The Rationale for Cancelling the Reasonableness Clause

In a democratic nation, the delicate balance between the judiciary and the legislative branch is a fundamental and often fiercely debated issue. It is a conversation that has taken center stage in Israel. At the heart of this debate lies a recent law that seeks to return the limits of judicial discretion to what it was 30 years ago, specifically targeting the application of “reasonableness” as a means to challenge government decisions.

This law was passed as the first stage of a broader judicial reform legislation package that the Knesset seeks to pass. While an extreme reasonableness clause exists in Israeli law, inherited from British law, its current form has no basis in law and was actually written into a ruling by former Supreme Court justice Aharon Barak. This judicial power grab gave the Supreme Court the ability to strike down government decisions by simply stating that the decision was unreasonable, which was another way of saying that the justices did not like the decision.

The Israeli government, as the respondent in this crucial case before the Supreme Court, staunchly defends the law passed recently in the legislature, contending that it is not merely a matter of policy but a principled stance aimed at preserving the essence of a democratic separation of powers. To gain insight into their perspective, we present below an excerpt from the respondent’s (i.e. the Government’s) brief, encapsulating the nuanced arguments and legal reasoning put forth to justify the necessity of this law.

In The

SUPREME COURT OF THE ISRAEL

___________

HCJ 5658/23

___________

Movement for Quality Government in Israel et al.,

v.

The Knesset et al.,

––––––––––––––

ON WRIT OF ORDER NISI TO THE KNESSET

(Excerpt from the Respondent’s brief)

Foreword

The primary question in these proceedings pertains to the boundaries of the judiciary’s authority, specifically of this esteemed Court.

The position of the Government of Israel is that this esteemed Court is prohibited from granting relief concerning the validity of a Basic Law or an amendment to a Basic Law, as per the petitions’ request.

This position is grounded on the principle of the people’s sovereignty; on the principle of the separation of powers; and on the hierarchy of norms in Israeli legislation, recognized by this very court itself.

It also rests upon the fact that judicial review of constitutional amendments does not exist in any lawful Western country without explicit authorization in the constitution itself; that judicial review of the pinnacle of democratic decision-making is not “judicial”, there being no statutory source for the authority to adjudicate in accordance with, leading possibly to anarchy; and upon the rejection of the petitioners’ predicate that the court is an omnipotent governing body supreme over the Basic Law that granted its authority; and rejection of their assumption that absolute justice and morality will always reside solely in the hands of the judiciary.

The Government of Israel contends that this esteemed court has not the authority to place itself above the sovereign of the state and assume for itself the power of judicial review over Basic Laws which form the pinnacle of the normative pyramid in the Israeli judicial system.

The Government of Israel contends that the state of Israel being a democracy, the source and authority of all government agencies is the sovereign – meaning the people – the citizens of Israel. Israeli citizens are represented in the Knesset, in a manner established in Basic and regular laws, thus authority, and its source are derived from the rules established by the Knesset, the Basic Laws and none supersedes them.

The Government of Israel contends that as Israel abides by the rule of law, no person or body stands above the law. And should the law be subject to Basic Laws, as per the doctrine developed by this esteemed court, then no man or body stands above the Basic Laws.

These are the cornerstones of the system of governance in Israel, as proscribed by its nature as a democratic regime and as this esteemed court has noted as well, time and again. Therefore, the Government of Israel contends that infringing upon or drafting changes to these laws are not within the esteemed court’s scope of authority, the court acting by power of the broad authority invested by the sovereign in the Basic Laws and other legislation and within its boundaries.

The matter at hand in current proceedings is the question of the judiciary’s and this esteemed court’s scope of authority. The Knesset’s authority to legislate Basic Laws is undisputed. The burden of proof lies with the petitioners to demonstrate that there is no limit to the powers of this esteemed court, that the last word is forever its sole purview, even with regards to the sovereign’s most fundamental decisions of principle. The Government contends that in a democratic country, such negation of the people’s sovereignty is impossible (the issue of constitutional Eternity Clauses, is a different and separate matter irrelevant to Israel, as will be addressed below).

Absent a decision by the sovereign or its representatives to grant this esteemed court the power to reign supreme over the highest decisions of the sovereign itself, it is the Government’s contention that this esteemed court has no authority to generate such a source of authority on its own. This esteemed court’s powers were not granted to itself by itself but by the sovereign via Basic Law. This esteemed court has not the authority to discuss the validity of norms at the level it itself derives its authority from, namely, the Basic Laws; most especially Basic Law: The Judiciary which is itself the source of its authority and even more so when the amendment at issue pertains to the scope of judicial authority of this very court.

