¹ Jefferson, in a letter to Madison of March 15, 1789, and The Federalist No. 51; Somerveil, L.J. in (1951) 67 L.Q.R. 312; M. Beloff, The (London) Times of April 16, 1968. In applying the principle of separation of powers, one should not forget Madison's remark “that the whole power of the department should not be exercised by the same persons who possess the whole power of another department” (The Federalist No. 47). Extended judicial control of legislative action, it may be observed, is compatible with the basic principle of the separation of powers.

² Bergman v. Minister of Finance (1969) (I) 23 P.D. 693. (English translation in (1969) 4 Is.L.R. 559).

³ P. Elman, C. Klein and B. Akzin in (1969) 4 Is.L.R. 565, 569, 570.

⁴ Elman, Ibid., 565.

⁵ Latham, “The Law and the Commonwealth” (1937) 1 Survey of British Commonwealth Affairs, 523; Heuston, Essays in Constitutional Law (1961), 7; Gray in (1964) M.L.R. 707.

⁶ Sir Owen Dixon in (1950) 66 L.Q.R. 590, 604; see below, at note 12.

⁷ Rana Singh v. Bribery Commissioner [1964] 2 All E.R. 788; see also Akar v. Attorney General, Sierra Leone [1969] 3 W.L.R. 972; and Attorney General New South Wales v. Trethowen [1932] A.C. 256 (P.C.).

⁸ A. Witkon, “Justiciability” (1966) 1 Is.L.R. 40.

⁹ Its decision was facilitated by (what most Israelis seem to consider) a technical slip: the Bill which allocated the substantial sum of IL 14.8 million to the parties represented in the sitting Knesset, received, at its first Reading, 24 votes (with two members voting against the proposal). The special majority of 61—required by the Basic Law: The Knesset—did not attend and vote on the first (or any later) reading; apparently, no one thought that the special majority would be required. However, there was more than a mere technical slip on the part of party whips. Members of Parliament were not informed that the principle of equality was involved. Had party whips informed members that the Bill as drafted required the presence of a special majority, they would have had to make the reason plain— they could not have glossed over the fact that the Bill prejudiced the principle of equality. Even with efficient modern party machines, the most faithful member would have hesitated to vote a statute which purported to abolish, in so many words, equality before the law (see Klein, op. cit., 570).

¹⁰ Where Parliament has not validly passed a Bill, it is a nullity, and the Royal Assent (or, in Israel, the President's signature) has no significance; the latter cannot make a law out of the talks of certain individuals. A.G. v. Trethowen [1932] A.C. 526, 541.

¹¹ Harris v. Minister of the Interior (1952) 2 SA 4 28, (1952) 1 T.L.R. 1245.

¹² The Rana Singh case, note 7 supra. See also Hunter v. Erickson 393 U.S. 385, 392: sovereignty is itself subject to constitutional limitations.

¹³ See Hood-Phillips, , Constitutional and Administrative Law (3rd ed.) 71Google Scholar.

¹⁴ Basic Law: The Knesset—it will be recalled—requires the special majority for changes “both explicitly and implicitly” (sec. 46). In order to repeal sec. 4, or to amend any of its material parts, the Knesset would have to pass a new law—and to pass it “in the form and manner prescribed” by sec. 4. See Attorney General, New South Wales v. Trethowen [1932] A.C. 526, 541; and also C. Klein, op. cit., 574.

¹⁵ The Communist Party v. Commonwealth of Australia (1950/51) 81 C.L.R. 1.

¹⁶ The Privy Council had before it not a constitutional problem but a criminal appeal: The accused claimed that the tribunal which had sentenced him had no power to do so because the law establishing the tribunal was invalid. The Privy Council upheld this “collateral” attack upon a Bill which had received the Royal Assent. This point may deserve to be noted, in the face of suggestions to limit to members of the Knesset the right to attack the validity of laws passed by the Knesset. The Minister of Justice certainly will remember that “the citizen should not be deprived of basic rights just because of some imagined administrative benefit”; Harman v. Forssenios, 380 U.S. 543. The courts may not have power to deny the validity of a statute duly passed by the Knesset: Bassul v. Minister of the Interior (1965) 19 P.D. 377; see Witkon, op. cit., 54. But the question before the Supreme Court was whether a statute had been duly passed by the Knesset. Procedural restrictions concerning the manner and form of legislation, we may repeat, are not incompatible with sovereignty; Gray, op. cit., 708. In passing, the writer may, however, be allowed to cast some doubt on the general proposition given above. If Parliament should decide to pass a statute incompatible with basic human rights, its vote will be invalid. The “statutes” enacted, during National Socialist rule with the consent of the entire (duly elected) German Parliament, which outlawed the Jews, were denied validity by some courts (notably in Switzerland and the United States) even during the period of Germany's greatest might; they refused to recognise robbery in the guise of statute. The Allied Powers, and German post-war practice, adopted this view: the outward form of a statute cannot give legal force to injustice. See the dictum of Sussmann J. in Fredor v. Election Committee (1965) (III) 19 P.D. 365. 389: certain principles are so “fundamental that they are binding even upon the legislator”; and also the German Bundesverfassungsgericht, BVerfGE 1, 232: the principle of equality is so much part of the constitutional order that it applies even where the written constitution is silent (or, one may add, where there is no written constitution).

