law based on the special popular mandate granted to the First Knesset,
dualism in the sense of popular sovereignty requires that the assembly, which actually
adopts constitutional change, directly enjoy such authority. It cannot rely on its
predecessors’ authority, but must earn a special popular mandate for a defined
constitutional agenda itself. Definitely, the Knesset cannot enjoy constituent authority
223
ACKERMAN, FOUNDATIONS, supra note 22, at 274.
224
Id. at 277. I believe that this is probably the hardest, almost utopian, condition to fulfill.
225
See Amar, supra note 212, at 1094. On the use of elections as semi referenda, see Weill, Evolution,
supra note 215, at 450-53, 466-68.
226
ACKERMAN, TRANSFORMATIONS, supra note 22; Weill, Evolution, supra note 215.
227
See, e.g., Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633 (2000); Arato,
supra note 55; Jon Elster, Forces and Mechanisms in the Constitution-Making Process, 45 DUKE L.J. 364
(1995).
228
See supra note 193 and accompanying text.
229
See, e.g., A. DISKIN, ELECTIONS AND VOTERS IN ISRAEL (1988); G. GOLDBERG, THE ISRAELI VOTER
1992 (1994). Since its establishment, not a decade has passed without a war in Israel.
230
There was the activity of the movement 'Constitution for Israel' prior to the elections to the 12th Knesset
and during the time it was in session. But, the 1988 elections to the Knesset dealt with the explosion of the
Intifada by the Palestinians. The voter was not primarily considering the Constitution. A. ARIEN AND M.
SHAMIR, THE ELECTIONS IN ISRAEL-1988 (1990). Further, the 'Constitution for Israel' movement focused its
struggle on electoral change, advocating direct elections to the Prime Minister. The Bill of Rights suggested
by it was entirely different than that enacted by the Knesset. The movement also sought that its proposed
Constitution would be ratified by the support of two-thirds of the entire Knesset and a referendum. Neither
of these ratification requirements was ever followed. G. BECHOR, CONSTITUTION FOR ISRAEL (1996).
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37
just because it legislated so in the Transition Act. It cannot simply grant itself supreme
legal authority. Under dualism, such authority belongs to the People. Further, it is not at
all clear that the Transition Act meant to transfer constitutional authority to later
Knessets. Some interpret it to declare that every Knesset is Israel’s legislature. That is,
every Knesset enjoys the same scope of legislative, not constitutional, authority.231
Furthermore, if, under dualism, legislation cannot grant constitutional authority to adopt
constitutional change, the same limitation applies to a mere decision of the Knesset in the
form of the Harrari Resolution.232
It should also be noted that, contrary to the Harrari
Resolution's prescription, de facto most “Basic Laws” enacted were not initiated by the
Constitution, Legislation and Justice Committee.233
Not only were Israeli elections dominated by security and socioeconomic matters
rather than constitutional issues, but also there was no more MKs in attendance at the
enactment of "Basic Laws" than that typical of regular enactments. While some MKs
may have understood that they were fulfilling a constitutional role when enacting "Basic
Laws," many more were utterly unaware of their task as a Constituent Assembly.234
Judith Karp, who accompanied the enactment process in 1992 of "Basic Law: Human
Dignity and Liberty" and "Basic Law: Freedom of Occupation" as representative of the
Minister of Justice, believes that a constitutional revolution has occurred with their
enactment. Nonetheless, she attested "that it is doubtful whether the opinions raised in the
Knesset during the discussion of the law show that Knesset Members were aware of their
part and participation in the process of a Constitutional Revolution."235
In fact, the two revolutionary "Basic Laws"—"Basic Law: Human Dignity and
Liberty" and "Basic Law: Freedom of Occupation"--were enacted in 1992 with a slim
presence of MKs. Many MKs, including coalition members, preferred campaigning for
the upcoming election to being present during the "Basic Laws'" enactment.236
They
certainly did not view the laws as a turning point in Israel's constitutional history.237
Thus, "Basic Law: Freedom of Occupation" passed first reading with the vote of 21 to 16,
and the final reading with the support of 23 MKs and none against. "Basic Law: Human
Dignity and Liberty" passed first reading with the vote of 40 to 12, and the final reading
with the support of 32 MKs and 21 against. This is probably why Posner suggested that
231
United Mizrahi Bank, supra note 8, at 484 (Cheshin). See also Hornstein, Entrenchment of Provisions in
Basic Laws, 25 HAPRAKLIT 648 (1969) (arguing that the Knesset exhausted its constitutional authority by
enacting Basic Law: The Knesset in 1958).
232
A resolution or decision is inferior to legislation. It does not have to pass three reading as regular
enactments.
233
RUBINSTEIN & MEDINA, 5th ed., vol. 2, supra note 35, at 731.
234
See United Mizrahi Bank, supra note 8, at 495-501 (Cheshin's dissenting opinion quoting MKs' speeches
at the Knesset).
235
Karp, Power Struggles, supra note 42, at 326.
236
RUBINSTEIN & MEDINA, 5th ed., vol. 2, supra note 35, at 918.
237
Professor Rubinstein, who was one of the main initiators of the 1992 "Basic Laws" as a MK, wrote that
their enactment reflected wide consensus and their content was reached through agreement between the
secular and Orthodox Jewish political parties. However, even he admits, that "never has a Parliament adopt
a constitution in this way, against the government (and Prime Minister's) will, via a private Bill, in an
atmosphere of indifference on the part of the media." Amnon Rubinstein, The Knesset and the Human
Rights Basic Laws, 5 MISHPAT UMIMSHAL 339, 349 (1999).
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38
"only one-quarter of the Knesset's members voted for those laws."238
Thus, it is difficult,
if not impossible, to speak of an overwhelming support of MKs for the enactment of
these "Basic Laws." Barak himself further wrote in his scholarly work that the two
revolutionary 1992 "Basic Laws" passed without the public or media taking notice of
their enactment or significance. In an interview, he feared "the crisis of legitimacy
originated by the way in which the “Basic Laws” were enacted. They were not preceded
by enough preparation of the public. The constitutional revolution occurred in quiet,
almost in secrecy."239
The final content of the "Basic Laws" was also a matter of sheer luck or lack thereof.
The draft of "Basic Law: Human Dignity and Liberty" originally included a procedural
entrenchment requiring the support of an absolute majority of MKs to amend it.
However, at the last moment, one MK changed his opinion and this entrenchment fell
through.240
A day after the vote, Professor Amnon Rubinstein lamented in the Knesset the
fact that, as a result of massive absentees of Labor party members, this entrenchment
provision failed. He further carped that there was no precedent anywhere in the world for
that turn of events, in which such important constitutional provisions are enacted "by the
way." He asserted that the importance of the "Basic Law" stands in sharp contrast to the
absent of interest in it by the media and MKs.241
This is not the kind of broad, deep, and
decisive popular consent required to satisfy the requirements of the dualist model.
It has, however, been suggested that in 1994 the Knesset replaced "Basic Law:
Freedom of Occupation" with a new one, this time with the presence and support of 67 to
nine MKs on third reading.242
With this replacement, the Knesset also amended some
sections of "Basic Law: Human Dignity and Liberty." Thus, the broader support of MKs
in 1994 remedied the slim support granted to these "Basic Laws" in 1992.243
While
tempting, there are numerous difficulties with this assertion as well. It is questionable
whether ex post consent may amount to a dualist endorsement of constitutional change.244
Moreover, in 1994, the Knesset replaced "Basic Law: Freedom of Occupation" on the
238
Posner, Enlightened Despot, supra note 1. For discussion of the size of the majority, see RUBINSTEIN &
MEDINA, 5th ed., vol. 2, supra note 35, at 918.
239
Aharon Barak, The Knesset was never Sovereign, the People are the Sovereign, 24 HALISHKAH 8, 14
(1995). See also Karp, Power Struggles, supra note 42 , at 325 (quoting Barak's speech at Haifa U. of May
18, 1992 speaking of the fact that "not everyone is aware of it, but recently a revolution has occurred.)
240
Section 13 of the proposed Basic Law required an absolute majority of MKs for its amendment. On
second reading, however, the religious political parties proposed to omit the entrenchment and the vote was
27 to 27 in favor of their proposal, thus, the original draft should have remained intact. However, MK
Charlie Biton announced that he has mistakenly voted against the proposed change and in a recount of the
vote there was a majority of one in favor of the change. The entrenchment was rejected by a vote of 27 to
26. See DK (1992) 3793; RUBINSTEIN & MEDINA, 5th ed., vol. 2, supra note 35, at 921-22 and n. 40.
241
See DK (1992) 3852 (March 18, 1992).
242
See DK (1994) 5439 (March 9, 1994).
243
See Dan Meridor, Court Rulings in light of the Basic Laws, in CONSTITUTIONAL REFORM IN ISRAEL AND
ITS IMPLICATIONS - CONFERENCE PROCEEDINGS, JUNE 1994 69, at 70-71 (1995). See also RUBINSTEIN &
MEDINA, 5th ed., vol. 2, supra note 35, at 915.
244
In other works, I have contended that Bruce Ackerman allows for retroactive acquiescence for the
process, though not content, of dualist change. See Weill, Evolution, supra note 215, at 456-58. That is, if
there were dualist consent to the content of change at the time the change was adopted, then even if the
dualist process was not agreed to in advance, ex-post consent to the process is possible to grant it
retroactive legitimacy. But, in the Israeli case, the difficulty is that there was no dualist consent to the
content of change at the time it was adopted, as further elaborated in the text.
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39
advice of the Supreme Court that such a move was advisable if it wanted to guarantee
that a statute prohibiting the importation of non-kosher meat would survive constitutional
scrutiny.245
In the 1994 "Basic Law: Freedom of Occupation," the Knesset adopted an
override clause to the effect that the Knesset could enact an infringing statute explicitly
proclaiming its validity despite its conflict with the "Basic Law" with the support of an
absolute majority of MKs. This override would be valid for four years, unless a shorter
period was provided for in the infringing statute.246
The government, headed by Prime
Minister Rabin, just had to replace the "Basic Law" if it wanted to preserve the UltraOrthodox
political party, Shas, in the coalition.247
Thus, the 1994 "Basic Law: Freedom of Occupation" passed hastily, within less than
a month. The Knesset held its second and third readings on the same day.248
Some MKs
wrongly assumed that they were voting for the statute prohibiting the importation of nonkosher
meat rather than for the "Basic Law."249
Many of the most important provisions in
the “Basic Law” were not included in the original draft and appeared only in the second
and third readings, with MKs unaware of their change of content.250
Both Prime Minister
Rabin and Shas later "discovered" that the "Basic Law" they had voted for included
reference to the Declaration of Independence and felt "cheated." They had learned, after
their vote, of the "Basic Law's" declaration that the rights enumerated in it and in "Basic
Law: Human Dignity and Liberty" would be respected in the spirit of the principles
embodied in the Declaration of Independence.251
This Shas and Rabin never intended to
enact or so they claimed. Because of the reference to the Declaration of Independence in
the amended "Basic Law," Shas never returned to the coalition despite the fact that the
"Basic Law" was amended only to enable its return.252
Interestingly, CJ Barak played a crucial and unusual role in drafting this "Basic Law."
In a letter to the Knesset, he advised MKs of the difference between infringement and
amendment in constitutional jurisprudence, and suggested the resulting amendments
necessary to align with this distinction.253
In fact, the government reintroduced a draft of
"Basic Law: Freedom of Occupation" following Barak's letter in which it adopted many
of his recommendations.254
Apparently, MKs were clueless about their constitutional role
without this extra-judicial assistance. With such legislative (or constitutional) history,
even the size of the majority of MKs supporting the enactment in 1994 of "Basic Law:
Freedom of Occupation" on third reading cannot offer a solid dualistic ground for the
"Basic Law's" enactment.
245
HCJ 3872/93 Meatrael v. Prime Minister and Minister of Religions, 47 (5) P.D. 485, 505 (1993) (Isr.)
[hereinafter Meatrael]. The decision was given on October 22, 1993.
246
Basic Law: Freedom of Occupation, 1994, § 8.
247
Meatrael, supra note 245; RUBINSTEIN & MEDINA, 5th ed., vol. 2, supra note 35, at 922-23.
248
The government publicized the draft of the Basic Law on February 14 and the Basic Law had become
law already on March 9, 1994. See Basic Law: Freedom of Occupation, 1994, S.H. 90 (March 10, 1994).
249
See Ariel Bendor, Defects in the Enactment of Basic Laws, 2 MISHPAT UMIMSHAL 443, 445-446 (1994)
[hereinafter Bendor, Defects].
250
Id. at 445, 447.
251
Basic Law: Freedom of Occupation, 1994, § 1 and the amended new § 1 of Basic Law: Human Dignity
and Liberty.
252
RUBINSTEIN & MEDINA, 5th ed., vol. 2, supra note 35, at 924.
253
See Barak, Amendments, supra notes 132 & 162 and accompanying text.
254
See Draft of Basic Law: Freedom of Occupation (Amendment) (A Substitute Draft), 1994, Draft
Statutes 289 (February 14, 1994).
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40
The low attendance and support of MKs to the enactment of the two revolutionary
"Basic Laws" was typical.255
For most "Basic Laws," there is no official record of the
number of MKs supporting their enactment, and of the eleven "Basic Laws," only partial
data exists of MKs' vote with regard to just five of them.256
No one thought that the
breadth and depth of MK support for “Basic Laws’” enactment really mattered.
As noted, the Knesset also did not treat the "Basic Laws" with the reverence usually
accorded to a formal constitution. It frequently amended "Basic Laws" to adjust to new
political conditions—including two that were completely replaced within a short period.
