Reversing the ‘Constitutional Revolution’

The second article in this series describes in depth how the Supreme Court used its authority, why it encountered a backlash, and what current proposals to limit the power of the Court to exercise judicial review over Knesset legislation look like.

The Israeli Knesset exercises both ordinary and constitutional law-making powers. In the latter capacity, it passes “basic laws,” which are meant to be chapters of a future Israeli constitution. Still, until 1995, the Supreme Court did not clarify its position as to whether basic laws were normatively superior to ordinary laws. The legal uncertainty surrounding this point has two main causes. First, the procedure for passing basic laws is similar to that used for passing ordinary laws. Second, the criteria for distinguishing between legal issues addressed in basic laws and ordinary laws has never been clearly articulated in a legal instrument—nor is it apparent from review of the respective contents of basic laws and ordinary laws.

That the Court possesses the authority to review Knesset legislation under certain circumstances has never been seriously challenged. In 1969, in Bergman v. Minister of Finance, the Supreme Court invalidated an election financing law because it contradicted the principle of equality in elections found in Article 4 of Basic Law: The Knesset. However, the reasoning in Bergman was based on Article 4’s explicit requirement that a majority of Knesset members (61 of 120) deviate from the law’s terms, and the specific election financing law in question was passed by a majority less than that required in the basic law. Bergman did not include, however, the proposition that basic laws are, by definition, superior to ordinary laws.

The Court After 1992

As stated in the first article in this series, the Knesset in 1992 passed for the first time two basic laws that were principally aimed at protecting human rights: Basic Law: Freedom of Occupation, which protects the right to choose an occupation or a profession, and Basic Law: Human Dignity and Liberty, which protects life, bodily integrity, property, personal liberty, the right of everyone to exit Israel and the right of Israeli citizens to enter it, and the right to privacy. Both basic laws contain a “limitation clause,” loosely modeled on Section 1 of the Canadian Charter of Rights and Freedoms. The clause reads: “One is not to violate the rights in accordance to this Basic Law save by means of a law that corresponds to the values of the state of Israel, which serves an appropriate purpose, and to an extent that does not exceed what is required[.]” Pre-1992 legislation was shielded from constitutionality review pursuant to Basic Law: Human Dignity and Liberty (by contrast, Basic Law: Freedom of Occupation contained only a limited temporal shield).

In its landmark case United Mizrahi Bank v. Migdal (1995), the Supreme Court declared that basic laws are superior to regular laws. Specifically, the court declared that it may strike down Knesset statutes that are incompatible with the terms of the limitation clauses in the two basic laws from 1992. In later decisions, the Court also introduced a “judicial limitation clause” to evaluate the compatibility of regular laws with the other basic laws, even though they did not include an explicit limitation clause.

Following the United Mizrahi Bank judgment, the Israeli Supreme Court developed a sophisticated body of jurisprudence for evaluating the compatibility of ordinary laws with the basic laws according to the terms of the limitation clauses found in the two basic laws from 1992. The evaluation process consists of three main stages: In the first stage of the analysis, the Court evaluates whether there is an infringement of a constitutionally protected right. The Supreme Court has adopted, in this connection, an expansive interpretation of constitutional rights and construed, for example, the right to human dignity as including, among other “unenumerated” rights, the right to equality, freedom of speech, due process, and minimal conditions of life necessary for a dignified existence. Upon a finding that a protected right has been infringed, the Court moves to the second stage of the analysis, in which it ascertains whether the infringement was grounded in legislation that corresponds to the values of the state of Israel (defined in the two basic laws from 1992 as Jewish and Democratic) and serves an appropriate purpose.

The third, and most crucial, stage of the analysis is the “proportionality” stage. In this stage, the Supreme Court evaluates whether the infringement of rights by the law offers a rational and a necessary means to achieve the goals that the legislative branch set for itself. The Court also evaluates whether the harm to constitutional rights does not outweigh the social gains achieved by the reviewed law. If the harm clearly exceeds the gains, the law will be invalidated.

