Limits to Basic Law

Some critics of Basic Law: Israel as the Nation State of the Jewish People argue that the Supreme Court has the power to review and even invalidate constitutional provisions for being unconstitutional. Eugene Kontorovich argues, “This makes no sense; any American constitutional lawyer would find the notion of an unconstitutional constitution ridiculous… if [the Supreme Court]… claims the authority to consider challenges to constitutional provisions, it will set itself up as a supreme authority that is above even Basic Law. This will put it above any checks and balances; it will be a true judicial coup…”

Contrary to Kontorovich’s understanding, the idea of an unconstitutional constitutional norms is an existing approach in many jurisdictions around the world. First, almost half of world constitutions simply prohibit, by explicit limitations, amending basic principles of the constitutional order. Second, even in countries where the constitution is silent about this issue, courts around the world have developed the idea of implied limitations on the power to amend the constitution in a manner that would affect the basic structure of the constitution or change its identity. Third, courts around the world review constitutional norms and often declare certain constitutional provisions as unconstitutional and void, in order to protect the constitutional order.

Just last month, the Constitutional Court of Uganda delivered a landmark, 814-page long, judgment invalidating a provision of a constitutional amendment extending the term of office for Members of Parliament from five to seven years, for being unconstitutional. Justice Kakuru wrote that the idea that parliament has absolute amendment powers “is a fiction based on a legal misconception.” If this was the case, the MPs “can abolish Republic of Uganda or make themselves MPs for life. Parliament can abolish the Republic of Uganda and introduce a monarchy … the argument that you can vote to amend any article of the Constitution by simple majority is misguided.” Also misguided is the argument that the Knesset Members have an unlimited power to enact Basic Laws. Can MKs extend their term to 10 or 20 years? Kontorovich’s formal approach would claim that such an enactment, as long as made by a “Basic Law,” is constitutional.

Kontorovich’s argument concerning the US is also imprecise. Some of America’s leading scholars, such as Walter Murphy, John Rawls, Samuel Freeman and Stephen Macedo, have written about the limits to the power to amend the US Constitution. Even Harvard Prof. Laurence Tribe, perhaps the authority on the US Constitution, who has called in the past for a reserved judiciary role with regard to constitutional amendments, seems willing to embrace the notion that some principles are so fundamental to the constitutional order that they can be regarded as indispensable to the system’s legitimacy. Tribe recently wrote that “it may well be that some properly adopted formal amendments could themselves be deemed ‘unconstitutional’ because of their radical departure from premises too deeply embedded to be repudiated without a full-blown revolution.”

True, the question of judicial review of constitutional norms is a complex issue and I am aware of the natural resistance to such a practice. However, the willingness to accept judicial scrutiny of constitutional norms should be connected to the constitutional amendment process. An extremely flexible amendment procedure, where a dominant executive controls the amendment process, coupled with short-term political interests and temporary majorities, increases the fear of abuse of the amendment power and justifies judicial supervision. This is very different from the American constitutional amendment procedure, which is the most rigid in the world.

In Israel, one of the biggest weaknesses of the constitutional structure is that the amendment of most of the basic laws requires no special majority, so that a vote with just a few MKs present could amend a basic law, or even enact one. This is what Ariel Bendor calls “the unbearable lightness with which changes can be made in basic laws.” When basic laws are easily amended, where the legislature is composed of a single chamber, coupled with the dominance of the government in the legislative process, there is a greater fear for an abuse of constituent power. Judicial review of basic laws thus seems necessary. Otherwise, the Knesset would be practically omnipotent and would be able to immunize any law from judicial review simply be labeling it as a “basic law.”

As Justice Elyakim Rubinstein noted in the biennial budget case, “The restraint that the constituent authority takes in amending the constitution obliges also restraint from the court; but the natural continuation is that the less restraint is the constituent authority when it amends basic principles, the willingness of the court to review basic law should be wider.”

Unfortunately, over the past few years, there has been a tendency in Israel toward tinkering with the basic laws. Amendments to the basic laws are increasingly being adopted simply to respond to political events and for political convenience. For example, between May 13, 2015 and July 30, 2015, the Knesset enacted three temporary basic laws regarding the biennial budget; allowing ministers to resign from positions at the Knesset, and removing the limitation on the number of ministers, which apply only during the term of the 20th Knesset.

The context of these amendments, and others, raises the fear that these are not necessary due to some urgent need but derive solely from short-term political interests – precisely those meant to be limited by a constitution. Consider, for example, the Fifth Amendment to the Basic Law: The Government, concerning deputy minister with a status of a minister, which was adopted on January 2018. This amendment passed first reading on Monday morning after a quick debate in the committee and passed second the third readings the following day in the afternoon. In other words, the legislature used its authority to amend the basic law for a personal political necessity, in a day and a half, without a serious political or public debate.

The use of enacting and amending the basic laws for political considerations, often to be applied solely temporary and without public deliberation, has a significant impact on the constitutional framework of the country. The result of these actions is a continued decline in the status of the basic laws. As the overly flexible legislative process is controlled by the government, in Israel, the only real balancing authority to the power of the majority, is the Supreme Court. Do not take away its ability to protect fundamental rights or the constitutional order.

The writer is a senior lecturer at the Harry Radzyner Law School, Interdisciplinary Center Herzliya and the author of Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press, 2017).