For example, the 1992 "Basic Law: Freedom of Occupation" was replaced to suit
coalition considerations, as explained above. "Basic Law: The Government" of 1968
fared worse. The Knesset completely replaced it twice, first in 1992 to change its
parliamentary scheme into a mixed parliamentary system, such that the Prime Minister is
elected separately and independently from the Knesset in the hope of enhancing the
Prime Minister's authority and lessening the political bargaining power of small political
parties to extract benefits for their support of the government. However, this new "Basic
Law" proved to be a disaster, creating a splinter of political parties in the Knesset. The
People then split their vote and gave the smaller political parties enhanced power in the
bargain to form a government that was still dependent on the Knesset for confidence. The
Knesset thus replaced it again, in 2001, with another "Basic Law," returning to the old
system of elections to parliament alone.257
Not only were some "Basic Laws" replaced, but those that survived were subject to
frequent amendment as well. "Basic Law: The Knesset" has been amended 39 times since
1958. The Knesset often adopted several amendments in the same year. Thus, for
example, the Knesset amended "Basic Law: The Knesset" five times in 1996, four times
in 2000, and six times in 2001 alone. The new "Basic Law: Freedom of Occupation" has
been amended twice since its replacement in 1994— in 1998 specifically to permanently
override the "Basic Law" to allow the prohibition on importation of non-kosher meat,
thereby exempting that statute from constitutional scrutiny.258
The Knesset has amended
"Basic Law: The President" seven times since 1964. The frequency and haste of
amendments are further indications that the Knesset views "Basic Laws" as being on par
with regular legislation.
Moreover, "Basic Laws" were amended to fit whatever political need arose. In this
respect, yet again, the political story leading to the replacement of "Basic Law: Freedom
of Occupation" is not unique. "Basic Law: The Government" of 1992, for example,
originally restricted the number of appointed ministers to eighteen to prevent oversized
governments. This "Basic Law" was then amended in 1999 to enable Ehud Barak to form
a large-sized government, and a petition to the High Court against the inappropriate
255
Cf. Medina, Four Myths, supra note 1, at 2 ("It is also false that only a quarter of the Knesset Members
supported the Basic Laws—the bulk of the Basic Laws were passed by a decisive majority.").
256
There is no record on MKs' votes on Basic Law: The People’s Lands, 1960, S.H. 56; Basic Law: The
President of the State, 1964, S.H. 118; Basic Law: The Government, 1968, S.H. 214, except for the vote on
first reading of 51 to 23 MKs (DK (1966) 2533); Basic Law: The State Economy, 1975, S.H. 207; Basic
Law: The Army, 1976, S.H. 154; Basic Law: The Judiciary, 1984, S.H. 78; and Basic Law: The State
Comptroller, 1988, S.H. 30.
257
For the history of enactment, see RUBINSTEIN & MEDINA, 5th ed., vol. 2, supra note 35, at 687-730,
RUBINSTEIN & MEDINA, sixth ed., vol. 2, supra note 35, at 821-79.
258
See Basic Law: Freedom of Occupation (Amendment no. 2), S.H. 1662 at 178 (March 19, 1998).
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41
motive for amending the "Basic Law" was rejected.259
This is daily, not constitutional,
politics.
A manifestation of the Knesset's treatment of the Basic Laws may be seen in the
recent enactment of a new Basic Law entitled "Basic Law: The State's Budget for the
Years 2009 and 2010 (Special Provisions) (Provisional Enactment)" passed on a single
day (April 6, 2009) in all three readings with the coalition's support alone. It was enacted
on the eve of Passover (celebrated in Israel on April 8, 2009) without any preceding
debate in any of the Knesset's permanent committees, which were not yet established by
the new elected Knesset. This Basic Law amended provisions in both "Basic Law: The
Knesset" and "Basic Law: The State Economy," by providing that the Knesset will pass
in 2009 a dual-year budget for the years 2009-2010.260
The government, which initiated this legislation, asserted that it was necessary to
address the severe economic crisis Israel is facing, like the rest of the world. However,
since Israel has a parliamentary system, this Basic Law de facto entails that the Knesset's
supervisory power over the government is severely curtailed. Since the government is not
elected independently of the Knesset, it is crucial that at least once a year it is required to
actively gain the legislature's confidence through its support of the annual budget. In
Israel, as in other parliamentary-system countries, if a government fails to gain the
legislature's confidence for its budget, it must hold elections.261
But, with the passage of
this new unique creature in Israel's legislative history—a provisional Basic Law—the
new government of Prime Minister Netanyahu has guaranteed itself two quiet years from
Knesset's active supervision. This is how lightly Israel's most sacred provisions dealing
with the structure of government are treated.
As noted above, the Knesset enacted "Basic Laws" and regular laws via the same
legislative process consisting of three readings, as is typical of a monist not dualist
constitutional system. A petition to the Israeli Supreme Court against this practice was
rejected in 1977, because the difference between a "Basic Law" and a law was "mere
semantics."262
In fact, the justices acknowledged this constitutional reality in United
Mizrahi Bank. In response, Barak stated that the past cannot be undone but going forward
after United Mizrahi Bank the Knesset should amend "Basic Laws" only in other "Basic
Laws."263
At the time of United Mizrahi Bank, however, there was a blur of constitutional
and regular law as is typical of monist constitutional systems. In fact, since Barak
expressed his views that entrenchment in regular statutes is problematic on democratic
grounds, it follows that a similar problem exists with respect to entrenchment in "Basic
Laws" in Israel due to their monist process of enactment.
259
HCJ 5160/99 Movement for Quality Government v. Constitution, Legislation and Justice Committee,
P.D. 53 (4) 92 (1999) (Isr.). See also RUBINSTEIN & MEDINA, supra note 35, at 835.
260
For the Knesset's discussions on this Basic Law, see
http://www.knesset.gov.il/plenum/data/01168009.doc#_Toc228181954. It should be noted that MK Dan
Meridor, who was the Minister of Justice at the time the 1992 "Basic Laws" were enacted and who has
treated their passage as a constitutional revolution, voted in support of this provisional Basic Law in 2009.
261
Basic Law: The Knesset, § 36a. See also COLIN TURPIN, BRITISH GOVERNMENT AND THE
CONSTITUTION; TEXT, CASES AND MATERIALS 447 (fifth ed., 2002); A.W.BRADLEY &K.D. EWING,
CONSTITUTIONAL AND ADMINISTRATIVE LAW 218 (12th ed., 1997).
262
HCJ 60/77 Ressler v. Chairman of the Central Elections to the Knesset Commission, 31 (2) P.D. 556,
560 (1977) (Isr.).
263
United Mizrahi Bank, supra note 8, at 406-07.
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Furthermore, only in United Mizrahi Bank do the justices come up with a test for
identifying what is part of the Israeli formal Constitution. The very necessity to define
what comprises Constitution arose because the Knesset did not treat constitutional law
differently than regular law prior to United Mizrahi Bank. Barak suggested that, if the
enactment is entitled "Basic Law" without a year mark, then it will be construed as part of
the formal Constitution in accordance with the Harrari Resolution.264
Barak's "technical title" test could have worked, but Barak was not satisfied with this
single factor. In dicta (to the dicta), he qualified this "technical title" test twice. He first
suggested that some of the enactments of the First Knesset might be part of the formal
Constitution, even though they lack the title "Basic Law." Barak had in mind mainly two
statutes, the Law of Return enacted in July 1950 and the Statute of Equal Rights for A
Woman enacted in 1951.265
The difficulty with his reasoning is that these two Acts were
enacted after the Harrari Resolution was decided in June 1950, but the First Knesset did
not view them or title them "Basic Laws." Although Barak's dualism rests on the notion
that later Knessets enjoy the same authority as the First Knesset, he himself treated the
First Knesset differently. Even in the United Mizrahi Bank opinion, his dualist approach
required some fine tuning to accommodate his higher goals.266
Bark secondly qualified his title test by suggesting that there may be an
unconstitutional constitutional amendment or an abuse of the Knesset's constituent
authority.267
If the first qualification broadens what may be included in the formal
Constitution, the latter qualification attempts to narrow those options. Barak did not
clarify, however, the parameters for a judicial decision that such abuse did indeed occur.
He left that determination for future court decisions. However, with this second
qualification, he laid the theoretical grounds for the courts to ultimately decide the
definitive content of the Israeli formal Constitution. Yet, his reasoning again is not
entirely consistent with dualism for two reasons. First, it leaves to the Court rather than
the People to ultimately decide the content of the Constitution. Second, on a related point,
under a dualist approach based on popular sovereignty, the People reserve the power to
alter the Constitution, and may even do so by procedures that may violate the
constitutional amendment process as defined in the constitutional text, as long as the
process used for amendment satisfies the substantive requirements of dualism as
elaborated above—primarily, it must manifest broad, deep, and decisive popular consent
for change. Under dualism, the People's power to alter the constitution is treated on par
with their original power to create a constitution,268
while under Barak’s approach, the
264
Id. at 403.
265
Id. at 294 (Shamgar), 406 (Barak). See also BARAK, INTERPRETATION, supra note 25, at 46. Shamgar
specifically explained in dicta that, because the First Knesset was primarily a Constituent Assembly, its
enactments may be classified based on their content, not their title. If their content is constitutional, they
may be part of the formal Constitution. Both Shamgar and Barak, however, chose to leave this issue open
for future court decisions.
266
It should be emphasized that, so far, the Law of Return and the Statute of Equal Rights for A Woman
are not treated as part of the formal Israeli Constitution. Thus, Barak's qualification of the title test is still
dicta.
267
United Mizrahi Bank, supra note 8, at 406, 408.
268
That the People included in the Constitution explicit provisions governing its amendment only restricts
their representatives (constituted power) when amending the document. But the People themselves may
alter it by other means as well. See, e.g., ACKERMAN, FOUNDATIONS, supra note 22; ACKERMAN,
TRANSFORMATIONS, supra note 22; Waldron, Judicial Power, supra note 215. Others have vehemently
© Rivka Weill, Sui Generis? The Hybrid Israeli Constitutional Experience,
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43
power to amend is necessarily inferior to the power to create the Constitution in the first
place.269
Furthermore, constitutional theorists have long recognized that de facto many
constitutional changes occur outside the regular mechanisms prescribed in the
constitution for change.270
Barak's approach to constitutional amendment may suggest
that, in the final analysis, Barak may be a foundationalist more than a dualist, as will be
further illustrated in Part IV below.
In support of his dualist opinion, we return to Barak's suggested three alternative
theoretical models: Kelsen's basic norm; Hart's rule of recognition; and Dworkin's "best
fit" interpretation.271
None of these models, however, supply the desired answer.272
At
most, they assist in defining the right question. That every constitutional system has a
basic norm does not lead to the conclusion that dualism is the basic norm. Furthermore,
that courts are one of the political players defining the ultimate "rule of recognition" does
not lead to the conclusion that the other branches of government and the People view
dualism as the ultimate "rule of recognition." That it is most desirable to adopt an
interpretation that "best fits" Israel's constitutional and social history grants judges almost
an aplatonian role to decide for the People what is best for them. This, in fact, has been
the harsh criticism raised against Dworkin's work in general.273
Surprisingly, Barak
neglected to elaborate what the theory of dualism entails even while he concluded that
Israel has a dualist Constitution. To reach such a conclusion, he might have examined
Israel's constitutional history, with a view toward the dualist requirements over any other
model. The three models he did offer led him to assume what needed to be proven.
Barak may have been partly driven to his United Mizrahi Bank opinion due to a belief
that the 1992 "Basic Laws" dealing with individual rights was a constitutional
opportunity that should be seized. The young Israeli State could just not afford to
squander that opportunity,274
with so many already gone. The Declaration of
Independence, with its enumeration of rights, could have served as a constitution, but
debated the proposition that constitutional amendment may legitimately occur in violation of the
Constitution's provisions governing its amendment. See, e.g., Tribe, Taking Text, supra note 217.
269
Barak relied on C. Klein, The Constitutional Power in Israel, 2 MISHPATIM 51 (1970) (discussing the
French distinction between original and derivative constitutional power).
270
See, e.g., ACKERMAN, FOUNDATIONS, supra note 22; ACKERMAN, TRANSFORMATIONS, supra note 22;
Sanford Levinson, How Many Times Has the United States Constitution Been Amended? (A) <26; (B) 26;
(C) 27; (D) >27: Accounting for Constitutional Change, in RESPONDING TO IMPERFECTION: THE THEORY
AND PRACTICE OF CONSTITUTIONAL AMENDMENT 13 (Sanford Levinson ed., 1995); David A. Strauss, The
Irrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457 (2001); Peter H. Russell, Can the
Canadians Be a Sovereign People? The Question Revisited, in CONSTITUTIONAL POLITICS IN CANADA AND
THE UNITED STATES 9, 9-34 (Stephen L. Newman ed., 2004) [hereinafter CONSTITUTIONAL POLITICS]; Ian
Greene, Constitutional Amendment in Canada and the United States, in CONSTITUTIONAL POLITICS, id., at
249–271.
271
See supra Part III.A.
272
For similar criticism, see Salzberger, Constituent Assembly, supra note 16.
273
Dworkin himself speaks of the heroic judge Hercules. DWORKIN, LAW'S EMPIRE, supra note 129.. For
criticism, see, e.g., Richard A. Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV.
1637 (1998).
274
Bruce Ackerman, The Lost Opportunity?, 10 TEL AVIV U. STUD. IN LAW 53 (1990) discusses the fact
that, although Israel had all the features of a "fresh start" constitutional scenario, its founders risked missing
the window of opportunity entirely.