Since 1992, the Court has invalidated 22 laws or legal provisions on the basis of its new powers of judicial review of legislation. One set of invalidated statutes involved an infringement of the rights of “discrete and insular minorities.” For example, the Court struck down a statute that authorized the minister of the interior to detain without trial “infiltrators”—that is, asylum-seekers who have entered the country illegally—for long periods of time (up to three years). The Court also struck down a statute that stipulated that part of the salary paid to asylum-seekers by their employers be held in escrow until they leave the country. The Court further invalidated a statute that provided a lower tax rate for residents of a Jewish town near the northern border but not for residents of a nearby Arab village. Moreover, it struck down the “settlement regularization” law, which authorized the government to expropriate Palestinian privately owned lands if settlement houses were built on it, even if they were built in violation of the applicable planning and zoning law.

There have been other cases in which the Supreme Court invalidated statutes providing specific groups with preferred treatment. For example, the Court invalidated on a number of occasions laws that granted ultra-Orthodox men an exemption from military service, and a law providing a license to a right-wing “pirate radio” without a proper public tender. Other instances of invalidation involved, inter alia, the right to personal liberty (striking down a law that allowed the detention of soldiers for 96 hours without judicial review), the right to minimal conditions of life (striking down a law that deprived income support from persons using a motor vehicle), the right to due process (striking down a law allowing for detention hearings in absentia), and the right to human dignity and liberty (striking down a law regulating the operations of private prisons).

Significantly, the impact of the Court’s constitutional jurisprudence far exceeded the 22 laws or provisions that were struck down. The question of whether or not new legislation would survive scrutiny by the Court has become a dominant consideration in the legislative process, and government and Knesset legal advisers who could predict the Court’s position (and might have to ultimately defend challenges to the constitutionality of new legislation before the Court) obtained considerable influence over the legislative process.

Backlash

The “constitutional revolution” that emanated from the basic laws of 1992 has changed the balance of power between the branches of government in Israel, moving Israel away from a legal system based on the notion of parliamentary sovereignty to a constitutional democracy in which the power of the parliament is limited by a constitution containing a bill of rights (albeit a short one). This development had clear political implications: Since right-wing parties have been in power most of the time since 1992, right-wing politicians often found their ability to promote their legislative agenda hampered by what they considered to be a liberal judicial elite (over whose composition these politicians had only limited influence) applying constitutional law allegedly with a liberal bias. Although all basic laws could be amended rather easily (for example, Basic Law: Freedom of Occupation can be amended by a majority of 61 out of 120 members of the Knesset, and Basic Law: Human Dignity and Liberty, by a simple majority), Israeli politicians have generally refrained from doing so, presumably due to the unpopularity of removing altogether basic rights and judicial review relating to laws that violate them. (One exception, albeit modest in its implications, involved the carving out of professional activities related to the importation of non-Kosher food products from Basic Law: Freedom of Occupation in 1994.)

Instead of pressing for change in the contents of the basic laws, critics of the constitutional revolution challenged the interpretation given to these basic laws by the Supreme Court. One persistent criticism made in this regard by conservative politicians, activists, and academics has been that the 1992 basic laws did not really authorize the Court to strike down legislation—because this was allegedly not the legislative intent, and because the modest majorities by which the basic laws were adopted were not sufficient to afford them with constitutional status superior to ordinary legislation. (For instance, Basic Law: Human Dignity and Liberty was supported by 32 members of the Knesset, and 21 members opposed it—most members did not vote. Basic Law: Freedom of Occupation was adopted by 21 members without opposition.) Proponents of the constitutional revolution countered by pointing to specific legislative debates over the Court’s power to strike down legislation, to the limited opposition to the basic laws at the time of their passage (rather, they were supported by key members of both the coalition and the opposition), and to the lack of any formal majority requirements governing the Knesset’s exercise of constitutional authority.

A second line of criticism, emanating from the same conservative circles, pointed at the considerable discretion exercised by Supreme Court justices in identifying new “unenumerated” rights and applying the limitation clauses, especially with regard to identifying the values of the state of Israel and the proportionality of right-infringing legislation. The critics maintained that since these decisions involve value judgments, they ultimately should be decided by democratically elected representatives and not unaccountable judges. Alternatively, they argued that since the Supreme Court has effectively become a constitutional court, democratically elected representatives should have a greater ability to influence the composition of the bench and to ascertain the ideological positions of judicial candidates before their appointment.