Moreover, as regards amendment 3 to Basic Law: The Judiciary restricting the judicial use of the “reasonableness” standard, the Government of Israel contends that the petitioners’ arguments for its repeal serve as a fine example of the potential absurd use that can be made of the judicial review doctrines the petitioners seek to advance. The petitioners urge this esteemed court to expand its own authority in contravention of the sovereign’s declaration, in order to hypothetically avoid extreme cases of basic legislation that shake the very foundations and violate Israel’s democratic nature. To reiterate, the Government of Israel objects to the doctrine the petitioners seek to create. Nonetheless, the Government of Israel will demonstrate how the promise to reserve the doctrine solely for extreme cases is broken by the first case to come before the Court. Restricting the reasonableness doctrine does not come close to the promised “extreme” standard.

Considering all the above, the Government of Israel contends that there are no grounds for hearing the petitioners’ arguments as they should be dismissed on the threshold. The Government of Israel contends that rejecting the petition on its merits regarding the amendment under discussion is insufficient; the Court must reject the idea that Basic Laws and amendments to Basic Laws are open to judicial review in principle. This esteemed court must revoke the order nisi it issued, dismiss the petitions on the threshold on grounds of non-justiciability, being outside the bounds of the Court’s authority, and charge the petitioners with costs.

The Government of Israel finds it relevant to note at the outset that the timetable constraints set by this esteemed court have greatly violated the rule according to which litigants, all litigants (including a government) are entitled to their day in court. These constraints created a highly compressed timeframe within which to draft the government’s reply, an unprecedented timeframe compared to other petitions the Court has heard in the past, particularly petitions regarding Basic Laws or their amendments, and specifically considering the depth, severity, and scope of the issues this petition invokes. Even more so in light of the fact this esteemed court has chosen to irregularly forgo the preliminary hearing precisely in proceedings that touch on the very foundations of constitutional law.

Under these harsh conditions, the justification for which is far from clear, the reply was forced to be brief where length could and would have been appropriate. Therefore, the Government will petition to complete its arguments as far as necessary at the set time of the hearing – as well as subsequent to it, on additional set times for hearing arguments, or at the very least to submit them on paper within an appropriate and suitable period of time.

The following arguments do not presume to be exhaustive. Most are presented as a way of demonstrating how the creation of the proposed judicial authority gives would be petitioners the opportunity to call upon the Court to make extremely problematic and abusive use of such authority.

Introduction

On the 24th of July 2023, Amendment No. 3 to Basic Law: The Judiciary was passed on the third reading in the Knesset. The amendment added subsection 15(d1) to section 15 as follows:

Notwithstanding all contained in this Basic Law, whomsoever has the lawful judicial authority, including the Supreme Court sitting as the High Court of Justice, shall not deliberate on the reasonableness of a decision made by the government, the prime minister or any other minister and will issue no order therein; in this section, “decision” means any decision, including one pertaining to appointments or the decision to refrain from exercising any authority.

The bill was published and presented to the Knesset by the Constitution, Law and Justice Committee, on the 5th of July 2023. Between the 25th of June 2023 and the 19th of July 2023, the Constitution, Law and Justice Committee held deliberations.

Immediately subsequent to the law’s confirmation, the present eight petitions were filed (later joined by additional petitions and other amici curiae this esteemed court rejected in its 22nd of August 2023 decision).

The petitions present an array of arguments, the scope of which precludes reviewing or even addressing them all and considering the short time frame for carrying out proceedings ordered by the Court – precluded by time constraints as well. (Compare the time frame to the timetables set for HCJ hearings in HCJ 2905/20 The Movement for Quality Government in Israel v. the Knesset (2021), HCJ 5969/20 Shafir v. the Knesset (2021) and HCJ 5555/18 Hassoun v. The Knesset (2021) in which Basic Law amendments were also challenged, if on less foundational questions).

On the 9th of August 2023 this esteemed court issued an order nisi, seemingly over the entirety of the petition’s claims without limits or focus, and without requesting preliminary replies or a preliminary hearing before this esteemed court.

The primary claims the respondent seeks to address (in detail or expansively) are the following:

• The amendment to the Basic Law: The Judiciary is an unconstitutional constitutional amendment since it nullifies the Democratic or Jewish nature of the State of Israel which are the basic principles at the bedrock of the constitutional structure and the like.
• The amendment to the Basic Law: The Judiciary constitutes an abuse of the constituent authority, on the grounds that it does not meet the standards the Court laid out in the Shafir case [HCJ 20/5969 Shafir v. the Knesset].
• The legislative process was flawed both according to section 80 of the Knesset Rules of Procedure and due to the (alleged) speed of legislation, flaws in the quality of the Constitution, Law and Justice Committee discussions or the lack of widespread consent.
• The amendment to the Basic Law: The Judiciary exposes security forces personnel to international legal proceedings, a consideration not given its sufficient due at the time of the enactment, and the Court must protect security forces personnel from the legislation.