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instead the Court treated it as legally non-binding.275
The First Knesset could have
enacted a constitution, but it decided not to decide.276
The Bergman decision, in 1969,
could have laid a solid ground for constitutionalism and judicial review, but was instead
laconic.277
If this opportunity, too, went by, Barak portrayed a very bleak constitutional
horizon for Israel. He expressed grave doubts about the ability of Israel ever, in the
future, to adopt a constitution.278
This pessimism, however, warrants close examination. Comparative constitutional
experience does suggest that it is more difficult to adopt a constitution after the founding
period.279
It further instructs that often the adoption of a dualistic constitution is
accompanied by violence, turmoil, and the break from the regular legal rules of the
system.280
It does not suggest, however, that dualistic constitutions cannot be adopted in
stages, in an evolutionary fashion. It does not imply that a monistic constitutional system
cannot transform into a dualistic one by the use of referenda or gradually. There is
nothing irreversible about the non-use of referenda in the past in Israel.281
Barak's great
worry regarding Israel's constitutional future ultimately reflected his own heart's desire
that Israel would have a formal dualistic Constitution. But, the "ought" does not
necessarily reflect the "is," however desired it might be.
In an attempt to rescue what he perceived as a dire situation for Israel, Barak made
three leaps in his United Mizrahi Bank opinion. First, he made the following assertion: If
Israel has a Constitution then it is, by its very nature, supreme. Second, from its
supremacy necessarily derives the courts' judicial review power over primary legislation.
Third, since "Basic Laws" are recognized as Israel's Constitution in United Mizrahi Bank,
they are both supreme and grant the power of judicial review.282
In the American counterpart, Marbury v. Madison, the Court made only one leap. No
one disputed that the U.S. had a Constitution. There was also no doubt as to its normative
supremacy, and it even had an explicit clause to such effect. The Court "only" derived
from its supremacy that it enjoyed the power of judicial review.283
This was not the only
possible outcome.284
From comparative perspective, there are other available
enforcement mechanisms, including politics or “shaming” and a special court that
functions as part of the legislative branch.285
The Israeli United Mizrahi Bank decision is
275
See, e.g,. HCJ 7/48 Elkarbotly v. Minister of Defense, 2 P.D. at 5 (Isr.). See also M. Ben-Porat, A
Constitution for the State of Israel: Whether Desirable and Feasible?, 11 TEL AVIV. U. L. REV. 17, 19
(1985) (writing of the lost opportunity to recognize the Declaration as part of the Israeli Constitution). The
Declaration was also signed by representatives of all the Jewish fractions in the Israeli society. Ben Gurion
doubted whether any further consensus could be reached than that achieved in the Declaration. See DK
(1950) 820.
276
See discussion of the Harrari Resolution supra Part I.B.
277
See discussion of the Bergman decision supra Part II.B.
278
See supra notes 196 & 197 and accompanying text.
279
See, e.g., ACKERMAN, REVOLUTION, supra note 28; Bruce Ackerman, The Rise of World
Constitutionalism, 83 VA. L. REV. 771 (1997), K.C. WHEARE MODERN CONSTITUTIONS 8-9 (1951).
280
See, e.g., ACKERMAN, FOUNDATIONS, supra note 22; ACKERMAN, TRANSFORMATIONS, supra note 22.
281
See Weill, Evolution, supra note 215.
282
See supra Part III.A.
283
See supra introduction, especially note 4 and accompanying text.
284
See, e.g., William W. Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1 (1969)
(offering competing interpretations to the supremacy clause) .
285
See, e.g,. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L. J. 1346 (2006)
[hereinafter Waldron, Judicial Review]; Victor Ferreres Comella, The Consequences of Centralizing
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45
much bolder. Not only did it read judicial review power into the Constitution like its
American counterpart, but it also read a supremacy clause into it. But, from the existence
of a formal constitution, we cannot necessarily derive that it is supreme.286
While Barak
wrote in celebratory language that the Court humbly joins the other branches of
government and the People in recognizing the existence of a formal Israeli Constitution,
the Court was actually making three very defining and significant decisions regarding
Israel's constitutional future.
Evidently, Barak was not satisfied with deriving judicial review from the very nature
of a constitution alone--the existence of which was announced for the first time in that
very decision. As stated above, he offered many additional justifications in support of
judicial review. Thus, if judicial review did not derive from the nature of a constitution,
then he suggested that it can be derived from a Marburian justification.287
However, the
Marburian justification rests on dualism (as based on popular sovereignty) and may not
be easily transplanted to Israel's constitutional history. Barak additionally asserted that
judicial review may also derive from the definition of democracy as “substantial” and as
protective of human rights.288
But such a redefinition--from "majority rule" to that of
"protector of human rights"--can be contested.289
It again shows that Barak is a
foundationalist rather than a dualist, as will be further discussed in part IV below. Barak
also suggested that the rule of law and separation of powers support the power of judicial
review. But both principles may exist in constitutional systems that lack judicial
review.290
Judicial review simply does not derive from them alone. Thus, none of the
rationales suggested by Barak prescribe that Israeli courts have the power of judicial
review. Moreover, MKs have specifically debated whether to grant judicial review power
to the courts and decided not to include an explicit provision to that effect in the 1992
"Basic Laws."291
In a dualistic system based on popular sovereignty, it is better to entrust
this fundamental decision with the People. But, the United Mizrahi Bank decision made it
for them.
C. The Great Controversy with Justice Cheshin's Dissenting Opinion
Even common law judicial systems strive to reach unanimity on the bench when dealing
with defining contentious constitutional issues.292
But, in sharp contrast to the unanimous
Constitutional Review in a Special Court: Some Thoughts on Judicial Activism, 82 TEX. L. REV. 1705
(2003-04); Weill, Evolution, supra note 215; Gardbaum, supra note 33; DORSEN, supra note 9, at 99-113.
286
See, e.g., Gardbaum, supra note 33; LAURENCE H. TRIBE, FIVE REIGNING MYTHS ABOUT
CONSTITUTIONALISM AND JUDICIAL REVIEW (1994); CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS
IN THE CONTEMPORARY WORLD (Greenberg et al. eds. 1993).
287
See supra Part III.A.
288
Id.
289
See, e.g., Waldron, Judicial Review, supra note 285; Posner, Enlightened Despot, supra note 1.
290
The British constitutional system is a prime example. See A. W. BRADLEY & K. D. EWING,
CONSTITUTIONAL AND ADMINISTRATIVE LAW 78-103 (13th ed., 2003). Furthermore, even before the United
Mizrahi Bank decision, Israel's justices treated separation of powers and the rule of law as central features
of the Israeli constitutional system. See RUBINSTEIN, fourth ed., vol. 1, supra note 35, chs. 10-11. It should
be noted that, under a parliamentary system, the understanding of separation of powers differs from the
American model of a separate elected executive.
291
Karp, Power Struggles, supra note 42, at 365-66 (citing DK (1992) 3783-88).
292
See supra note 19.
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Marbury decision, justice Cheshin dissented, arguing that Israel lacked a formal
Constitution, whether monist or dualist.293
Cheshin disputed Barak's dualist opinion
mainly on factual historical grounds. He agreed with Barak that the dualist, rather than
monist, model was the one most appropriate on which to found an Israeli Constitution.
He too shared his fellow justices' desires that Israel would adopt a formal Constitution.
He just did not accept that Israel had already done so.294
Cheshin bluntly accused his fellow justices of inventing a formal Constitution where
none existed.295
He explained that the adoption of a formal Constitution requires special
standing similar to Mount Sinai. That is, there should be no doubt in anyone's mind as to
who the founders are or what documents serve as parts of that formal Constitution. The
Constitution should be adopted at great mega-moments, when a national consensus can
be reached around its formation.296
This simply has not yet occurred in Israel. In other
words, until the United Mizrahi Bank decision, no one knew that Israel had already
adopted a formal Constitution.
Cheshin analyzed MKs' debates in great detail to disprove Barak's assertion that they
were aware of adopting a constitution when enacting "Basic Laws." In contrast, Cheshin
asserted that MKs were at most split as to the constitutional ramifications of the "Basic
Laws." Cheshin argued that the more suitable interpretation was that MKs treated "Basic
Laws" on par with regular laws.297
He further argued that the Court too had had no clear
vision of the status of "Basic Laws" prior to United Mizrahi Bank. Certainly, it did not
treat them as part of a formal dualist Constitution.298
Cheshin also suggested that Israeli
legal scholars were divided regarding the question of whether the Knesset enjoys
constituent authority, let alone the question of whether it exercised such authority when
enacting "Basic Laws."299
In light of the lack of clarity and consent regarding these
profoundly defining questions, Cheshin concluded that it was simply premature for the
Court to declare the existence of a formal Israeli dualist Constitution.
Cheshin further accused Barak of misuse of terminology in his opinion. He claimed
that the enactment of "Basic Law: Human Dignity and Liberty" and "Basic Law:
Freedom of Occupation" did not rise to the level of a constitutional revolution. Rather,
their passage should be treated as part of evolution of an Israeli monist material
Constitution. He argued that his generation of justices should be humble and realize that a
judge-made interpretive constitution existed before them. Their decisions were only part
of the common law process of developing that very Constitution.300
Cheshin thus concurred with Barak's opinion that the dualist model was best suited to
a formal Israeli Constitution. He, however, concurred with Shamgar's opinion that
currently Israel enjoys only a monist Constitution. But, his understanding of monism
sharply differed from Shamgar's. Under Cheshin's perception of monism, no formal
293
In fact, CJ Marshall's strategy for enhancing the United States Supreme Court's stature was to write
unanimous opinions by himself. See Donald G. Morgan, The Origin of Supreme Court Dissent, 10
WILLIAM & MARY Q. 353 (1953).
294
United Mizrahi Bank, supra note 8, at 518-19.
295
Id. at 526.
296
Id. at 473-75.
297
Id. at 482-509, 521.
298
Id. at 513-15.
299
Id. at 510-13.
300
Id. at 565-67.
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Constitution may be adopted. Rather, the Knesset was sovereign and every Knesset was
as sovereign as its predecessors. Thus, no Knesset could bind its successors. The Knesset
might entrench statutes, regular or Basic, as long as the entrenchment did not violate the
democratic principle of majority rule. In other words, it was not true entrenchment. Thus,
the most that a Knesset could do is require an absolute majority of MKs to undo an
enactment. Statutes requiring a higher majority of MKs to repeal them would accordingly
be interpreted as requiring an absolute majority. In this way, the Knesset's intent to
tighten the requirements for repeal would be respected without defying majority rule.301
Under Cheshin’s approach, not only was procedural entrenchment subject to majority
rule, but substantive entrenchment as well. Thus, substantive entrenchment meant that the
Knesset could not repeal the entrenched statute absent-mindedly. It should rather be a
self-conscious public act. The Knesset would have to take responsibility for its actions.
The Knesset could either fulfill the requirements enumerated in the substantive
entrenchment provisions or explicitly repeal the entrenched statute. Implicit repeal simply
would not do.302
Cheshin's dispute with Shamgar and Barak must be translated into operative grounds.
First, for Chesin, even a regular statute may repeal a "Basic Law." As far as he is
concerned, "Basic Laws" are no different than regular laws.303
In contrast, Barak and
Shamgar require that amendments to "Basic Laws" be accomplished only in other "Basic
Laws."304
Second, for Cheshin, an explicit repeal is sufficient to overcome substantive
entrenchment in "Basic Laws." For Barak, an explicit repeal in breach of substantive
entrenchment provisions would only assist the Court in deciding the unconstitutionality
of the breaching statute. If the Knesset itself declared that it did not fulfill the
requirements of substantive entrenchment, why should he argue otherwise?305
Third, for
Cheshin, a procedural entrenchment (whether in a "Basic Law" or in a regular statute)
that exceeds the requirements of an absolute majority would merely be interpreted as a
requirement for absolute majority. For Barak, if the entrenchment appears in a "Basic
Law," it may very well be valid. For him, the whole idea of a Constitution is to be antimajoritarian
and restrict majority rule. However, if the entrenchment appears in a mere
regular statute, even a requirement for an absolute majority may not be valid. Barak was
undecided regarding the question whether MKs have the right to abstain. If they do, then
a requirement of absolute majority may infringe upon MKs' right to be undecided.306
Certainly, if the entrenchment in a regular statute exceeds absolute majority, it would be
undemocratic and thus invalid. The Knesset, in its role as a legislative assembly, enjoys
no superior authority over its successors.307
So far, these operative differences between the justices have not been tested
empirically. De facto, the Knesset had not created a situation where such differences bear
significance. Instead, in four subsequent decisions that implemented the United Mizrahi
Bank dicta, by declaring statutes unconstitutional, justice Cheshin concurred without
writing a separate opinion. Those decisions did not discuss anew any theory that might
301
Id. at 529-47.
302
Id. at 551-63.
303
Id. at 563-64.
304
See supra notes 167 & 263 and accompanying text.
305
United Mizrahi Bank, supra note 8, at 409 (CJ Barak).
306
Id. at 411.
307
See supra note 183 and accompanying text.
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justify the exercise of judicial review, relying instead on United Mizrahi Bank.308
If
Cheshin held that Israel lacked a formal Constitution, how could he concur in striking
down statutes? The explanation must be as follows.
In his United Mizrahi Bank opinion, Cheshin concurred that the Court may exercise
judicial review power over primary legislation. He did not believe that the existence of a
formal Constitution was a prerequisite for the exercise of such power. Rather, he
suggested that the Court may exercise judicial review in order to enforce "manner and
form" restrictions that the Knesset imposed upon itself.309
The Knesset was authorized to
set its own internal proceedings rules. Those included its authority to require an absolute
majority to repeal a statute, quorum, or "explicit repeal" requirements. He thus translated
any restriction that the Knesset imposed upon itself into a mere procedural, "manner and
form" one. Substantive entrenchment was merely a requirement for an explicit repeal,
since the Knesset lacked authority to bind its successors to legislation. Any procedural
entrenchment was merely a quorum requirement that did not exceed the requirement of
an absolute majority, since the Knesset could not violate majority rule. Once the Knesset
imposed such internal proceedings rules upon itself, any statute enacted in violation
thereof was not a "statute." The Court was authorized to so declare.