Whereas the backlash against the constitutional revolution is not new, it has intensified in recent years, partly as a result of the rise of political populism in Israel. This has resulted in a situation in which every time the Court struck down a law, politicians blamed it for undermining “governability” and called for curbing the authority of the Court to invalidate laws. Concrete ideas to curb such power—mostly involving a requirement for a supermajority on the Court to invalidate legislation and allowing the Knesset to override judgments that invalidated Knesset legislation—were found in several draft bills submitted by members of the Knesset over the years. Until now, none of them gained much traction in the legislative process.

The Current Proposals

In January, two draft bills proposing drastic reforms in judicial review over Knesset legislation were made public. Unlike previous bills, the two bills appear to enjoy the support of the governing coalition and have real chances of passage. The first draft bill was published on Jan. 11 by Minister of Justice Yariv Levin. When it became clear that Levin’s proposal could not be fast-tracked in the Knesset, the chair of the Knesset Constitution, Law and Justice Committee, Simcha Rothman, published on Jan. 18 another proposal for debate in his committee. The proposals are similar but not identical. Since both of them will be considered by the Knesset, we will discuss them together and highlight the relevant differences.

Generally, the two proposals seek to significantly weaken the authority of the Supreme Court to review the compatibility of new legislation with the basic laws. This weakening is to be achieved by introducing severe limitations on the Court’s authority.

First, the proposals seek to limit the Court’s authority to strike down legislation to those cases that substantively contradict an explicit provision of the basic law (this is Levin’s proposal) or “clearly contradict[] an enshrined provision” (translated from Rothman’s proposal: “ סותר בבירור הוראה ששוריינה בחוק-יסוד”). Both proposals seem to aim at limiting the Court’s ability to interpret provisions of basic laws expansively and to protect unenumerated human rights. This might result, specifically, in denying the Court the power to invalidate laws that infringe on the right to equality—a right not mentioned in basic laws but considered until now by the Court as implicit in the constitutional right to human dignity.

Second, Levin proposed that the authority to invalidate statutes would be invested in the Supreme Court only (and not every Israeli court, as is currently the situation), when sitting en banc, if a majority of 80 percent of its judges support the invalidating decision. Taking into account Levin’s other plans to change the manner in which Supreme Court judges are elected, it is quite difficult to see that an 80 percent majority will be achieved to strike down any law. (We will discuss this further in Part 3 of this series.) Rothman’s proposal is even more extreme: He would allow the Supreme Court to strike down a law only with a unanimous decision of all judges, something that would almost never be achieved in practice.

Third, Levin’s proposal states that decisions to strike down specific statutes would create no precedent with regard to other statutes. This part of the proposal would require the Court to fully adjudicate anew claims seeking to invalidate statutes similar to those already found to conflict with a basic law, thereby complicating the invalidation process. In addition, this aspect of the proposal might weaken the position of government legal advisers (a topic discussed in more detail in Part 5 of this series). If the invalidating judgment of the Court does not create a precedent, it might follow that legal advisers cannot rely on it directly when offering their legal advice concerning the constitutional validity of new proposed legislation.

The fourth part of Levin’s proposal is the adoption of an “override” (התגברות) clause in all constitutional cases. The override clause would involve a procedure with which the Knesset may re-enact a law struck down by the Supreme Court. A similar procedure already exists in Basic Law: Freedom of Occupation, but it has been used only once so far, in connection with the importation of non-Kosher meat to Israel. The procedure suggested by Levin is somewhat more complex than what exists in Basic Law: Freedom of Occupation. First, the Knesset could pass a temporary override, restoring the invalidated legislation for four years; then it could follow up by another vote for permanent restoration. At any rate, under Levin’s proposal, the override option would require only a majority of 61 members of the Knesset. Since coalition governments in Israel always enjoy at least a 61-member majority, they could always override any judgment of the Supreme Court relating to virtually all constitutional rights.

