Behind the Headlines Israel Gropes Towards Constitution

The Knesset is currently discussing a bill called “Basic Law: Legislation” which would, if passed, introduce a major change in the balance of relations between the executive, legislative and judicial arms of Israel’s governmental system. The bill proposes that the Supreme Court function as a constitutional court, reviewing regular laws enacted by the Knesset, in the light of the “Basic Laws.”

Israel has no formal constitution. Instead, the Knesset has enacted over the years a series of “Basic Laws” with the aim of eventually codifying them into a formal, binding constitution. Among the “Basic Laws” that have been enacted so far are “Basic Law: The Knesset,” “Basic Law: The Government” and “Basic Law: The President of the State.” These laws establish fundamental principles regarding the structure and character of Israel’s governmental system. Most recently, the “Basic Law: Israel Defense Forces” was passed, enshrining the principle of the army’s subordination to the civilian government.

The Knesset is also presently handling other “Basic Law” proposals, dealing with human right, women’s rights, and the national economy.

HIGH COURT DOESN’T WANT LEGISLATIVE ROLE

The “Basic Law: Legislation” was described by Justice Minister Haim Zadok as the “law of the law.” In part, it would formalize existing practices and procedures of legislation. But it would also bring in one major innovation which has already aroused sharp objections in various quarters.

Clause 12 of the bill states that an appeal on the validity of a regular law passed by the Knesset may be submitted on two grounds: a) that the law contradicts one of the “Basic Laws”; b) that the law was passed in the Knesset without the necessary majority. The bill authorizes the Supreme Court to sit as a constitutional court in order to hear such appeals.

The first to attack the bill was the Knesset Speaker himself, Yisrael Yeshayahu. In a letter distributed to all members of the Knesset, Yeshayahu sharply criticized clause 12. The Speaker argued that by authorizing the Supreme Court to pass judgement on the Knesset’s legislative work, the sovereignty of Parliament–that fundamental bastion of the British system, upon which Israel’s is based–would be impaired.

The result of the proposed procedure, wrote Yeshayahu, would be that five judges would function as super-legislators–instead of the 120 Knesseters who were elected by the people. He also expressed his fear of the eventual politicization of the Supreme Court as a result of its proposed intervention in the legislative procedure.

The Speaker was supported–surprisingly–by the Supreme Court itself. In a symposium held in the Knesset, Supreme Court Justice Haim Cohn asked ironically for the mercy of the Knesseters with regard to the new function they intended to impose upon the Supreme Court. Openly assailing the bill, Judge Cohn said it assigns to the Supreme Court an essentially non-judicial function: to decide whether a particular law was passed by the requisite number of voters. “The Court does not count heads and is not entitled to do that. Had I been asked I would refuse to deal with that business,” stated Justice Cohn. He also attacked the bill’s proposal authorizing only the Supreme Court (on appeal) to review regular laws in the light of the “Basic Laws,” rather than empowering the lower courts too to take account of this issue, if relevant, during the hearing of cases. “The proposed law will cause miscarriage of justice and delay the execution of sentences.” concluded Judge Cohn.

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Yeshayahu’s and Cohn’s opponents are the university law scholars headed by the Attorney General; Prof. Aharon Barak. Barak says that exposure of the legislators to judicial control is a familiar phenomenon in many democratic countries that has caused neither damage to democracy nor insult to parliament. Prof. Yitzhak Zamir of the Hebrew University says an improvement in the quality of Knesset legislation is essential, and the judicial control over the House’s work proposed by the new bill would contribute to achieving this goal. A vigorous discussion of the “Basic Law: Legislation” is thus under way and it is still too early to assess what its results will be.

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