Prima facie, Cheshin's theory—limiting the legislature's self-entrenchment power to
majority rule and construing substantive entrenchment as merely requiring explicit repeal
of prior legislation—is very attractive. Majority rule comports with democracy. Explicit
repeal guarantees that the breach of entrenchment is done self-consciously and in the
public eye. It necessitates public deliberation and extracts a political price from the
breaching Parliament. It is a form of accountability and a shaming mechanism.310
It
308
HCJ 1715/97 Lishkat Menahalei Haskaot in Israel v. Minister of Treasury, 51 (4) P.D. 367 (1997) (Isr.)
(finding the regulation of brokers unconstitutional with regard to those practicing in the field for a
substantial time) ; HCJ 6055/95 Tzemach v. Minister of Defense, 53(5) P.D. 241 (1999) (Isr.) (finding the
detention of soldiers to up to 96 hours without appearance before a magistrate unconstitutional); HCJ
1030/99 MK Oron v. Chairman of Knesset, 56(3) P.D. 640 (2002) (Isr.) (finding the law legalizing existing
pirate radio stations unconstitutional); HCJ 1661/05 Hamoeza Haezurit Hof Aza v. Israeli Knesset, 59(2)
P.D. 481 (2005) (Isr.) (finding the compensation provisions for evacuation of Gaza settlements
unconstitutional). It should be noted that after Cheshin's retirement, the Court invalidated a provision of a
statute also in HCJ 8276/05 Adalah—The Legal Center for Arab Minority Rights in Israel v. Minister of
Defense (2006) (unpublished yet) (finding a provision in a statute exempting the State from tort liability for
acts done in hostility areas, that are not war acts, unconstitutional).
It should also be noted that it has been debated how to interpret the HCJ 7052/03 Adalah—The Legal
Center for Arab Minority Rights in Israel v. Minister of Interior Affairs (2006) (unpublished yet) dealing
with the constitutionality of a provisional statute severely restricting entrance to Israel of people from
belligerent areas, even when those are married or parents to Israeli citizens. According to the result of the
decision, the statute was found constitutional. But, according to the reasoning, the minority finding the
statute unconstitutional may have prevailed. One of the justices joining the majority in result, Justice Levi,
did so while suggesting that the Knesset must amend the statute for it to survive constitutional scrutiny in
the future. This decision was one of the rare cases in which CJ Barak wrote a minority opinion.
309
United Mizrahi Bank, supra note 8, at 530-35. For literature discussing "manner and form," see supra
notes 29 & 178 and accompanying text. See also infra notes 311 - 316 and accompanying discussion.
310
Scholars usually discuss shaming of individuals, but see, Berthold Rittberger and Frank
Schimmelfennig, Explaining the Constitutionalization of the European Union, 13 J. EUR. PUB. POL. 1148
(2006) (suggesting that community shaming enabled European constitutionalism). For critique, see R.
Daniel Kelemen, Comment: Shaming the Shameless? The Constitutionalization of the European Union, 13
J. EUR. PUB. POL. 1302 (2006).
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respects, however, the ultimate democratic authority of the legislature to repeal its
predecessors’ legislation by majority vote.
It should be noted that this position of Cheshin relies on the "new view" of
parliamentary sovereignty as allowing "manner and form" restrictions on Parliament's
power to legislate.311
However, the very name "manner and form" is taken from the
Colonial Laws Validity Act of 1865, which reflected manner and form restrictions
imposed by the British Imperial higher outside authority on colonial legislators. It is not
an example of internal self-limits imposed on Parliament by its own actions.312
In
contrast, "manner and from" restrictions that are self-imposed suffer from the "selfreference"
problem identified by Alf Ross.313
At times such requirements were not
imposed on noncompliant parliaments by the courts in the Anglo-American world.314
"Manner and form" theory also assumes that as long as Parliament legislates according
to existing procedures of legislation, it may even amend the procedures required to enact
law. However, as the theory has been utilized, rather than using "manner and form" to
redefine Parliament's procedure in general, "manner and form" restrictions are used with
regard to specific enactments. Thus, while the essence of "manner and form" theory states
that Parliament may restrict its successors as to the form of enacting law but not the
content of law, de facto "manner and form" requirements are used today primarily to
restrict the legislature with regard to specific contents—mainly constitutional issues. But
with regard to content, the theory has always claimed that Parliament may not bind its
successors to specific agendas. This manifestation of "manner and form" contradicts the
very essence of parliamentary sovereignty as having a monist tier of enactments.
In addition, Cheshin's approach raises the same concerns debated in Britain and New
Zealand nowadays whether requirements of "explicit repeal" are compatible with
parliamentary sovereignty.315
The difficulty arises because courts would interpret a later
statute to impliedly repeal an earlier one only when the two cannot be reconciled through
interpretation. It is considered a "last resort" tool in common law. If such circumstances
arise, then shouldn't the last will of the sovereign legislature govern despite its
predecessor's requirement for explicit repeal?
Despite these difficulties, "manner and form" restrictions have been lately advocated
in Commonwealth countries—notably New Zealand, Britain and Canada—as an
intermediate model between parliamentary sovereignty and supreme constitutions, useful
to protect individual rights and fundamental values, by requiring the legislature to
311
See, e.g., SIR W. IVOR. JENNINGS, THE LAW OF THE CONSTITUTION 152-53 (5th ed., 1959); R.F.
V.HEUSTON, ESSAYS IN CONSTITUTIONAL LAW 6-7 (2nd ed., 1964); Hamish R. Gray, The Sovereignty of
Parliament Today, 10 U. TORONTO L.J. 54 (1953-54); R. Elliot, Rethinking Manner and Form: From
Parliamentary Sovereignty to Constitutional Values, 29 OSGOODE HALL L. J. 215 (1991).
312
See Chander, supra note 178. See also M.H. Tse, The Canadian Bill of Rights as an Effective Manner
and Form Device: An Analysis of the Supreme Court of Canada Decision in Authorson v. Canada, 18
NAT'L J. CONST. L. 71 (2005).
313
Ross, supra note 170. See also Kahn, supra note 147 (asserting that entrenchment is possible only in
hierarchical relations).
314
See Tse, supra note 312. See also supra note 177.
315
See e.g. Thoburn v. Sunderland City Council [2003] Q.B. 151 (Div Ct.) (Laws LJ requiring explicit
repeal of statutes he characterized as fundamental); Rebecca Prebble, Constitutional Statutes and Implied
Repeal: The Thoburn Decision and the Consequences for New Zealand, 36 VICT. U. WELLINGTON L. REV.
291 (2009); Mark Elliott, Embracing, supra note 178; Andrew Butler, Implied Repeal, Parliamentary
Sovereignty and Human Rights in New Zealand, [2001] PUB. L. 586.
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publicly take responsibility for violating constitutional principles. Though such "manner
and form" requirements do not totally align with parliamentary sovereignty, they are
considered a small "price" to pay for enhanced protection of rights.316
But, if this is the
motive for recognizing the legitimacy of "manner and form" restrictions, then Cheshin,
no less than Shamgar and Barak, were pursuing a constitutional agenda.
Cheshin however did not tie his opinion of the validity of "manner and form"
restrictions to constitutional issues alone. Instead, he embraced the classic British monist
theory, but in a novel way that enabled the Court to enjoy the power of judicial review
while simultaneously declaring itself to be the Knesset's most humble servant. Without
acknowledging it, Cheshin's perception of monism sharply deviated from the traditional
Diceyan monism, under which legislative sovereignty and judicial review over primary
legislation could not co-exist.317
While the traditional Diceyan understanding is that it is
either the legislature or the courts that are supreme, not both, for Cheshin there was no
choice to make. Rather, the impossible was Israel's reality.
IV. FOUNDATIONALISM
We have shown that none of the three major judicial opinions offered in the United
Mizrahi Bank decision to explain Israel's constitutional development do it real justice.
Monism, suggested by the retiring CJ Shamgar, cannot establish the supremacy of the
constitution. Dualism, asserted by then CJ Barak, while desirable, is not supported by the
historical facts. Asserting that Israel lacks a formal Constitution yet its judiciary still
exercises judicial review over primary legislation, as suggested in Justice Cheshin's
dissent, is not convincing either. So, what is left? In this part, I propose a different theory-foundationalism--as
the theory that may better explain what has motivated the justices.
While this theory may have motivated the justices, probably because of its difficulties as
heretofore elaborated, they were not satisfied with offering it as the exclusive basis for
the emerging formal Israeli Constitution but coupled it with either monism (Shamgar and
Cheshin) or dualism (Barak).
A. The Missing Theory
So far we have established that all three theories offered in the United Mizrahi Bank
decision to explain Israel's constitutional development are problematic. Shamgar's monist
theory cannot account for why one Knesset should be supreme to its successors and bind
them with a constitution. Barak's dualist theory does not align, by his own admission,
with the idea that the Israeli constitutional revolution occurred in secret, the public
unaware of its occurrence. Cheshin's theory is an attempt to have one's cake and eat it
too. Cheshin announced that Israel lacks a formal constitution while enjoying all the
benefits characteristic of such a constitution, most notably judicial review over primary
legislation.
A fourth possible theory, never explicitly enumerated in United Mizrahi Bank, is
foundationalism. By foundationalism, I mean a theory under which some rights are so
fundamental as to be beyond the ability of either the legislature or the People to take
316
See e.g. Prebble, id. (citing British authorities); Tse, supra note 312, at 83 (citing Canadian authorities).
317
See supra note 102 and accompanying text.
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away. The guardians of these rights are the courts.318
Barak did hint in dicta of such a
theory in the United Mizrahi Bank decision when he suggested that the Court could find
some constitutional amendments unconstitutional, i.e., beyond the reach of even a
constituent authority.319
That is, the Court may review the content of constitutional
amendments to decide their validity. The Court may thus not only exercise judicial
review over primary legislation based on the supremacy of the "Basic Laws" decided in
United Mizrahi Bank decision, but it may further exercise judicial review over the content
of the forming Israeli "Basic Laws." Barak did not suggest which fundamental values or
principles constitutional amendments should conform to, or from what source he would
derive such values or principles.
Barak further suggested in dicta that, although the defining test for whether a statute is
part of the Israeli Constitution is technical (i.e., merely a question of whether it carries the
title "Basic Law") in the future a need may arise to use substantive criteria based on the
content of the statute. In other words, he did not exclude the possibility of misuse of the
title "Basic Law" by the Knesset. The Court might thus find that certain "Basic Laws" or
provisions within them do not "deserve" to be treated as constitutional.320
Barak relied on
both the famous Indian Kesavananda case and German constitutional jurisprudence to
justify his position.321
With both these propositions--the unconstitutional constitutional
amendment and misuse of the title "Basic Law"--Barak hinted that the basis of the Israeli
Constitution may be foundationalist, rather than dualist, after all.
Foundationalism also better explains Barak's assertions that the rule of law, by its
nature, justifies judicial review or that substantive democracy automatically entails it to
protect basic rights.322
Both assertions reveal a philosophy that necessitates judicial
review regardless of whether there exists a specific formal Constitution to expound. That
is also why Barak stated that anyone asserting that judicial review is undemocratic asserts
that the protection of human rights is undemocratic.323
Foundationalism may also align with Shamgar's assertions in United Mizrahi Bank
that there were inherent limits on the Knesset's self-entrenchment power. Not every
subject may be entrenched nor is any form of entrenchment constitutional. This
qualification was especially important under Shamgar's thesis that, by entrenchment, the
Knesset creates the Constitution. But Shamgar was undecided from what source he would
derive the principles that defined the restrictions on the Knesset's self-entrenchment
power.324
Monism does not offer such guidelines beyond maybe majority rule, as the
dissenting justice Cheshin pointed out.325
But, Shamgar had in mind different kinds of
restrictions on the Knesset's self-entrenchment power, since he felt quite comfortable
with even two-thirds majority requirement to amend some provisions in "Basic Law: The
318
For foundationalist approach, see, e.g., DWORKIN, LAW'S EMPIRE, supra note 129; RONALD DWORKIN,
TAKING RIGHTS SERIOUSLY (1978); T.R.S. ALLAN, CONSTITUTIONAL JUSTICE: A LIBERAL THEORY OF THE
RULE OF LAW (2001).
319
United Mizrahi Bank, supra note 8, at 394, 408.
320
Id. at 406.
321
United Mizrahi Bank, supra note 8, at 394 (citing Kesavande [sic] v. State of Kerala, 1973 A.I.R. 146
(India) and 6 BverfGE 32 (1957) (Germany)).
322
See supra note 207 and accompanying text.
323
United Mizrahi Bank, supra note 8, at 424.
324
See supra Part II.
325
See supra Part III.C.
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Knesset."326
It seems that with this dicta, Shamgar, too, was primarily relying on
foundationalism, and indeed he suggested that he might refer to "basic principles of our
system as a Jewish and democratic State."327
Surprisingly, for a theory that was never explicitly singled out by any of the justices,
foundationalism may unite not only Barak's and Shamgar's theses, but also that of the
dissenting justice Cheshin, as will be further elaborated below.
B. Historical Roots
A foundationalist approach is not foreign to Israel's constitutional development. It has
been repeatedly discussed in past judicial opinions, but so far has not been adopted as
part of Israel's positive law.
In the early years of Israel's founding, appellants asserted basic rights stemming from
natural law to challenge the validity of existing statutes, only to be rejected by the Court.