To reiterate, the Government of Israel contends that the focal issue at hand is the question of this esteemed court’s authority, which is a derivative of the question of sovereignty: the question is whether this esteemed court has the authority to exercise judicial review of the Knesset’s Basic legislation or of amendments to Basic legislation; in particular, whether it has the authority to prevent the sovereign from amending the section that grants authority to this esteemed court itself.

This is the foundational question of the Israeli system of governance: does supreme sovereignty reside, at the end of all days, in the hands of the People, through their representatives in the elected branches of government. The petitioners are asking the Court to overturn foundational premises, the very principles it based itself on, over and over, and declare that supreme sovereignty lies in its own hands.

This is likely the most fundamental question of principle to be discussed in the history of Israeli jurisprudence. The Government of Israel contends that the answer should be self-evident and the hearing superfluous. However, as the court has decided to convene and discuss it, the Government of Israel will present the main points of its claim before the esteemed court.

It shall be clarified at the outset that the Government of Israel contends that the question of the Court’s limits and the source of its authority, and conversely – the question of its subordination to the people’s sovereignty and to the rule of law – is the central question of these proceedings. The meaning and merits of the amendment to Basic Law: The Judiciary are secondary. This brief will, as a matter of course, address these in due detail as well, however, the approach to these matters is subject to the question of whether they are even open to judicial hearing and review. The discussion of the amendment shall be filtered through the question of the very existence of judicial authority over Basic legislation.

That is to say, the Government of Israel contends that it is insufficient to reject the petition itself on its merits in this case but rather that the idea that Basic legislation and amendments to Basic legislation are open to judicial review must be rejected in principle.

Therefore, the Government of Israel hereby petitions the esteemed court to settle the question of principle by dismissal, and not make do with rejecting the petition simply on grounds that this amendment does not meet the standard for intervention had the Court the authority to intervene.

Thus, the following is the order of our claims (which are concise under duress of time):

We shall commence with introducing the background, presenting the historical boundaries of judicial review in Israeli jurisprudence as the basis for discussing the question of the Basic Laws’ status as the source for judicial review of legislation in Israel.

Next, we will present the precepts of governance the Government of Israel views as the bedrock of the democratic nature of the State of Israel:

• The principle of the peoples’ sovereignty, according to which it is imperative that the people determine their destiny by means of their representatives, who establish the norms that bind all state authorities and citizens;
• The principle of the rule of law, according to which it is imperative that the rule of a democratic state is the rule of laws, not people – not the governors, not the legislators and not the judges;
• Judges and courts derive their authority from Basic Laws and other legislation; therefore, the court cannot be supreme over its own source of authority;
• This esteemed court derives its authority to review legislation, according to the doctrine adopted since the 1990’s, from the supremacy of the Basic Laws enacted by the Knesset as the constituent authority, and the judiciary’s role is oversight of their supremacy.

We will then turn to the idea of judicial repeal of constitutional chapters, or constitutional amendments on the grounds of their content, namely, “the unconstitutional constitutional amendment” doctrine. We will argue that this doctrine contravenes core concepts of democratic law, and it is no accident that it has no parallel throughout lawful democracies the world over. We will present the paradox inherent in the doctrine that entails some source from which to derive the judicial authority, a source which is nonexistent, and discuss, in this context, the mechanisms extant in other countries.

The next chapter will deal with the procedural judicial review standards the petitioners ask the Court to adopt – the claim of insufficient procedure, the claim to abuse of constituent power and the issue of interpretation. We will further discuss obiter dicta by Justices of this esteemed court on this matter. The Government of Israel’s primary claim is that there is no authority from which to create such standards out of whole cloth, not even case law; that these standards have no clear boundaries; that using these standards is prone to masking judicial review of the Constitution itself, as the petitioners seek to do in this case. Needlessly, the Government will argue that the current case does not come close to the litmus test of these doctrines as they have been fashioned by this esteemed court’s case law.

We will then discuss the amendment to the Basic Law: The Judiciary regarding reasonableness and uncover how the petitioners’ claims advocating its repeal demonstrate to what degree adopting these doctrines should be avoided. We will briefly present the amendment and its impact on the set of tools for reviewing government actions at the disposal of the administrative courts in Israel.

We will discuss the question of the legitimacy of legislation or basic legislation to restrain a governing body within the framework of the dialogue between the branches of government. Regarding the merits of reasonableness, we will see that its usage as a judicial review standard has been controversial among the Justices of this esteemed court (alongside the public and political voices) from its inception. Prominent jurists opined that it should not be used at all or used only in limited capacity. We will present the usage of this standard in comparative law as well. Amendment No. 3 is more moderate than many proposals for constraining the use of the reasonableness standard, both in the academy and within this court past and present.