The last part of Levin’s proposal stipulates that the Supreme Court lacks authority to exercise judicial review over the basic laws themselves. Basic laws are adopted by the Knesset in the same procedure as ordinary laws, and their adoption requires only a simple majority. (Some basic laws, however, require an amendment by a majority of 61 of 120 Knesset members, and two basic law provisions appertaining to change of the election date and the waiver of referendum in the case of transfer of sovereign territory require a supermajority of 80 out of 120.) The ease of passing new basic laws or amending existing ones has led the Knesset to resort to this legislative tool with increasing frequency after the constitutional revolution, sometimes with the aim of shielding such laws from judicial review. In response, justices on the Court warned the Knesset that abuse of its constitution-making power—by appending the title “Basic Law” to matters that should be addressed in ordinary legislation (such as budget laws) or should not be the subject of legislation at all (such as personalized laws)—might result in the Court refusing to grant such laws the status of basic laws. In addition, some justices opined that amendments to basic laws or new basic laws whose contents run contrary to the very identity of the state of Israel as a Jewish and Democratic state may be subject to judicial review and could be struck down for violating fundamental principles of the legal system. (This is sometimes referred to in the literature on unconstitutional constitutional amendments as the “basic structure” doctrine.) Levin’s proposal would take away this power of review from the Court without requiring any special majority for the adoption of basic laws. The simple designation of a law by the Knesset as a “Basic Law” would bar the Supreme Court from reviewing it.

Conclusion

The Levin and Rothman proposals are directed to weaken the power of the Supreme Court to exercise judicial review of Knesset legislation. In fact, if they pass as is, it would mean, in practical terms, the end of judicial review of Knesset legislation. Even in the rare cases in which the Court would strike down legislation, the Knesset will be able to either override it or re-enact it as a basic law, thereby avoiding judicial review. Given that coalition governments control in Israel both the executive and legislative branches, the radical weakening of the Supreme Court, as proposed by Levin and Rothman, would result in a drastic change in the allocation of powers across the branches of government, especially when other changes they propose in the realm of judicial appointments, administrative law review, and the independence of government legal advisers are also considered.

The radical nature of these proposals is well captured by a recent legal opinion published by Knesset legal advisers who expressed strong opposition to the draft bill submitted by Rothman (which was submitted to them for legal analysis). In a legal opinion published on Jan. 29, they wrote:

“Our position is therefore that the proposed version of each of the said amendments, and certainly their combination, and the lack of elements restraining the executive and legislative branches in their operation—create an unbalanced and very expectational arrangement from a comparative law viewpoint. The arrangement represents a very considerable reduction of the limits imposed on the legislative and executive branch and results in serious harm to the principle of separation of powers and distribution of governmental powers which is core principle in a democratic regime. Moreover, given the importance of imposing limits on governmental power as a central tool for protecting human rights and the “rule of the game” in democratic regimes, there is a weighty concern that the proposed arrangement would allow serious harm to the protection afforded to these rights and principles.” (Translated by the authors from the original Hebrew.)

לפיכך עמדתנו היא כי הנוסח המוצע של כל אחד מהתיקונים האמורים, ובוודאי השילוב שלהם, והיעדר מרכיבים המגבילים את הרשות המחוקקת והמבצעת בפעולתן – יוצרים הסדר לא מאוזן וחריג ביותר במבט השוואתי. ההסדר מבטא הפחתה משמעותית ביותר בבלמים המוטלים על הרשות המחוקקת והמבצעת, ומוביל לפגיעה קשה בעקרון הפרדת הרשויות וביזור הכוח השלטוני שהוא עקרון ליבה במשטר דמוקרטי. יתר על כן, נוכח החשיבות בהצבת בלמים על הכוח השלטוני כאמצעי מרכזי בהגנה על זכויות אדם ועל "כללי המשחק" של המשטר הדמוקרטי, מתעורר חשש כבד כי ההסדר המוצע יאפשר פגיעה קשה בהגנה המוקנית לזכויות ולעקרונות אלה.

We fully agree with this analysis. The Levin and Rothman proposals would spell the end of Israel as a constitutional democracy with meaningful protections for human rights against rights-infringing legislation and with real checks on the powers of the Knesset. While the proposals nominally allow for some judicial review of legislation to continue, such review is extremely limited in scope—reducing Israel’s already-meager bill of enumerated and unenumerated constitutional rights to a bare skeleton of legal protections, and transferring to the Knesset the ultimate power to determine whether to follow constitutional law or not. Israel has many human rights challenges, its political culture is increasingly hostile to human rights and pluralism, and senior politicians have been heavily implicated in corruption. In light of these realities, dismantling the Court as a rule-of-law constraint on governmental power and as a defense mechanism for human rights and minority rights—albeit imperfect—could be disastrous for Israeli democracy.

The article was first published in Lawfare.