Thus, for example, Jewish couples who wished to marry under civilian ceremony, rather
than according to Jewish law, claimed that the 1953 statute imposing Jewish religious law
on every marriage and divorce of Israeli citizens and inhabitants infringed upon their
freedom of religion—or more precisely, their right to be free from religion.328
They were
denied a remedy because no concept of natural law was part of Israel's positive law. The
Court explicitly ruled that natural law could not prevail over explicit conflicting statutes,
despite the infringement on any natural rights.329
Scholars have attempted to describe the Yardor decision, given in 1964, as the first
decision to rely on foundationalism in reaching a result contrary to the explicit language
of a statute.330
In a majority opinion, the Court validated the Central Election
Commission's decision to disqualify the political party, El Ard, from competing in
elections to the sixth Knesset. The statute did not authorize the Commission to exclude a
political party based on the content of its platform and ideology. To the contrary, "Basic
Law: The Knesset" explicitly granted equal rights to all parties to compete at elections.331
Nonetheless, the Court ruled that Israel was not required to permit campaigning by
political parties that aimed to abuse the democratic laws to destroy the State from within
the Knesset.332
Rather, Israel could protect itself just as the Germans protect themselves
from the revival of Nazism.333
326
United Mizrahi Bank, supra note 8, at 292.
327
Id. at 293.
328
Jurisdiction of Rabbinical Courts (Marriage and Divorce) Law, 1953, S.H. 165.
329
C.A. 450/70 Rogozinski v. State of Israel, 26 (1) P.D. 129 (1972) (Isr.).
330
E.A. 1/65 Yardor v. Chairman of Central Elections Committee to the Sixth Knesset, 19(3) P.D. 365
(1965) (Isr.) [hereinafter Yardor]. For scholarship's treatment of the case along the lines suggested in the
text, see, e.g,. Shlomo Guberman, Israel's Supra-Constitution, 2 ISR. L. REV. 455 (1967).
331
Basic Law: The Knesset, §§ 4 and 6.
332
Yardor, supra note 330, at 384-90.
333
In Germany, this is treated as "militant democracy." In other places, it is treated as "protective
democracy." For discussion of the inherent democratic dilemma in excluding political parties in a
democracy, see, e.g., Walter F. Murphy, "Excluding Political Parties: Problems for Democratic and
Constitutional Theory," in GERMANY AND ITS BASIC LAW 173 (Paul Kirchhof & Donald Kommers eds.,
1993); Gregory Fox & George Nolte, "Intolerant Democracies," in DEMOCRATIC GOVERNANCE AND
INTERNATIONAL LAW 389 (Gregory Fox & Brad R. Roth eds., 2000).
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It was unclear whether the Court identified a physical threat to the very existence of
the Israeli State from the El-Ard political party or whether the threat was primarily an
attack on the Jewish and democratic identity of the State. It seems that during this early
period of the State's existence, the justices treated the very existence of the Israeli State
and its identity as one and the same.334
Only justice Chaim Cohn, in a dissenting opinion,
described by the majority as courageous, stated that Israel could not exclude a political
party from competing at election without an explicit statutory authorization to that effect.
The right to compete at elections was too fundamental in a democracy to be left to the
discretion of the Central Election Commission.335
Did the Court invalidate a statute in this decision? Obviously, the Court did not
explicitly invalidate a statute. The majority opinion relied on fundamental unwritten
principles to authorize the disqualification of a political party, but it did not use the
language of striking down a statute. But was there an implicit invalidation? Different
interpretations are possible. On the one hand, the Court enabled the Central Election
Commission to disqualify a political party despite the explicit statutory grant of the right
to equal elections, and the rights to vote and be elected. Moreover, these enumerated
fundamental rights were granted not just under regular election statutes, but also in
"Basic Law: The Knesset."336
In this sense, the Court implicitly overruled both election
statutes and "Basic Law: The Knesset"—and with regard to the most basic norm of a
democracy: equal elections. On the other hand, it is possible to read the majority decision
as a robust interpretation of existing statutes to embody principles of self-defense that
were not explicitly stated but seem self-evident.337
This latter interpretation aligns with
the general jurisprudence of the Court during that era. The Court was actively engaged in
developing an interpretive non-formal common law constitution during those years.338
But, if the former interpretation is the better one, then the Yardor decision marks the use
of fundamental unwritten principles to at least implicitly overrule even "Basic Laws." In
such a case, the fundamental value worth protecting is the very physical existence of the
State or even just its identity as a Jewish and democratic State.339
334
In E.A. 2/84 Neiman v. Chairman of the Central Elections Commission to the Eleventh Knesset, 39 (2)
P.D. 225 (1985) (Isr.) [hereinafter Neiman], the justices interpreted the Yardor decision as permitting
disqualification of only political parties that aim at Israel's destruction, not its democratic nature. But see
Ruth Gavison, Twenty Years to the Yardor Decision--The Right to be Elected and Historical Lessons, in
ESSAYS IN HONOUR OF SHIMON AGRANAT 145, at 181 (R. Gavison & M. Kremnitzer eds., 1986)
(suggesting that the Yardor court was also trying to protect the democratic and Jewish character of the
State).
335
Yardor, supra note 330, at 368-84.
336
The (then) Justice Sussman wrote that he has "no doubt" that the elections law does not authorize the
Central Election Commission to disqualify political parties according to its own discretion. He suggested
that the opposite is implicit from the statute's language. Yardor, supra note 330, at 389. He however found
the Commission authorized to disqualify El-Ard based on "natural law" of the State's right to self-existence.
Id. at 390.
337
The (then) CJ Agranat emphasized that, in interpreting the law he was required to take into account
constitutional facts such as the very existence of the State and its identity as a Jewish and democratic State.
He thus interpreted Basic Law: The Knesset, § 1, providing that "the Knesset was the representative
assembly of the State," as entailing an election of political parties that do not seek Israel's destruction.
Yardor, supra note 330, at 385-87.
338
See supra Part II.B.
339
In fact, in the Neiman decision, justice Elon read the Yardor majority decision as applying fundamental
unwritten law, rather than interpretation, to disqualify a political party. This is why he read the Yardor
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While the Yardor decision did not explicitly discuss the possibility of invalidating
statutes in the name of fundamental unwritten rights, the Laor Movement decision, given
in July 1990, marked a turning point.340
There, the (then) justice Barak, in dicta in his
dissent, raised the possibility that the Court may strike down a statute, and even a "Basic
Law," if it does not align with fundamental unwritten principles of the legal system.341
Barak referred to German jurisprudence, especially after World War II, to justify his
position.342
Barak asserted that such authority may theoretically be attributed to the Court
though the time has not yet come to utilize it. The statute at hand was probably not
extreme enough in its abuse of fundamental rights to warrant such judicial intervention,
and Barak could not discern any public consensus to enable the Court to use such
authority.343
But, Barak suggested, theoretically the Court could enjoy such potent
authority. Thus, it seemed that it was only a matter of time and judicial discretion before
the Court could act upon this authority.
Barak could have reached the judicial result he desired in the Laor Movement case
without the need to write dicta or to dissent. The statute at hand infringed upon the
principle of equal elections in violation of section 4 of "Basic Law: The Knesset."344
Two
weeks after the elections to the twelfth Knesset, the Knesset's finance committee decided,
and was later ratified by statute, to retroactively increase the public funding granted to the
political parties that competed in the previous election. It was done to cover huge deficits
that the parties suffered as a result of the preceding electoral campaign. Prima facie, the
increase did not infringe upon the principle of equal elections, since all elected political
parties would have enjoyed it equally. De facto, the statute, if valid, would have
permitted political parties to spend more money than their economic fortunes allowed for
campaigning if they could safely assume they would be part of the majority in the
forthcoming legislature, and could then enact a statute with retroactive funding increase.
This would have heavily distorted election results, since small parties that were insecure
of their electoral success would be unable to spend equally with large political parties
whose future place in the Knesset was guaranteed. The retroactive funding would have
meant unequal elections in real time.
To be valid, section 4 required that this retroactive funding statute pass with the
support of a majority of MKs, i.e., 61 MKs. The majority opinion in the Laor Movement
decision struck down the statute because the statute did not pass with the requisite
majority of MKs in all its readings. Rather, in the preliminary reading, which was
required in addition to the three regular readings because the statute was proposed by a
private MK, there was no absolute majority present.345
Thus, the majority opinion chose
decision narrowly as applicable only to political parties that aim at the very destruction of the State. See
Neiman, supra note 334, at 289-92. Elon, however, believed that this natural law would succumb where
the Knesset to explicitly overrule it. Id. at 292. See also Barak Medina, Forty Years to Yeredor: The Rule of
Law, Natural Law and Restrictions on Political Parties in a Jewish and Democratic State, 22 BAR-ILAN
LAW STUDIES 327 ( 2006) (discussing the different interpretations possible for the Yardor decision).
340
Laor Movement, supra note 71.
341
Id. at 551-54.
342
Barak cited the following German authorities: H. REICHEL, GESETZ UND RICHTERSPRUCH (1915); K.
ENGISCH, EINFÜHRUNG IN DAS JURISTISCHE DENKEN STUTTGART-BERLIN-KÖLN, 173 (7th ed.,1977); G.
RADBRUCH, RECHTSPHILOSOPHIE 4 (Stuttgart, 1954); Article 117 Case (3 BVerfGE 225).
343
Laor Movement, supra note 71, at 554.
344
The Financing Political Parties (Amendment no. 8) Act, 1989, S.H. 6, § 2 .
345
Laor Movement, supra note 71, at 554-74 (Deputy CJ Elon and Justice Maltz).
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the solution that aligned with the language of sections 4 and 46 of "Basic Law: The
Knesset" (requiring absolute majority "in all phases of legislation") and reached the
desired result of invalidating an outrageous statute. But Barak chose to dissent finding the
repugnant statute valid. He interpreted sections 4 and 46 to mean that no absolute
majority was required in a preliminary reading, as opposed to the three regular readings.
He thus curiously interpreted the preliminary reading as not part of the "phases of
legislation," though he could have easily interpreted it as the majority did. Since Barak
too felt repelled by the statute at stake, he suggested in dicta that in the future he might
reach the desired result anyway by relying on foundationalism.
Barak thus utilized this Laor Movement decision to lay the theoretical foundations for
the use of judicial review over primary legislation, even in the absence of a formal
constitution. His opinion showed that he viewed foundationalism as a very real option for
Israel's constitutional development. He may have intended to catalyze the development of
judicial review.346
With or without a formal Constitution, it was only a matter of time
before Barak would recognize the existence of such judicial authority. Barak was thus
sending the Knesset a clear message that if it did not proceed with the enactment of
"Basic Laws," he could do without them. It was better for the Knesset to decide the
content of the formal Constitution then to entrust the Court to develop one through
foundationalism.
The Knesset was fond of Barak's dicta, since it meant that it did not need an absolute
majority in preliminary readings. The easier the better, when it comes to burdening equal
elections norms with absolute majorities. It thus amended section 46 of "Basic Law: The
Knesset" to read explicitly that majorities were necessary only in the "three readings"
rather than in "all phases of legislation."347
The Knesset further provided that this
amendment would apply retroactively from August 6, 1959—that is, the retroactivity
stretched to roughly 30 years.348
It also explicitly stated that any past statute that amended
section 4 without an absolute majority during the preliminary reading was nonetheless
valid from the time of its enactment.349
This enactment thus annulled the Laor Movement
majority opinion retroactively, and an appeal to the High Court against this retroactive
enactment was denied.350
As in its reaction to Bergman, the Knesset again validated
infringing regular statutes retroactively by way of reference.351
The Knesset thus
swallowed the bait, celebrating Barak's dicta as an increase of the Knesset's authority
with regard to absolute majority requirements, while disregarding the harsher
implications of his dicta to the Knesset's authority if foundationalism was ever acted
upon.
Since Barak suggested that no public consensus has formed with regard to
foundationalism as of that time, many mistakenly assumed that this was a moderate
opinion.352
But it was rather a Marburian strategy par excellence: First, raise the
possibility of judicial review over primary legislation without utilizing it. Only later act
346
See Gavison, Constitutional Revolution , supra note 10, at 91-92.
347
Basic Law: The Knesset (Amendment no. 11), 1990, S.H. 196.
348
Id. at § 2.
349
Id. at § 3.
350
See Blum, supra note 161.
351
See supra Part II.B.3.
352
RUBINSTEIN & MEDINA, supra note 35, at 231 (citing this decision as a clear example of a case where
the Court refrained from granting remedy to protect its public standing).
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upon it. It comfortably suited Barak's general judicial tactics of writing prolonged and
innovative opinions in dicta to set the stage for later judicial revolutions.353
This practice
deviated from the traditional judicial role of deciding “cases and controversies,” enabling
the Court to play a conscious policy-maker role.
But Barak did not need to utilize the grounds he so carefully laid in the Laor
Movement decision. Instead the enactment of "Basic Law: Human Dignity and Liberty"
and "Basic Law: Freedom of Occupation" enabled him to declare in United Mizrahi Bank
a "constitutional revolution" based on "Basic Laws" rather than on mere unwritten values
of the legal system. His judicial philosophy however remained the same. For him, there
were substantive constraints on the legislative power of the Knesset, whether defined as
"Basic Laws" or as unwritten fundamental values. Their exact content will be determined
by the Court. It was more comfortable to develop this supreme structure, based on the
deeds of the Knesset in the form of "Basic Laws," than to do it through unwritten basic
values. If founded upon "Basic Laws," it would be less susceptible to criticism that it was
all the Court's doing. It was possible to speak of the joint venture of the Knesset and the
Court in establishing the constitutional revolution.
The content of the Constitution however may be determined by the Court through
robust interpretation of "Basic Laws"' provisions. Thus, it was possible for the Court to
recognize many fundamental rights that the legislature discussed yet consciously not
explicitly enumerated them in "Basic Law: Human Dignity and Liberty" as incorporated
in it nonetheless. This was done, for example, with regard to aspects of equality, freedom
of speech, and freedom of religion, and so forth. The Court treated all these rights as part
of the constitutional right to "human dignity," and more specifically part of a person's
right to autonomy.354
That the Knesset may have meant otherwise just a decade ago did
not matter because "it is a constitution we are expounding."355
This judicial activism fits
comfortably with Barak's general judicial philosophy of foundationalism.