Against that backdrop we will clarify that the petition for judicial intervention in a Basic Law established by the Knesset to restrain and limit the use of the reasonableness standard, demonstrates how this doctrine is vulnerable to inappropriate usage and as such should not be adopted.

Finally, we will briefly address additional claims from the petitioners – regarding the international repercussions of the amendment to the law and other claims of principle the Government AG made in the brief she submitted.

Background

Strolling through the petitions, one might get the impression we’re navigating virgin land, never before tilled or planted. Yet, ever since human beings began grappling with the notions of justice, law, jurisprudence, governance and sovereignty, these questions surfaced and were discussed, and theories and doctrines were slowly formulated, beginning in the words of the first Israelite prophets and the first philosophers who delved into theses of governance and culminating in political theorists of the modern era; this esteemed court itself has not shied away from addressing them.

The petitioners ask the esteemed court to deviate from preeminent foundational precepts, premises widely accepted up until recently. It has always been obvious that in a system of law, judges are subject to the law as established by someone other than the judges, to whom they must defer. Judges are not masters of themselves, nor are they masters of the law; their actions are circumscribed by the law and the Basic Law; just as are the other government bodies. At times, if the letter of the law is clear they cannot give succor. Their politics or values cannot supersede a clear law or find their way into its language.

The creator of laws is the legislature. It is they who must aspire to just laws. However, modern democracies are not content to trust the legislature. Many of them create mechanisms that check and balance the governing power, including the legislative authority, in order to prevent a slide into harmful and unjustified government use of power.  The courts review the actions of the legislative and executive branches of government. However, in their turn, the courts do so within the bounds of the authority invested in them, the source of which is also of the sovereign’s direction through its representatives.

Judges possess an array of tools with which to mitigate the clash between law and justice. Sometimes they can use interpretation to allow justice to coexist with the law. At other times they can orchestrate a compromise and avoid forcibly laying down the law. At times they have discretionary latitude to take part in shaping law that is not fully detailed and even fashion arrangements as subordinate partners to the legislature.

All these techniques are possible; however, wherever statutory law exists – they are all bound by its borders. As the Honorable Justice Procaccia wrote in the context of interpretive bounds:

The general values of the system, including constitutional principles derived from Basic Laws and case law, may be incorporated into purposive interpretation of the legislative norm so long as it resides within the frame of the extant language and does not go beyond it. Purposive interpretation is not a wild horse galloping unbridled over the plains. It is more akin to a trained horse moving down a well-trodden path, defined by the language and formulation. (

Her words apply just as much to the rest of the measures judges employ when seeking to reconcile the law with what they see as justice: there are boundaries to the scope of action they are granted.

The rule of law is one of the revolutions Judaism brought to the world. “Set a king over thee,” Moses directed the Israelites on the eve of their entrance to the promised land, set forth and be as all other nations who crown kings. However, your king shall not be all powerful. The boundaries of his actions are the boundaries of law, the boundaries of the written text:

And it shall be, when he sitteth upon the throne of his kingdom, that he shall write him a copy of this law in a book out of that which is before the priests the Levites:

And it shall be with him, and he shall read therein all the days of his life: that he may learn to fear the LORD his God, to keep all the words of this law and these statutes, to do them:

That his heart be not lifted up above his brethren, and that he turn not aside from the commandment, to the right hand, or to the left: to the end that he may prolong his days in his kingdom, he, and his children, in the midst of Israel. (Deuteronomy 17 18-20).

For the first time in human history, it was stipulated that the king is not a god. He dwells among his fellows and his heart must not rise above them. He must write a bible for himself and keep it on his person so as not to forget that he operates under the law and by its authority. He is not supreme over the law: he is its servant. And should he consider himself above the law, his kingdom will not last. Judaism gave the world the idea of a constitutional monarchy.

In those days the king was a judge-king. Separation of powers was not as it has been in the past two centuries. However, the king sitting in judgment was himself subject to the law. Kings of the House of David, known also for their role as judges, realized the biblical monarchy model in which the judge-king was subject to the law.

When Moses describes the future king of the nation of Israel, he does not describe a king who makes law, but one who is subject to it… in fashioning the figure of the king as one who submits to the laws of the Bible, Moses carries out another revolution. In the ancient world the king was never perceived as one who submits, only one who is submitted to” (Mica Goodman, Moses’ Last Oration, at 29, 67).

Then as now, the principle of the rule of law is a pillar of the judiciary and of public law. Among the Justices of this esteemed court itself, no one ever dreamed of suggesting that should a contradiction arise between the law as it should be (according to the judge’s personal viewpoint) and the law as it is, the Judge’s opinion supersedes.