¹⁷ Perez v. Local Council of Kfar Shmaryahu (1962) 16 P.D. 2101; and in particular the views of Cohn J., regarding non-discrimination against the non-conformist minority as a basic principle.

¹⁸ The legal historian will refer to Holt C.J.'s statement in Ashby v. White (1707) 92 E.R. 126, 136.

¹⁸ In the submission to the Supreme Court, the decision of the German Bundesverfassungsgericht, Sozialdemokratische Partei und Land Hessen w. Bundesrepublik, BVerfGE 20, 1 was discussed at length. The Bundesverfassungsgericht's view reflected the trend of modern constitutional practice: see the United States practice, infra, notes 20, 22–25.

²⁰ People ex rel. Beckerman v. Doe 31 N.Y.S. 2d 217.

²¹ Fredor's case, supra, note 14, at 365.

²² Harman v. Forssenius 380 U.S. 528; Corn v. Cohen 49 N.Y.S. 2d 914.

²³ Lane v. Johnson 18 N.Y.S. 2d 93.

²⁴ State ex rel. Beer v. Hummel 80 N.E. 2d 899.

²⁵ Fisher v. Taylor 196 S.W. 2d 217.

²⁶ See the Supreme Court's remarks in the instant case, at 699—(1969) 4 Is.L.R. 559, 563.

²⁷ Several members of the Knesset specifically desired such restriction upon the voter's choice: “We are not interested in the appearance of small groups which might draw only small numbers of voters” (B. Unna, Divrei HaKnesset, 6.1.69, p. 998) Only “the real forces represented in parliament will” be taken into account, and not “what might happen” in future (Dr. Y. Bader, ibid., 19.1.69, p. 1355). Some parties seem to claim a vested right to their influence in Parliament, whatever the voter's will.

²⁸ U.S. v. International Union 352 U.S. 567, 575.

²⁹ Local Authorities (Election) (Amendment No. 2) Law, 1969.

³⁰ Preisler v. Calcatela 243 S.W. 2d, 62; 16 (a) S.C.J. 566.

³¹ Moore v. Ogilvie 394 U.S. 814, 818; see also U.S. v. Classic 313 U.S. 299, 314; Smith v. Alwright 321 U.S. 663.

³² 25 Am. Jur. 2d 117, 803; State ex rel. McGrath v. Whelps 128 N.W. 1041, and see also Lane v. Wilson 307 U.S. 269, 276: “onerous procedural requirements which effectively handicap the exercise of the franchise by the (coloured) voter”. Cf. Harman v. Forssenius 380 U.S. 528, 541: to demonstrate invalidity, it must only be shown that (the statute) “imposes a material requirement solely upon those who refuse to surrender their constitutional right to vote.”

³³ Williams v. Rhodes 21 L. 2d, 24, 31.

³⁴ See Ariav v. Minister of Education (1951) 5 P.D. 523, 530 and Witkon, op. cit., 49.

³⁵ Smith v. Alwright 321 U.S. 663.

³⁶ Terry v. Adams 345 U.S. 463 (concerning party primaries).

³⁷ Divrei HaKnesset 20.11.1968, p. 392 (statement by the Minister of Justice).

³⁸ Gray v. Sanders, 372 U.S. 368, 372.

³⁹ Opinion of the Justices, 197 N.E. 2d, 691.

⁴⁰ Entscheidungen des Bundesverfassungsgerichts 20, 113.

⁴¹ Art. 21 of the Grundgesetz (Federal Constitution).

⁴² Gesetz über die politischen Parteien, 24.7.1967 (BGBI 1967 I 773).

⁴³ In any case, whether budgetary allocations can be maintained at the level voted in 1969, may remain to be seen. The German statute now provides an allocation of DM 2.50 for each vote cast. In Israel, the 1969 statute allocates roughly IL. 10.