The Power of Judicial Review
Until
1995, it was not clear that the basic
laws enjoyed
any constitutional supremacy. While it was widely
accepted that the Basic Laws dealt with uniquely
constitutional issues, according to the Israeli Supreme
Court’s interpretation , these laws had no greater status
than ordinary laws, and thus new laws were held to
supercede old ones, even if a new law – passed,
for instance, by a 3-2 majority in plenum – contradicted
a Basic Law of the State. The only laws which could
be used to strike down legislation were those parts
of basic laws with “entrenchment clauses” establishing
their supremacy. Most famous was Article 4 of the Basic
Law: The Knesset, which stated,
The Knesset shall be elected by general, national,
direct, equal, secret, and proportional elections,
in accordance with the Knesset Elections Law; this
section shall not be altered save by a majority of
the members of the Knesset.
When article 4 was written, it was almost the only
basis for the review of legislation.
This
is no longer true. In 1992, the Knesset adopted two new Basic Laws concerning human
rights (Freedom
of Occupation, and Human
Dignity and Freedom). The Freedom of Occupation
law explicitly included a provision preventing
other laws from infringing on it; but a
proposal to also entrench the more important
Basic Law: Human Dignity and Liberty failed
by one vote. Perhaps more importantly, both laws
had a limitation clause stating that,
There
shall be no violation of rights under this
Basic Law except by a law befitting the values
of the State of Israel, enacted
for a proper purpose, and to an extent no greater
than is required.
A minimalist interpretation would simply have added
the two new Basic Laws to the short list of entrenched
laws. Chief Justice Aharon
Barak, however, championed
a more activist interpretation of the new laws, declaring
in Bank Mizrahi v. The Minister of Finance (1995)
that their enactment – and particularly the new
Limitation Clause concept – signified
the elevation of all Basic Laws to supremacy
over ordinary legislation.
This
historic decision – the equivalent of the
United States’s famous Marbury v. Madison – put
Basic laws on the top and established the practice
of Judicial review of statutes. What this meant was
that the Supreme Court declared the eleven basic laws
drafted over some 45 years a constitution, and granted
itself the power to strike down new legislation which
contradicted any basic law. With
this “constitutional
revolution,” the court created a
constitution, unbeknownst to the vast majority
of Israelis and the world.
This
revolution has had its positive and negative
ramifications. Israel’s system of
law and basic principles are now stabilized
by a constitution, but the text is incomplete
and unknown to the public, failing in
the educational, civic, and political functions
a constitution should and would fill if
it grew out of an inclusive process of
public deliberation. The Bill of rights
in the basic laws is unfinished, and
the issue of Israel as the state of the
Jewish people is almost ignored. Finally,
the court’s interpretation
and application of some of the Basic
Laws has alienated Members of Knesset
(particularly the Orthodox) who originally
supported the Basic Laws themselves in
plenum. Many members of the Constitution,
Law, and Justice Committee share these
criticisms and the Constitution by Broad
Consensus Project is aimed in part at
remedying the situation.
Sources: Constitution
for Israel Project |