This is not a transient perception. Even some of the Justices on this panel have only recently emphasized the gap between the law as it ought to be and the law as is, stressing that they were barred from acting against the law. See for instance in the ruling of Justices Amit, Barak-Erez and Baron in response to a petition asking them to pronounce an obligation to nominate a representative from the opposition parties to the committee for judicial selection:

It is no coincidence that have we… have called on the legislature to enshrine the favorable practice first developed by the 13th-17th Knessets, as it is the appropriate and desirable normative state. “I … will hasten it in his time” (Isaiah 60 22), and hope the Knesset speedily enshrines the opposition parties’ right to appoint one of the two representatives to the judicial selection committee, with due consideration for special circumstances regarding the coalition’s size and make up. (HCJ 20/4956 The Movement for Quality Government in Israel v. the Knesset (2020) ).

Similarly, President Hayut wrote regarding the judiciary’s periodic inadequacy:

[I]t would seem all judges come to face a difficult case in which despite their sympathy with a litigant’s claims find no legal path open to granting the remedy requested […] the law’s inadequacy uncovered in these instances can cause the judge, at times, great frustration. But we must bear in mind that the limits of law are the limits of the judge, and there is a price to pay for violating boundaries of the laws and judicial rules. (HCJ 12/681 Greenspan v. Attorney General [at 841] (2012).

Indeed, as we will expound below, we can find no other lawful country in which the judiciary is placed above the supreme source of authority in the normative pyramid – usually a constitution, or parliament in the absence of one. The examples the petitioners seek to bring are inapt: in most countries it is unthinkable. In other countries in which the constitution includes an eternity clause (stating that some provisions can never be altered), the court’s authority is derived from those clauses; in still others, developing countries for the most part, the courts recognized a “basic structure” inherent to the enacted constitution which bars a deviation from it. Even these outliers cannot reflect on Israel, which has no full constitution, and thus no “basic structure”; we will expand on this issue later.

The basis for discussion – precepts of governance

D.1. The principle of the peoples’ sovereignty – the people determine their destiny by means of their representatives who establish binding norms

The first premise that serves as the basis for any constitutional discussion is the foundational democratic claim according to which the people determine their destiny. In a representative democracy, this determination is realized by the people’s representatives elected in free and fair elections. The question of who holds supreme authority over the people’s destiny is key. It isn’t measured by “how many times was the supreme authority exercised”? but rather by its very existence and by who wields it. The supreme authority polices those who are subject to it, regardless of the number of times it acts on its authority. Usurping the authority to determine the people’s destiny in its most foundational sense, from the people’s elected representatives – is no less than a dissolution of democracy, even if the authority be invested in an enlightened body; even if said body is persuaded that its actions reflect what the people “truly” want.

Within the framework of separation of powers in practice in all known democracies, parliament’s role is establishing the rules, viz, the laws. In a constitutional democracy – the people’s representatives establish the constitution or at the very least ratify it. Granting the authority to establish the constitution and its amendments in the hands of an unrepresentative body is a violation of the supreme principle of the people’s sovereignty. Therefore, granting an unrepresentative body the authority to repeal amendments to Basic Laws collapses the foundations and basis of a democratic system of government. It creates a ruling body lacking democratic legitimacy, with no external checks or balances to restrain its actions.

D.2 Rule of Law principle – the law governs, and government agencies derive their authority from therein

The second premise foundational to the discussion is that the law governs the country, and all are bound by it (law means the normative pyramid and the hierarchy it contains).

The law that governs is the law arrived at by democratic process, which grants legitimacy to the sovereign’s representatives to shape the sovereign’s will in written rules set down in binding and defining text. This is the law (or constitution) and in democratic countries the law rules: not rule of kings, not rule of institutions, not rule of people – rule of law; all other institutions operate by its authority and within its bounds.

Rule of law is manifested both in formulating rules that bind all – people and governing institutions – and in establishing the procedures for the workings of the mechanism itself, including all its components. Establishing procedures includes establishing the authorities of each body, institution, and branch of government within the government institutions and the boundaries of those authorities.

Rule of law means that the law reigns supreme, and no natural law, moral principle or sense of justice stands above the pinnacle of the normative pyramid. These last may find a place, at times, in the interpretation and application of law (on which we won’t elaborate here), but not in determination of the laws themselves if they have not been incorporated therein in formal procedure by the people’s elected representatives. This, due to their subjective and changeable nature, among others. To grant controlling power to unwritten principles unrecognized by the law is to violate all foundational principles of law and governance: uniformity, predictability, equality; principles in the absence of which anarchy emerges.

The democratic apparatus allows for a state and government system for all citizens, encompassing all their differing sets of values by an agreed upon mechanism which translates these stances and principles into binding norms. Rejecting the recognition that these stances and principles are subordinate to the democratic apparatus that serves the sovereign in crafting its laws in light of its values is a rejection of democracy.

