Israel Supreme Court: 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’ 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 have alienated Members of the Knesset (particularly the Orthodox) who originally supported the Basic Laws themselves in the 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.
Constitution for Israel, The Knesset.