This judicial philosophy was evident also in the second Meatrael decision dealing
with the constitutionality of the statute prohibiting the importation of non-kosher meat
enacted with a "notwithstanding clause" to overcome challenges to its constitutionality
because it infringes the new “Basic Law: Freedom of Occupation” from 1994.356
While
the constitutional challenge was rejected, CJ Barak suggested in dicta that, if a statute
were to severely infringe the most basic values of a Jewish and democratic State, even
were it to include a "notwithstanding provision", the Court may find it unconstitutional
nonetheless. In such a case, the Court may narrowly read the notwithstanding provision
353
In addition to the United Mizrahi Bank and Laor Movement decisions, these judicial tactics were
manifested with regard to standing, justiciability, freedom from religion and many other contentious issues
within the Israeli society.
354
See infra Part IV.C.. See also Sommer, Non-enumerated Rights, supra note 44 (discussing the
ambiguous constitutional status of non-enumerated rights and the considerations for and against judicial
recognition of them as part of the Israeli formal constitution); Hillel Sommer, From Childhood to Maturity:
Outstanding Issues in Implementation of the Constitutional Revolution, 1 LAW & BUSINESS 59 (2004)
(criticizing the Court for leaving the constitutional status of many non-enumerated rights indefinite).
355
This is a quote from CJ Marshall's words in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). See
Barak, Judge on Judging, supra note 9, at 64-84. For a recent critique of Barak's purposive interpretation
theory, see Stanley Fish, Intention Is All There Is: A Critical Analysis of Aharon Barak's Purposive
Interpretation in Law, 29 CARDOZO L. REV. 1109 (2008).
356
HCJ 4676/94 Meatrael Ltd. v. The Israeli Knesset, P.D. 50 (5) 15 (1996). For the history of this
decision, see supra notes 245 - 254 and accompanying text.
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in the “Basic Law: Freedom of Occupation” to prevent a statute from overcoming the
most basic values of Israel's society as protected by the “Basic Laws” "purpose and basic
principles" clauses.357
One may conclude that this dicta too serves as a consistent
reminder of Barak's philosophy of foundationalism.
C. Post United Mizrahi Bank : Movement for Quality Government Decision
Since the United Mizrahi Bank dicta establishing judicial review over primary legislation
based on "Basic Laws," the Court exercised this judicial review authority five times to
declare statutes or provisions thereof as unconstitutional. On all five occasions, the Court
relied on United Mizrahi Bank without discussing anew why the Court should enjoy such
judicial review authority. Justice Cheshin sat on four of these cases and concurred.358
But,
in May 2006, on the eve of retirement of both CJ Barak and Justice Cheshin, the grounds
for judicial review authority were reopened.359
This was done in the Movement for
Quality Government decision reviewing whether the exemption from army service
granted to ultra-orthodox men was constitutional.360
The decision further illuminates the
theoretical grounds underlying Israel's formal Constitution.
Movement for Quality Government (MQG) is an NGO that specializes in petitioning
the High Court of Justice against the government's and administration's breach of
administrative and constitutional law.361
As such, it is part of the growing global
phenomenon of employing the private sector to enforce public law through the courts.362
MQG petitioned the Israeli Supreme Court against the validity of the 2002 statute to
regulate the deferral of army service to ultra-orthodox men, known as the "Tal Statute."363
Since the establishment of the Israeli State, ultra-orthodox men were practically exempt
from army service. The then Prime Minister David Ben Gurion accepted the ultraorthodox
political parties' request to re-establish Yeshivot after the great destruction of
the Holocaust.364
Prior to 2002, this exemption was not codified in statute, but rather the
Defense Minister used his general statutory authority to exempt people from army
service.365
Since there is a general duty under Israeli law imposed on all citizens to join
the army, this special treatment of ultra-orthodox men was always very contentious.
In 1970, an Israeli student, Baker, petitioned the Israeli High Court of Justice against
the special treatment awarded to ultra-orthodox men, but he was denied a remedy for lack
of standing and non-justiciability.366
Beginning in 1981, Advocate Ressler petitioned the
Court repeatedly against the constitutionality of this special treatment. At first, however,
357
Id. at 27-28.
358
For enumeration of these cases, see supra note 308.
359
In Israel, judges must retire at seventy. The Courts Statute, 1984, S.H. 198, § 13. Cheshin retired in
February 2006 and Barak in September 2006. See also supra note 23.
360
HCJ 6427/02 Movement for Quality Government v. The Knesset (2006) (unpublished yet) [hereinafter
Movement for Quality Government].
361
See http://www.mqg.org.il.
362
See CHARLES R. EPP, THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN
COMPARATIVE PERSPECTIVE (1998).
363
Deferral of Service to Yeshiva Students That Torah Is Their Work Act, 2002, S.H. 521.
364
Daphne Barak-Erez, The Military Service of Yeshiva Students: Between Citizenship and Justiciability,
22 BAR-ILAN LAW STUDIES 227 (2006).
365
The Security Service Law, 1986, S.H. 107, § 36.
366
HCJ 40/70 Baker v. Minister of Defense, P.D. 24 (1) 238 (Isr.).
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the Court consistently refused to hear the case on standing and justiciability grounds.367
But, in the famous 1988 Ressler decision, the Court with the (then) justice Barak writing
the main opinion, decided to broaden its authority to hear cases by de facto granting
standing in public matters to any citizen who wished to raise a grievance. Thus, almost
any citizen may petition the High Court of Justice against public authorities' breach of
law. It further decided that almost any issue was justiciable, including army matters.368
While broadening its authority, the Court did not utilize it to abolish the exemption, as
was actually requested by Ressler. Thus, Ressler was denied remedy. But, the Court did
suggest in dicta that it was a matter of time and the size of the population subject to
exemption before such a finding would be made. That is, with time, as the number of
Yeshiva students subject to exemption grows both in absolute terms and as a percentage
of the population, then the Court will reexamine this decision.
As already illustrated throughout this article, it is typical of the Court to enact its
judicial revolutions gradually, in stages, in a Marburian strategy. The Knesset received
its carrot in the form of a continuation of the exemption, while the stick was a farreaching
decision that broadened and democratized access to the Court. The decision
should be seen as the tremor before the constitutional revolution, since it enabled the rise
of the Israeli Supreme Court as a potent political player. Arguably, this rise of the Court
was done in dicta in Ressler, just as the constitutional revolution was declared in dicta in
the United Mizrahi Bank. Since Ressler was denied a remedy, there was no actual need to
decide the issues before the Court: standing and justiciability.
Then, in a breakthrough Rubinstein decision, in 1998, the Court ruled that the
exemption from army service could only be done in an explicit statute, rather than
through the general discretion of the Defense Minister, because of the separation of
powers doctrine.369
What had changed in the passing decade? Precisely what the Court
warned: time and the growth of the population of those exempted. The Court had already
prepared public opinion for this decision with its decade-old dicta.
Moreover, the Rubinstein decision showed a crafty judicial strategy. Prima facie,
while the decision abolished an arrangement that had been valid since the establishment
of the Israeli State, it also suggested that the exemption was within the legislative
branch's, not the administrative branch's, discretion to make. De facto, any new statute
enacted subsequent to "Basic Law: Human Dignity and Liberty" was subject to
constitutional scrutiny. In contrast, the exemption that was abolished by the Court
367
HCJ 448/81 Ressler v. Defense Minister, 36(1) P.D. 81 (Isr.); HCJ 179/82 Ressler v. Defense Minister,
36(4) P.D. 421 (Isr.).
368
HCJ 910/86 Ressler v. Minister of Defense, 42(2) P.D. 441 (1988) (Isr.). While the other justices sitting
in the Ressler decision concurred with Barak's opinion, each wrote a separate opinion. The (then) Deputy
CJ Ben-Porat emphasized that she did not support a result in which "the public appealant" would become
the main appellant in appeals to the High Court of Justice rather than the exception. CJ Shamgar
emphasized that when the main thrust of the case was political, the issue might be best left to the other
branches of government on justiciability grounds.
Despite their opinion, de facto since the Ressler decision there are no genuine hurdles of standing and
justiciabilty in appealing to the High Court of Justice in matters of public law. See, e.g., Barak-Erez, supra
note 364. See also RUTH GAVISON ET AL., JUDICIAL ACTIVISM: FOR AND AGAINST: THE ROLE OF THE HIGH
COURT OF JUSTICE IN ISRAELI SOCIETY (2000).
369
HCJ 3267/97 Rubinstein v. Defense Minister, 52(5) P.D. 481 (1998) (Isr.)[hereinafter Rubinstein
decision].
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enjoyed constitutional protection because it originated pre-"Basic Law."370
This is why
the Court invalidated the exemption on administrative grounds, rather than on
constitutional grounds.
The Knesset was thus forced to regulate the deferral/exemption of ultra-orthodox men
by statute. It did so in the Tal Statute, offering ultra-orthodox men special treatment.371
Not surprising in light of the previous litigious history, the statute was challenged in the
Court as unconstitutional.
MQG asserted that the statute infringed on human dignity, since the discrimination
against the general male population (and in favor of ultra-orthodox men) was
"humiliating" and discriminatory. The majority opinion left the statute intact despite their
dislike of it. In the past, the Court has already ruled that statutes, in which the
discrimination amounts to humiliation (e.g., when discrimination is based on sex, race, or
origin), may be treated as infringing the constitutional right to dignity.372
The justices in
MQG were willing to go one step further and treat human dignity as protecting against
discrimination, even if it merely infringed on personal autonomy and did not amount to
humiliation. This was a major judicial innovation, since the drafters of "Basic Law:
Human Dignity and Liberty" intentionally omitted equality from the rights enumerated
within it because that right lacked political consensus in the Knesset at the time.373
The
justices further suggested that the statute did infringe on human dignity, but it passed
muster anyway, because it was too early to judge whether the statute would succeed in
bringing about a social revolution and greater enrollment of ultra-orthodox men in the
army.374
Here again we see that the Court, led by Barak, cautiously and relentlessly
advanced its judicial agenda gradually, picking its fights. It was better to establish
equality as a constitutional value, while leaving the abolishment of the exemption for a
later day. But yet again, the Court's methodology achieved its major innovation,
arguably, in dicta.
Justice Cheshin in dissent found the statute repugnant to the most fundamental
unwritten constitutional values of the Israeli legal system and, as such, invalid. He found
the statute in violation of the fundamental value of equality, but not based on humiliation.
Cheshin believed that to serve in the army was a great honor and did not infringe on
human dignity. The statute also did not infringe on personal autonomy since there was no
proof that, because Ultra-Orthodox men were exempted, those serving had to serve
longer. Furthermore, the infringement on personal autonomy of those serving in the army
was primarily due to the draft, not to the exemption of Ultra-Orthodox men, and Cheshin
was principally (even ideologically) unwilling to treat the draft as violating human
dignity. But ultra-orthodox men's blood was not redder than secular men's blood. Since
370
See supra notes 45 & 46.
371
Between ages 18 and 22, they may study in their Yeshiva as long as they do so for at least 45 hours per
week and are prohibited from working. At age 22, they may decide to take a year off to consider their next
actions. Within this year they may even work. After that year, they may return to their studies for 45 hours
per week and combine it with work after yeshiva hours. Or they may decide to serve in the army or in civil
service for a shortened term.
372
See HCJ 4541/94 Alice Miller v. The Minister of Defense, 49(4) P.D. 94 (1995) (especially Justice
Dorner opinion).
373
See Karp, Power Struggles, supra note 42, at 345-46. Karp interprets the Basic Law: Human Dignity
and Liberty to protect equality despite MK's intent.
374
Movement for Quality Government, supra note 360 (Barak's opinion).
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equality was not enumerated in "Basic Law: Human Dignity and Liberty," Cheshin was
willing to invalidate the statute as repugnant to the Israeli State as Jewish (implicating the
need for an army to protect the State) and as democratic (implicating the imperative of
not discriminating against seculars).375
This was the first and only time that an Israeli Supreme Court justice was willing to
explicitly utilize foundationalism to invalidate a statute. Although done in dissent, this
decision is definitely another turning point in Israel's constitutional development. It may
even be treated as another mini-constitutional revolution. But for the fact that it was done
in dissent, it could have been a major judicially-made constitutional revolution.
Prima facie, it seems surprising that justice Cheshin, who dissented in United Mizrahi
Bank because he was unwilling to find the existence of a formal Constitution without the
People's consent would be the one to introduce foundationalism to the Israeli legal system
through the front door, rather than through the back door, as CJ Barak has so carefully
done.
Why did Cheshin base his opinion on foundationalism? Prima facie, the Tal Statute
mainly infringed on citizens' equality, which the Knesset intentionally decided not to
explicitly include in "Basic Law: Human Dignity and Liberty."376
If human dignity
embraced any infringement on a person's right to autonomy, as the majority suggested,
then what was left out? Thus, Cheshin honestly and openly admitted that he found the
statute so outrageous as to be against the very basic unwritten foundations of the Israeli
legal system, even though it did not violate explicit provisions of "Basic Law: Human
Dignity and Liberty."
But, are we persuaded? It seems to me that Cheshin wanted to send a clear educational
message on an issue that has divided Israeli society for many years: that is, no matter how
the exemption is accomplished—even were it to be codified in a "Basic Law"—it would
not withstand scrutiny. In fact, Cheshin hinted at this in the Rubinstein decision, when
abolishing the Defense Minister's exemption system.377
Using foundationalism in his
Movement for Quality Government decision guaranteed that, even if the Knesset codified
the exemption in a "Basic Law," it would not be valid. One may carefully suggest that
since Cheshin was about to retire, he made sure he left his mark on the future
development of the Israeli legal system with regard to both foundationalism in general
and the honorable duty to serve in the army in particular.