A state wary of a constitutional crisis must be infinitely more careful – rule of law means clear rules for decision on controversial matters of values, without which, the rule of the day is “every man does that which is right in his own eyes” (Judges 21:25).

And, therefore, whatever form the commonwealth is under, the ruling power ought to govern by declared and received laws, and not by extemporary dictates and undetermined resolutions, for then mankind will be in a far worse condition than in the state of Nature if they shall have armed one or a few men with the joint power of a multitude, to force them to obey at pleasure the exorbitant and unlimited decrees of their sudden thoughts, or unrestrained, and till that moment, unknown wills, without having any measures set down which may guide and justify their actions. (John Locke, Second Treatise on Government).

D.3. Judges and Courts derive their authority from the legislation or from the Basic Laws and they cannot supersede their own source of authority

As will be further elaborated, this esteemed court pinpointed its authority to review legislation in the Basic Laws, which it viewed as constitutional. However, there is no source authorizing the Court to review Basic Laws. The Court cannot manufacture its own authority. Hence, past declarations of this esteemed court, be they judicial pronouncements or obiter dicta, are irrelevant and cannot create such authority out of whole cloth.

Such a conclusion is logically inevitable, and it arises from the Basic Laws’ formulation as well. This esteemed court’s authority to issue orders against government agencies is established in section 15 of Basic Law: The Judiciary. In addition, section 20 of Basic Law: The Judiciary establishes the Court’s rulings as binding for the lower courts. The Basic Law is that which grants authority, i.e., the sovereign through its representatives has granted authority. Accordingly, this sovereign (through its representatives in the elected branches of government) can also make changes. Placing the Court’s authority above its own source of authority, particularly in proceedings that pertain to the judiciary’s bounds of authority is an absurdity that contravenes the principles of rule of law, separation of powers and the people’s sovereignty.

D.4. The authority for legislative review according to this esteemed court’s own doctrine- is the perception of Basic Laws as constitutional, and the court as appointed by the sovereign to guard the constitution

As is well known, this esteemed court was, up till the late nineties, adamant in its opinion that in the Israeli system of law, the sovereignty of parliament was unquestionable. However, when the Supreme Court assumed the authority to review legislation subsequent to the enactment of Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, it did so on the grounds that it was authorized to do so by the sovereign in whom is invested constituent authority to establish Basic Laws with normative status that supersedes regular legislation. This esteemed Court viewed these Basic Laws as a quasi-constitution and ruled that the restriction clauses in the laws grant the Court the authority to ensure parliament as legislature does not breach the limits set upon it in the constitution by parliament as constituent power. Based on the theory of the “two crowns” of the Knesset, as both legislative and constituent authority, the status of the Basic Laws regarding human rights was expanded to all Basic Laws , meaning all Laws entitled “Basic Law” came to be considered of constitutional status, including even those that lacked an entrenchment or limitation clause (see EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset (2003)).

This, then, was the thesis presented by President Barak at first (see CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village (1995)) later adopted as the theoretical and practical basis for judicial review of legislation in Israel:

The Court is the guardian of the constitution appointed by the sovereign.  The people’s representatives, wearing their constituent authority crown, granted Basic Laws the status of a constitution. The authority to do so derives directly from the sovereign, the people. In order to implement the people’s will, legislation must not contravene the constitution. In such a way the sovereign granted the Court the legitimacy to review regular legislation, as their appointed emissary (Mizrahi Bank at 356 and 391).

The court’s role in judicial review, ala the Court’s ruling, is to serve as an oversight and supervisory body on behalf of the people, the sovereign and its representatives in the legislature, to ensure that the latter don’t breach the limits set by the sovereign in the constitution through its elected representation (Mizrahi Bank at 420; see also HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance (1997)).

In other words, the theoretical basis for judicial review of legislation in Israel relies on the most fundamental democratic idea – that authority was invested by the sovereign. The Court took care to always base the process of transforming Israel into a constitutional democracy in which the Court is authorized to repeal the Knesset’s legislation on the endeavors of the constituent authority, the Knesset, whose decisions represent the sovereign’s choices. Leading back to the sovereign’s will leaves the system of governance subject to the people’s will, and so bases the legitimacy of judicial review on elementary democratic principles.

This theoretical basis for judicial review is not the Supreme Court of Israel’s invention. It primarily echoes the principles upon which the American constitutional tradition based the source of its authority for judicial review of legislation, as did other countries where the constitutional democracy model was adopted; the subject is well known (see Justice Barak in Mizrahi Bank at 420; Hamilton, Madison and Jay, The Federalist Papers No. 78).

D.5. The court itself reiterated and clarified the basis for everything– the court itself is subject to Basic Law

The Supreme Court has clarified time and again the fact of its subordination to Basic Laws, since such subordination is essential to the theory it constructed for its authority to review legislation. It was reiterated and stressed over and over, both in rulings and in academic writing, to make the case for the democratic legitimacy of reviewing legislation, being derived as it was from the sovereign:

By repealing a Knesset law on the grounds that it contravenes Basic Law, the Court does not usurp democratic authority from the sovereign; the people are sovereign; the Court realizes the sovereign (the People)’s will through its representatives in the Knesset as expressed in the Basic Laws. Should our judgement interpreting Basic Law meet with the Knesset’s disapproval, it is at liberty to change the Basic Law and establish a different constitutional arrangement.

This esteemed Court stressed and reiterated this principle only recently, in cases in which petitions requested its intervention in the content of Basic Laws. The Court rejected this attempt by relying, inter alia, on the same democratic principle of the people’s sovereignty and supremacy at the pinnacle of the normative pyramid:

This Court’s authority for judicial review of primary legislation is derived from the normative supremacy of the Basic Laws. Thus, there is difficulty in exercising judicial review of Basic Law content, as these Basic Laws are the pinnacle of the positive hierarchy of norms from which the Court itself derives its powers.

In similar fashion:

Should we usurp the constituent branch’s power and exercise judicial review of its decisions – with no explicit authority – such usurpation can be seen as an abuse of judicial review authority the very existence of which relies on the implicit authority granted by the constituent-legislature in the Basic Laws’ formation.

It must be noted that up until the Court’s declaration of a constitutional revolution, judicial review of legislation was limited solely to the authority of Basic Laws that incorporated formal entrenchment, viz, a provision in the Basic Law granting its entrenchment in a super-majority. This was implemented in a few cases, such as HCJ 98/69 Bergman v. Minister of Finance (1969).

The possibility of exercising judicial review of (regular) legislation outside constitutional authorization was invoked merely as a speculation, in obiter dictum in HCJ 142/89 LAOR Movement v. The Speaker of the Knesset (1990), at 550, while stipulating that although repeal of legislation on the grounds of fundamental principles was possible on a theoretical level of jurisprudence, it must be determined that such a possibility was non-justiciable. Justice Barak noted that “should we do so, the public would view us as in breach of the social consensus on the judicial role and authority in Israeli society. Israeli society’s perception of the judicial role does not align with such farfetched judgements”. If so regarding regular legislation, how much more so regarding Basic legislation.

Following enactment of the Basic Laws, this hypothetical possibility (in obiter dicta alone) was relegated to clearly apocalyptic situations, since on the backdrop of the existence of Basic Laws it was unthinkable outside of cases in which “the constitutional amendment infringes on core democratic principles and negates the minimal components necessary for democratic rule” (HCJ 6427/02 The Movement for Quality Government in Israel et al. v. The Knesset et al. (2006)) or “in extremely irregular cases or for laws that shake the very foundations of the constitutional and democratic structure and threaten to topple it” (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance (2009) at 105). The Court then, was cognizant of the risk inherent in assuming the authority to repeal legislation without a source of authority in a written constitution and with no basis of a directive from the sovereign as is essential to the democratic idea.

The Government contends therefore, that even accepting outlier apocalyptic scenarios – there is no theoretical basis that can uphold or justify even these obiter dicta (including as regards to regular legislation). The question is not whether we seek to avoid shaking the foundations (a unanimously shared sentiment) but rather which branch of government has been authorized by the sovereign to determine what those foundations are, and what constitutes their “shaking”. Thus, these obiter dicta violate core democratic principles and in practice may threaten the rule of law, the separation of powers and the people’s sovereignty.

D.6. Judicial review of Basic Laws – altering the foundational precepts of the relations between the branches of government and undermining the democratic basis of the people’s sovereignty (regime change)

To repeat, according to the theory developed by this esteemed court in the Mizrahi Bank decision, the Knesset as constituent authority enacts Basic Laws. The current claim that the Israeli courts are authorized to repeal Basic Laws as well, threatens the ruling in this decision and seeks to nullify it.

The primary reasoning for the conclusion that the Knesset is invested with constituent authority lies, we know, in the Harari decision, thus:

The First Knesset assigns to the Constitution, Law and Justice Committee the preparation of a proposed constitution for the state. The constitution will be made up of chapters, each of which will constitute a separate Basic Law. The chapters will be brought to the Knesset, as the Committee completes its work, and all the chapters together will constitute the constitution of the state.

However, this reasoning suffers well known weaknesses, discussed at length in the literature as well. Indeed, a constitution should have been written, and a constituent assembly was chosen for this purpose. However, the assembly adopted a “transitional law” on the February of 1949, with a coalition majority of 50 in favor and 38 objecting, granting it the power to rule as a legislature rather than perform the duties it was elected for. The Harari decision of June 1950 was adopted after a single plenum reading and not as a law or constitutional text, by a body originally elected by the people for different purposes and one that would have been dissolved if not for said “transitional law”.