But, did his reliance on foundationalism comport with his United Mizrahi Bank
dissenting opinion? In United Mizrahi Bank, Cheshin enumerated a monist theory, under
which Israel's parliament was sovereign when "legislating to others," as opposed to its
more limited authority in the regulation of its own conduct. Thus, the Knesset may even
legally declare that a man was a woman or vice versa.378
In contrast, with regard to its
own authority, the Knesset was restricted by the most fundamental unwritten value of
democracy itself. Thus, the Knesset could not entrench its legislation beyond an absolute
majority requirement or extend its term in office.379
With the Movement for Quality
375
Id. (Cheshin's opinion).
376
See supra note 44 and accompanying text.
377
Rubinstein decision, supra note 369, at 541.
378
United Mizrahi Bank, supra note 8, at 527. Cf. DICEY, supra note 88, at 5 ("It is a fundamental principle
with English lawyers, that Parliament can do everything but make a woman a man, and a man a woman.").
379
United Mizrahi Bank, supra note 8, at 544-46. See also supra Part III.C.
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Government decision, Cheshin was extending foundationalism. It now applied not just to
the internal proceedings of the Knesset, but also when the Knesset was legislating for
others.
Ironically, Cheshin who strove hard in the United Mizrahi Bank decision to interpret
every substantive self-entrenchment of the Knesset as procedural, requiring merely
“explicit” overrule by the Knesset, was now recognizing substantive external unwritten
constraints on the Knesset's legislative power.380
It was CJ Barak who was more restrained this time around. There was no true
controversy between him and Cheshin on the possibility of relying on foundationalism, if
the appropriate case arose. But, the Tal statute was not the case that required it. After the
United Mizrahi Bank opinion, Barak could easily utilize the "Basic Laws" to strike down
the Tal Statute if that result was warranted. There was no need to refer to foundationalism
as of yet.381
Better to keep foundationalism reserved for situations in which there was a
need to invalidate a "Basic Law," not a regular statute, to protect the core values of a
Jewish and democratic State. That is to say, foundationalism was treated as an
unconventional weapon reserved for a time when no other option was available. Short of
that, through robust interpretation, regular statutes may always be found to violate "Basic
Laws," if that result was found justified.
While Cheshin tried to expand the basis for judicial review over primary legislation in
the Movement for Quality Government decision, Justice Grunis tried to restrict it to
situations similar to those enumerated in footnote 4 of Carolene Products382
--that is, to
situations in which judicial review enhances rather than restricts the democratic process
and is thus less counter-majoritarian. Thus, Grunis found that the Tal Statute was valid
because it favored a minority group--ultra-orthodox men--and the majority of secular
men did not need the Court's protection. There was no fear of the tyranny of the majority
against itself.383
Not surprisingly, Barak rejected this theory outright. It was too restrictive of judicial
review and did not align with Barak's own theory of substantive democracy. There was
no need to import it to Israel from the United States, when it was never relied upon, at
least not explicitly, in prior Israeli judicial decisions or by the Knesset when enacting
"Basic Laws."384
So far, Grunis is a lone voice in Israel's jurisprudence.
D. Is Foundationalism a Fitting Ground for Israel's Developing Constitution?
It is probably to foundationalism that Posner referred when suggesting that Barak has
decided "that the Knesset cannot repeal" the "Basic Laws."385
Barak, however, does
believe that the "Basic Laws" are amendable, even too easily so, because their
amendment usually requires only a bare majority of the MKs present. Posner's
380
See supra Part III.C..
381
Movement for Quality Government, supra note 360, paras. 73-74 of Barak's opinion.
382
Id. (Grunis opinion). See Carolene Products, supra note 144. Grunis did not mention Carolene Products
but rather Ely's writings. See ELY, supra note 144. Ely, however, theorized the Carolene Products footnote.
383
Movement for Quality Government, supra note 360 (Grunis opinion).
384
Id. at paras. 75-81 of Barak's opinion.
385
Posner, Enlightened Despot, supra note 1. (Though he did not discuss or refer explicitly to
foundationalism).
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description is nevertheless accurate as far as the core values of a Jewish and democratic
State are concerned, as discussed above.
On first glance, the concept of an unconstitutional constitutional amendment seems
self-contradictory. How can part of the constitution be deemed unconstitutional? Against
what content should the text of the amendment be measured? Obviously, the amendment
contradicts the text of the existing Constitution, otherwise no amendment would have
been necessary. If the amendment were passed according to the applicable procedural
rules set in the Constitution, why shouldn't the constitutional amendment be valid?
Indeed, some constitutional systems, chief among them the U.S., rejected the idea of
judicial review over the constitutionality of constitutional amendments. The U.S.
Supreme Court treats this issue as non-justiciable. That is, on prudential grounds the
court prefers to leave the judgment as to the validity of constitutional amendments to the
political branches.386
If judicial review over primary legislation suffers from countermajoritarian
difficulties, even though done on the basis of a supreme constitution, then
judicial review of the very content of the Constitution itself is even more contentious on
democratic grounds. Many scholars actually believe that the amending power is on par
with the original constitutive power and that constitutional amendments may actually
occur outside the process prescribed for amendment in the constitutional text.387
Nonetheless, many constitutional systems have decided to treat certain provisions
within the Constitution as not amendable by explicitly granting them absolute
entrenchment. Usually, such absolute entrenchment is granted to the democratic or
republican nature of the State and certain fundamental rights.388
Obviously, such
provisions cannot prevent constitutional change from occurring when the popular will
overwhelmingly and passionately favors it. They only raise the stakes for constitutional
change by requiring a new Constitution or even the use of force to bring about change.
The U.S. Constitution, for example, when adopted, guaranteed no change in the status of
the institution of slavery for about twenty years, but eventually slavery was abolished by
a civil war.389
This is also an historical example manifesting that absolute entrenchments,
even for a limited time, are not necessarily of liberal or even humane content.
The German "Basic Law" is famous for opting in favor of foundationalism. The horror
of Nazism brought the drafters of their "Basic Law" to explicitly include inviolable
provisions within it, especially those regarding the basic value of human dignity and the
democratic character of the State.390
This also explains why the German Federal
386
See Coleman v. Miller, 307 U.S. 433 (1939). This was not always the attitude of the U.S. Supreme
Court. For discussion, see Edward S. Corwin & Mary Louise Ramsey, The Constitutional Law of
Constitutional Amendment, 26 NOTRE DAME L. REV. 185 (1951).
387
See discussion supra notes 268- 270 and accompanying text.
388
See SAM BROOKE, CONSTITUTION-MAKING AND IMMUTABLE PRINCIPLES 52-78 (M.A. in Law and
Diplomacy Thesis, The Fletcher School, Tufts University, 2005), available at
http://fletcher.tufts.edu/research/2005/Brooke3.pdf (last visited July 15, 2008). Even the U.S. Constitution
has similar clauses regarding states' representation in the Senate. It cannot be changed without the consent
of the state involved. U.S. CONST. Art. V.
389
Id.
390
Article 79(3) of the German Basic Law states: "Amendments to this Basic Law affecting the division of
the Federation into Länder, their participation in the legislative process, or the principles laid down in
Articles 1 and 20 shall be prohibited." Article 1 provides that "Human dignity shall be inviolable,” and
Article 20 defines that “Germany is a democratic and social federal state.” DONALD P. KOMMERS, THE
CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY, Appendix A (2nd ed., 1997).
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Constitutional Court, in its first major constitutional decision, introduced the notion of the
unconstitutional constitutional amendment into the system.391
It had strong textual
support for it within its "Basic Law." It had a horrible history of extreme human rights
abuses that led to a World War and taught the necessity to include such explicit
limitations within the German constitutional system. Although the Court did not invent
the doctrine of unconstitutional constitutional amendment from thin air, it has never acted
upon it. It has so far remained a famous and important judicial dicta of educational
value.392
But, what if the Constitution does not explicitly include an absolute entrenchment
provision? This did not prevent the Indian Supreme Court from adopting the doctrine of
the unconstitutional constitutional amendment and acting upon it to abolish some parts of
its constitutional amendments.393
The Indian Supreme Court, by a majority of seven to
six, decided that its Constitution has some "essential features" and a "basic structure" that
could not be violated, including by a constitutional amendment.
This decision was given in April 1973, and the Court relied on the history of the
drafting of the Indian Constitution. It was suggested that the Constituent Assembly that
drafted the Constitution both represented the various minority groups within the Indian
society and reached its decisions consensually. Thus, it was not appropriate for a random
supermajority of Parliament to amend the essential features of the constitutional
document.394
Furthermore, the decision should be seen as part of a power struggle
between the legislative and judicial branches culminating in almost two years of
"emergency rule" in India in the years 1975-1976, when Parliament suspended some of
India's most important constitutional provisions with regard to fundamental rights.395
These extreme historical and political circumstances led credence and legitimacy to the
very innovative decision of the Court.
In introducing the doctrine of the unconstitutional constitutional amendment to the
Israeli constitutional system, Barak, in dicta, relied on the German and Indian
experiences.396
But, is this reliance justified?
Barak agrees and often speaks of the fact that the Israeli Constitution is incomplete;
that we are in the midst of the process of constitution-making.397
In fact, "Basic Law:
391
The doctrine of the unconstitutional constitutional amendment was mentioned in dicta in the Southwest
State Case, 1 BVerfGE 14, 32 (1951). It originated with the Bavarian Constitutional Court in 1950. See
KOMMERS, supra note 390, at 542 n.90. The doctrine was further embraced in the Article 117 case, 3
BVerfGE 225, 234 (1953). KOMMERS, id., at 48.
392
See Gary Jeffrey Jacobsohn, An Unconstitutional Constitution? A Comparative Perspective, 4 INT'L J.
CONST. L. [I·CON] 460, 477 (2006) [hereinafter Jacobsohn, Unconstitutional Constitution]. Only a
minority of justices were willing to exploit it in the Klass case, 30 BVerfGE 1, 33-47 (1970), to invalidate
"an amendment to Article 10 of the Basic Law limiting the 'inviolable' right of 'privacy of posts and
telecommunications.'" KOMMERS, supra note 390, at 48.
393
Kesvananda v. State of Kerala, A.I.R. 1973 S.C. 1461. The decision is extremely long, containing 566
pages in the All Indian Reporter. At the time the decision was given, Article 368 of the Indian Constitution,
prescribing the constitutional amendment procedure, did not include any language suggesting that the
constitutional amendment power was qualified, except for stipulating certain procedures for amendments
(supermajorities requirements).
394
See David Gwynn Morgan, The Indian 'Essential Features' Case, 30 INT'L COMP. L. Q. 307 (1981).
395
BROOKE, supra note 388, at 63-65; Morgan, id., at 326-337; Jacobsohn, Unconstitutional Constitution,
supra note 392, at 470-76.
396
See supra Part IV.A.
397
See, e.g., Barak, 12th Anniversary, supra note 76, at 57-58.
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Legislation," which should have provided for the amendment process has not yet been
enacted primarily due to lack of consensus on how much entrenchment, if at all, is
warranted.398
So far, it was the United Mizrahi Bank Court that decided on the procedure
for amending non-entrenched “Basic Laws”—that is through “Basic Laws” alone.
This constitutional history hardly lends support to a doctrine of unconstitutional
constitutional amendment. There is no textual basis for absolute entrenchment in Israel,
in contrast to the German experience. It is difficult to decide on the essential features of a
Constitution that is incomplete, in contrast to the Indian experience. Israel's constitutional
history does not resemble the German, or even the Indian, experience to the slightest.
Moreover, ironically, both Shamgar and Barak suggested that there were limits on the
Knesset's entrenchment power due to democratic considerations.399
If there were limits to
the Knesset's entrenchment powers, weren't they relevant also to entrenchment imposed
by the judiciary (in the form of "unconstitutional constitutional amendment") rather than
by the Knesset?
In the absence of explicit adoption by the Knesset of absolute entrenchment in
constitutional provisions, we may still believe that certain values are so fundamental that
the Knesset may not violate them. But, the circumstances that support such a judicial
decision should be quite extreme. In the two specific instances in which the use of
foundationalism was seriously considered in Israel—the Laor Movement and Movement
for Quality Government cases—it can hardly be said that the statutes were so extreme as
to rise to the level requiring the use of foundationalism.
Why should foundationalism be left to the extreme rather than be the measure for the
forming of Israel's Constitution? Simply because, in the absence of explicit
foundationalist provisions in the Constitution, we don't really know what foundationalism
requires. We do not know the origins of its principles. There is no document ever agreed
to that can serve as its basis. It is a form of secular religion, but religion nonetheless.
Thus, for example, in the Movement for Quality Government case, both sides could have
invoked foundationalism on behalf of their cause. The ultra-orthodox population could
have claimed that their foundationalism required respect for Jewish tradition and Torah
learning, thus necessitating the exemption of Yeshiva students from army service. Those
serving in the army, on the other hand, could have invoked equality and protection of life
as requiring no exemption for the ultra-orthodox community. History is actually full of
examples of the use of foundationalism to advance not-so-liberal goals, such as slavery,
racial segregation, or degradation of women.400
And even if there were explicit constitutional provisions establishing foundationalism,
those could not have prevented constitutional change from occurring if the people and
their representatives overwhelmingly, consistently, and deliberatively endorsed change. It
would only have raised the stakes for achieving change by requiring that they resort to
force. It is thus my contention that, only in extreme circumstances, when human people
398
See Weill, the People's Consent, supra note 78.
399
See supra notes 90 & 91 (Shamgar) and 183 (Barak) and accompanying text.
400
Thus, for example, before the Civil War, it was argued by both sides of the slavery debate that God's law
either required or forbade that black people should be slaves. See ELY, supra note 144, at 50-51. During the
nineteenth century, it was argued that women could not be attorneys since, by the law of nature, they were
destined to fulfill the role of mothers and wives. Bradwell v. Illinois, 16 Wall. 130, 141 (1872) (Bradley, J.,
concurring). In Plessy v. Ferguson, 163 U.S. 537, 544 (1896), "the nature of things" required social
segregation of blacks and whites on railroad trains.