In any case, the decision states, as its language implies, that the Basic Laws will be combined into a constitution at a later date, not that each one would serve separately as a supra-legal text from the moment of its enactment. The text does not imply founding a permanent constituent assembly that should exist decades after the legal assembly elected for such purpose be dissolved and which would simultaneously adopt a constitution, amendments to the constitution and regular legislation by simple majority. The Knesset never determined that the process of crafting a constitution had been concluded and many of the MKs who voted on the Basic Law: Human Dignity and Liberty, expressed the idea that it would become part of a future constitution, but was not immediately constitutional at the time of its enactment.

On this backdrop, it is important to point out the tension between the Mizrahi Bank decision and the current claim. One cannot synchronize the court claiming in the first instance: we are obligated to exercise judicial review of legislation since the Knesset, wielding its authority as constituent power formulated a hierarchy of norms, and as interpreters we must invalidate a lower level norm that contradicts a higher level one”, then turn around and add:” on second thought, we can also review norms at the highest level”.

The currently suggested expansion of the Harari decision, a shaky foundation enough on its own for a constitution that allows for judicial review of primary legislation, is akin to adding a ton of bricks to a house built on quicksand. Since the judicial review does not rely on explicit authorization, but on the mere existence of a hierarchy of norms combined with the definition of the judge’s role as interpreter, the authority to repeal laws is granted to all who serve a judicial role, junior to senior (see for example, CC (TA) 4696/01 The State of Israel v. Handelman (2003)). Now it seems to be the suggestion that any judge, religious arbiter or registrar can determine that Basic Law: Human Dignity and Liberty, for instance, is invalid due to its contradiction of foundational principles of the judicial system enshrined in the declaration of independence or of formulations in other Basic Laws; and after determining so, the authority to appeal will follow the judicial hierarchy, and until the issue should be resolved at the highest court (and subject to its authority to depart from its precedents) the primal norms of the judicial system shall be obscured by judicial fog.

In the Mizrahi Bank decision, the authority for judicial review of Knesset laws was established by deviating from the oldest principle of Knesset sovereignty on the basis of reasoning far more farfetched than that of the Supreme Court of the United States in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) – that is to say, the judiciary’s created both a constitution and the authorization of the court to repeal laws on its basis in one fell swoop. And yet, in the current petition, the court is asked to stretch its authority ad absurdum: to determine that it is permitted to restrict even the actions of a constituent assembly, to wit – the Knesset, whom they have judged to be still invested with the authority of the constituent assembly (meant to disperse no later than the 1st of October 1948).

Considering the above, accepting the idea that the court can exercise judicial review over Basic Laws means reversing the basic structure of governance in Israel, and placing one ruling body above the law and above the sovereign. The meaning of such is that the citizens of Israel are no longer sovereign or free to determine their destiny and craft the supreme principles of their rule, the rules of governance, their bill of rights or the identity of their country.

This analytical failure has practical repercussions. The people’s sovereignty is realized by their ability to fashion basic norms in the country through their representatives. The authority of the Court to repeal Basic Laws means rejecting all possibility of setting balancing points or boundaries of authority over the Court against the other branches of government, unless the court itself agrees to them. In other words, the court will no longer be subject to the will of the people regarding the limits of its own authority but only, in practice, to its own will. The idea that the Court can nullify the people’s ability to create normative change in the relations between the branches of government is unconscionable on democratic grounds. He who is subject only to his own will is subject to nothing. Rule of law or the people’s sovereignty do not apply to such as he.

The idea of judicial review over Basic Laws has another flaw regarding the relations between the invested authority and the source of that authority. This esteemed court derives its authority from Basic Law: The Judiciary. It has none on its own. It acts on the strength of the law and within its bounds. Consequently, if the Court has the power to hear the merits of amendments to Basic Law: The Judiciary, it supersedes its own source of authority.

If the court so acts, it will assume the position of Baron Munchausen pulling himself out of a mire by his own hair, akin to the axe, saw and rod, against whom Isaiah issued his echoing charge:

Shall the axe boast itself against him that heweth therewith? or shall the saw magnify itself against him that shaketh it? as if the rod should shake itself against them that lift it up, or as if the staff should lift up itself, as if it were no wood (Isaiah 10:15).

This applies to any intervention of the esteemed court regarding the validity of Basic Laws or their amendments; even more so the validity of Basic Law: The Judiciary; and far beyond that an amendment dealing specifically with the Court’s own bounds of authority.

It would be, therefore, a deep rooted and foundational infringement of the most basic principles of democracy – the principle of the people’s sovereignty, the principle of the rule of law, and the principle of separation of powers. All of the above, without the state of Israel having adopted a full constitution. With the country going through a severe social and political crisis, the damaging repercussions of violating these principles will be tenfold.