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cannot reasonably argue that certain political actions are extremely unjust, should
foundationalism ever be referred to.401
And may Israel's judiciary never need to resort to
it. If ever truly needed, it is doubtful whether foundationalism can be successful in saving
us from ourselves.
It is probably that the difficulties plaguing foundationalism have prevented the justices
from explicitly basing the Israeli emerging formal Constitution on it as its sole basis.
While perceptions of foundationalism—including the inviolable nature of individual
rights and the inherent limited power of the legislature—may have motivated the justices
in the first place when deciding United Mizrahi Bank, they were careful to suggest either
monism (Shamgar and Cheshin) or dualism (Barak) as the main basis, treating
foundationalism as a supplementary basis alone.
V. THE EMERGING HYBRID FORMAL ISRAELI CONSTITUTION
The story of Israel's constitutional development has been highly affected by asking the
wrong question. Both political actors and legal and political science scholars have
concentrated on the question of whether Israel has a formal Constitution rather than what
kind of constitution Israel enjoys. Thus, we have witnessed bizarre events in recent years
when, in different settings, the (then) CJ Barak spoke of Israel's Constitution and the
(then) Chairman of the Knesset or the (then) Minister of Justice or the (then) Head of the
Bar Association denied the existence of a Constitution.402
But, the institutional dialogue
should have focused on what kind of Constitution is forming in Israel rather than whether
Israel has one at all. The either-or approach, influenced by the American Marbury
rhetoric, was not compatible to Israel’s conditions.
Israel, like other Commonwealth countries, has developed a hybrid constitution.403
It
has mixed features from all three models: monism, dualism, and foundationalism. It is
monist, based on the Knesset's "Basic Laws," which were enacted without any special
process to differentiate them from regular enactments. Most "Basic Laws," including
"Basic Law: Human Dignity and Liberty," are not entrenched and may be amended by a
regular majority of MKs present. Although the Knesset treats "Basic Law: Human
Dignity and Liberty" as holy, it is only the Knesset's self-imposed "shaming" mechanism
that prevents it from abolishing or amending the individual rights guaranteed within it.404
It has dualist features that are very weak. The Court has decided that "Basic Laws" may
only be amended via "Basic Laws," though so far this only entails a different title, not
process of enactment. The public has not been involved in the process of enactment, thus
401
See A. Parush, Judicial Activism, Natural Law and Legal Positivism—Judge Barak and the 'Omnipotent
Knesset' Doctrine, 17 TEL-AVIV UNIV. L. REV. 717 (1993) (supporting Barak's Laor Movement dicta if
applied only in extreme cases).
402
See, e.g., Evelyn Gordon, Judicial Activism and the Missing Deliberation, 3 AZURE 44 (1998); Aharon
Barak, To Protect the Citizen from the Legislature, speech given on May 26, 2003 at the annual conference
of the Israeli Bar in Eilat, available at http://www.nfc.co.il/Archive/003-D-2715-00.html?tag=11-44-31
(last visited on July 21, 2008). Even the (retired) CJ Shamgar in a conference of the Israeli Association of
Pubic Law in November 2008 has expressed the view that Israel lacks a Constitution, by which he probably
meant to lament the fact that it is incomplete.
403
For discussion of hybrid commonwealth constitutions, see Gardbaum, supra note 33. Gardbaum,
however, did not discuss the Israeli Constitution.
404
See Weill, the People's Consent, supra note 78, at 467-468.
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no true popular sovereignty basis has so far emerged for the Israeli Constitution. Israel’s
dualism does not mean popular sovereignty, but it does describe the consequences of the
Court’s ruling in the sense that we have a two tier constitutional system, and that the
Court protects “Basic Laws” from regular legislative encroachment by exercising judicial
review. Its foundationalist character is again judge-made. Although the Court has not
imposed foundationalism yet, it is unclear what would trigger such a holding. Thus, for
example, it is left open whether the Court would treat the constitutional revolution as
irreversible regarding the very existence of a Bill of Rights and the power of judicial
review, even were the Knesset to attempt their abolition by amending the “Basic Laws.”
In a sense, one may conclude that so far Israel had a monist process, semi-dualist
outcome and foundationalist motives for constitution-making.
Obviously, every country has its unique history of constitutional development. The
process of constitution-making worldwide has always required, or even been typified, by
compromises and even the use of force and coercion against dissenters and resorting to
illegality to bring about change.405
This article has attempted to portray Israel’s
compromises in its constitutional adoption process. But the impetus behind the article has
been deeper. It argues that it is pertinent to understand the mixed characteristics of the
Israeli formal Constitution since depending on one’s view of the basis of the Israeli
Constitution different results may ascribe to future constitutional dilemmas. Thus, for
example, how should the Court react to an express infringement of the “Basic Laws” in a
regular statute? What is the validity of an entrenchment found in regular statutes? How
should the Court treat Knesset’s breach of an entrenchment provision?406
What
constitutional amendment mechanism best fits Israel's current constitutional
development?407
Could there be an unconstitutional constitutional amendment? These are
partial examples of the importance of understanding the strengths and weaknesses of the
various bases of Israel’s mixed constitution. From each base derives a different
conclusion for Israel’s constitutional future. None of the issues have yet been the subject
of litigation. It is left for the future to determine which of the bases of the hybrid Israeli
Constitution would be strengthened.
The Israeli "Basic Laws," like the British Human Rights Act of 1998, are another
manifestation of the possibility of a middle ground between the supremacy of the
constitution (or some would say of the judges) and the supremacy of the legislature,
contrary to CJ Marshall's finding in Marbury. The Constitution established dialogue
mechanisms--including a Canadian-style override mechanism in "Basic Law: Freedom of
Occupation" and light entrenchment that, if used correctly, could have enabled a fruitful
conversation between the Knesset, the Government, the Israeli Supreme Court and the
People over constitutional issues.
The override mechanism in "Basic Law: Freedom of Occupation" could have been
employed to enable the Knesset to either a priori or following a judicial decision protect
an infringing statute from invalidity for a limited renewable period.408
This could have
405
See, e.g., ACKERMAN, FOUNDATIONS, supra note 22; ACKERMAN, TRANSFORMATIONS, supra note 22;
Jon Elster, Arguing and Bargaining in Two Constituent Assemblies, 2 U. PA. J. CONST. L. 345 (1999-2000).
406
See discussion Part III.C. supra.
407
See Weill, the people’s Consent, supra note 78 (discussing what constitutional amendment mechanisms
should be adopted if Basic Law: Legislation were to be enacted).
408
Basic Law: Freedom of Occupation, § 8..
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been used when either the Knesset accepts that the statute infringes on the "Basic Law"
but has enacted it due to transient crucial State interests, or the Knesset disputes the
Supreme Court's judgment in the matter. Of course, such override of judicial decision
will apply only prospectively.409
By requiring explicit override of the "Basic Law," the
Knesset would have been forced to take public responsibility for its actions. The limited
validity of such an override mechanism for four years requires the Knesset to gather
anew, after each election, the required absolute majority of MKs to reenact it.410
On its
face, this is a simple task to achieve, since every governmental coalition requires the
support of an absolute majority of MKs to govern in Israel's parliamentary system. But,
in light of the legislative history of the "Basic Laws" enactment, it seems that it would
not be so simple for the government to gather such support. Only few "Basic Laws"
enjoyed the support of an absolute majority of MKs during their enactment, as elaborated
above.411
Furthermore, since Israel has a parliamentary system and its electoral system is
based on proportional representation, the government which enjoys the support of a
majority of the Knesset usually consists of many coalition partners with different
constitutional agendas and it would require their consent to constitutional change. Since
the constitutional revolution, some political parties have even included in their coalition
agreements that no amendment of the “Basic Laws” would be done without their consent.
Thus, the override mechanism could provide a very potent dialogue between the
various political actors involved. Some have even suggested adopting a general override
to apply to all Israel's "Basic Laws" dealing with individual rights, and not just to "Basic
Law: Freedom of Occupation," as is currently provided.412
Of course, such an override
mechanism, if it would require not more than the consent of an absolute majority of MKs
and be renewable, could serve as a compromise between strong advocates of
constitutionalism and judicial review, and those in favor of parliamentary sovereignty.
The relative flexible amendment process of "Basic Laws" could have been used by the
Knesset to respond to the Israeli Supreme Court decisions, as well.413
In fact, the (then)
CJ Barak in the United Mizrachi Bank decision enumerated the amendment mechanism
available to the Knesset as one of the justifications for the legitimacy of judicial review
409
For a similar interpretation of the Canadian override mechanism, which served as inspiration for the
Israeli provision, see PETER W. HOGG, CONSTITUTIONAL LAW OF CANADA ch. 39 (5th ed. vol. 2, 2007)
(supporting the use of the override when the legislature disputes constitutional decisions of the Supreme
Court and preferring the override to American court packing techniques). On an interesting analysis of
whose interpretation should matter in constitutional issues, see MARK TUSHNET, TAKING THE
CONSTITUTION AWAY FROM THE COURTS (1999).
410
Basic Law: The Knesset, § 8, provides that "the term of office of the Knesset shall be four years from
the day on which it is elected."
411
See supra Part III.B.
412
See proposal of the Law, Legislation and Constitution Committee of the Knesset for Constitution to
Israel based on broad consent, available at http://www.huka.gov.il/wiki/index.php/English. Cf. Draft of
Basic Law: Judiciary (Amendment-Judicial Review over Primary Legislation) of April 12, 2007 available
at http://www.justice.gov.il/mojheb/TazkireyHok (last visited on July 21, 2008). According to the proposed
Basic Law, only the Israeli Supreme Court by a two-thirds majority decision will be authorized to
invalidate a law of the Knesset, provided that the law infringes only the two "Basic Laws" dealing with
individual rights or it infringes the supermajority requirements of other Basic Laws. The Knesset will be
authorized to override such judicial decision by the support of an absolute majority of its members.
413
Such amendment may be subject to a Court's ruling of an unconstitutional constitutional amendment as
elaborated in Part IV. supra.
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over primary legislation.414
In the United States, for example, the Constitution was
amended four times to overturn decisions of the U.S. Supreme Court in very contentious
constitutional matters.415
The ease with which the Knesset could have amended the
"Basic Laws" in the face of judicial invalidation requires both the Knesset and the
Supreme Court to weigh carefully and seek balance in each constitutional dilemma. So
far, the Knesset withstood the temptation to amend the 1992 "Basic Laws" in response to
judicial decisions, and that alone reflects its own acknowledgement of the need to respect
individual rights. The Knesset does not accord such reverence to “Basic Laws” dealing
with the structure of government, which it often amends. Furthermore, since the United
Hamizrahi Bank decision, the Knesset has accepted the Court’s judicial review
“trumping” power as manifested time and again in its willingness to amend regular
statutes found by the Court to be unconstitutional.416
This may legitimize Israel’s formal
Constitution over time, based on ex-post facto acquiescence. That is, with time, the
content if not the process of constitution-making might be accepted as binding.417
Israel is seriously considering enhancing its constitutional commitments via a
comprehensive enactment of a new complete Constitution that may require broad
consensus on the part of both Knesset members and the citizenry. The last head of the
Knesset's Constitution, Legislation and Justice Committee, Professor Menachem BenSason,
has continued the task of its predecessor to draft a full new Constitution for
Israel.418
In light of Israel's constitutional past, it is however far from clear whether Israel
could achieve the replacement of its fragile hybrid Constitution with a dualist one based
on popular sovereignty. It is uncertain whether both the Knesset and the fractured Israeli
society could agree on such a formal comprehensive Constitution.
These are trying times for the Israeli legal system. Never has the tension between the
Supreme Court and the government been so high. While CJ Beinish, Barak's successor,
tries to maintain the constitutional revolution's achievements, the last Minister of Justice
(and former distinguished Tel-Aviv University Professor of Law) Friedman has
attempted to undo some of them, especially with regard to judicial review.419
Anyone
voicing an opinion in this debate is a foe of one camp and a friend of another. Both sides
contend that accepted, almost universal, constitutional norms condone their stand and
reject the other in the debate, which is an alarming manifestation of how dangerous
414
See United Mizrahi Bank, supra note 8, at 424-25.
415
See, e.g,. Laurence H. Tribe, A Constitution We are Amending: In Defense of a Restrained Judicial Role,
97 HARV. L. REV. 433 (1983).
416
For decisions finding regular statutes unconstitutional see supra note 308.
417
Cf. Weill, Evolution, supra note 215, at 456-58 and my discussion supra note 244. See also Or Bassok,
A Decade to the 'Constitutional Revolution': Israel's Constitutional Process from a Historical-Comparative
Perspective, 6 MISHPAT UMIMSHAL 451 (2003) (discussing the potential that Israel's Constitution would
acquire legitimacy in an evolutionary manner).
418
See http://huka.gov.il/wiki/index.php/English (last visited July 21, 2008).
419
See supra note 412. On July 28, 2008 the Knesset enacted an amendment to Courts Statute requiring a
supermajority of nomination committee to appoint justices to the Supreme Court, instead of the regular
majority customary since the establishment of the State. It was done to inhibit the justices’ ability to
nominate their successors, though it actually grants veto power to the justices, who compose third of the
committee’s members. See Courts Statute (Amendment no. 55), 2008 available at:
http://www.knesset.gov.il/privatelaw/Plaw_display.asp?lawtp=2;
http://www.knesset.gov.il/Tql//mark01/h0012136.html#TQL (preliminary reading in the Knesset on May
21, 2008).
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comparative constitutionalism might become when used without prudence. It is left for
the academia to mourn this turn of events and throw some light on the debate.
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