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A New Era in Israel's Constitutional Law
Published online by Cambridge University Press: 12 February 2016
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In the last few weeks it has been announced that the Ministry of Justice has prepared drafts for two further Basic Laws on “Legislation” and on “The Courts.” Furthermore, Mr. Shapira, the Minister of Justice has repeatedly pointed out that the moment has come for “completing the Constitution”. A third Basic Law (amounting to a Bill of Rights) is being prepared by a special sub-committee of the Knesset's Constitutional, Legislative and Judicial Committee. Since we already have four Basic Laws, the prospect of “completing the Constitution” may become a realistic one. It would appear that after some twenty years of discussions on the need for a written constitution, after much dispute over the constituent power of the Knesset, the decision has finally been taken to overcome all obstacles and to provide Israel with a rigid written constitution.
It is of course a political decision and has in fact been made on a political level. Although the task of the lawyer is only to assess its constitutional significance, the responsibility of the task is made more important because the political and legal implications are so intertwined. Decisions in the constitutional sphere are political decisions which have to be “translated” into legal language. In this case the lawyer must also determine the accuracy of the “translation” and if he finds it defective, he must point out the defects and the consequences that may arise therefrom.
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References
1 Ha'aretz, Jan. 4, 1971.
2 The Basic Law: The Knesset (1958) 12 L.S.I. 85; the Basic Law: Israel Lands (1960) 14 L.S.I. 48; the Basic Law: The President of the State (1964) 18 L.S.I. 177; the Basic Law. The Government (1968) 22 L.S.I. 257.
3 See Likhovski, , “The Courts and the Legislative Supremacy of the Knesset” (1968) 3 Is.L.R. 345Google Scholar, and “Can the Knesset adopt a Constitution which will be the Supreme Law of the Land?” (1969) 4 Is.L.R. 61; Rubinstein, A., “Israel's Piece meal Constitution” Studies in Israel's Legislative Problems, XVIGoogle Scholar Scripta Hiero-solymitana (Jerusalem, Magnes Press, 1966) 201; Rackman, E.: Israel's Emerging Constitution (New York, 1965)Google Scholar; Albert, Jeffrey M., “Constitutional Adjudication without a Constitution: the Case of Israel” 82 H.L.R. 1245CrossRefGoogle Scholar; in Hebrew see: Sternberg, M. (1958) 16 Molad 284Google Scholar; Akzin, B., “Basic Laws and Rigid Laws in Israel” (1961) 17 HaPraklit 230Google Scholar; Rubinstein, A., “Entrenched Provisions in Basic Law: The Knesset” (1965) 21 HaPraklit 421Google Scholar; Rubinstein, , The Constitutional Law of the State of Israel (1969) 167ffGoogle Scholar; Horenstein, N., “Rigid Provisions in Basic Law” (1969) 25 HaPraklit 648Google Scholar; Klein, C., “The Constituent Power in Israel” (1970) 2 Mishpatim 51Google Scholar; Landau, Moshe, “The Constitution as a Supreme Law of the State” (1971) 27 HaPraklit 30.Google Scholar
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5 Nimmer, Melville B., “The Uses of Judicial Review in Israel's Quest for a Constitution” (1970) 70 Colum. L.R. 1217.CrossRefGoogle Scholar
6 (1969) 4 Is.L.R. 576.
7 Sec the Declaration of the Establishment of the State “…We declare that, with effect from the moment of the termination of the Mandate, being tonight, the eve of Shabbat, the 6th of Iyar 5708 (15th May 1948) until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October, 1948, the People's Council shall act as a Provisional Council of State …”. A moral obligation also arose from the famous General Assembly's Resolution on the partition of Palestine 181(2) of 29.11.47: see General Assembly. Official Records of the Second Session p. 131–150. In (I) (B) (9): “The provisional Council of Government of each State shall, not later than two months after the withdrawal of the armed forces of the Mandatory Power, hold elections to the Constituent Assembly which shall be conducted on democratic lines”.
8 The simultaneity resulted from the text of the Declaration of Independence, see the preceding note. It was cancelled by the Constituent Assembly (Transition) Ordinance (1949) 2 L.S.I. 81. This Ordinance was formulated on January 13, 1949, i.e., only a very few days before the Elections, to be held on January 25. Section I of the Ordinance provided: “The Provisional Council of State shall continue in office until the convening of the Constituent Assembly; upon the convening of the Constituent Assembly the Provisional Council of the State shall dissolve and shall cease to exist”. Section 3 provided: “the Constituent Assembly shall, so long as it does not itself otherwise decide, have all the powers vested by law in the Provisional Council of State”. Section 7(a) of the Law and Administration Ordinance provided: “The Provisional Council of the State is the legislative authority” (1948) 1 L.S.I. 7.
9 See (1949) 1 Divrei HaKnesset 28: At the beginning of the discussion on the Transition Law, I. Idelson, M.K., Chairman of the Committee of the Constitution “…This is still not the Constitution … it is only a transitional constitution …” But several months after the adoption of the Transition Law, during the great debate on the adoption of a constitution, the idea was defended that by adopting the Transition Law the Assembly had already fulfilled its duty. See the pamphlet “The State's Constitution” (Jerusalem, 1952, in Hebrew) which contains the whole debate on the constitutional question at the First Knesset, and see in particular the statement of Z. Warhaftig, M.K. (p. 16), and the Prime Minister Ben Gurion's intervention at the meeting of February 20, 1950 (p. 62–3). Of course, this was only the majority opinion (mainly the religious parties and Mapai).
10 Ibid. Through the Prime Minister's answer to the objection of M. Beigin, M.K., it is clear that the decision not to adopt a constitution was taken in the very last weeks before the elections to the Constituent Assembly. On the non-substantial character of the change of name see: Rubinstein, “Israel's Piecemeal Constitution”, op. cit., at 203.
11 Rubinstein, op. cit., at 203. The “operative part of the Declaration” is that part of it which contains positive (operative) norms: “… (We) hereby declare the establishment of a Jewish State in Eretz Israel, to be known as the State of Israel. We declare that, with effect from the termination of the Mandate, being tonight, the eve of Shabbat, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People's Council shall act as a Provisional Council of the State, and its executive organ, the People's Administration shall be the Provisional Government of the Jewish State, to be called Israel”. This part, as distinguished from the two others (the first, that constitutes the historical-political, and the third, which contains some principles to be observed by the new State such as non-discrimination, freedom of religion, conscience, language) is the most normative one. After some discussion as to the enforceability of the third part, it has been clearly laid down that the principles are not “supra-legislative”. See Ziu v. Gubernik 1 S. J. 68 (at 72): “It (the Declaration) gives expression to the vision of the people and its faith, but it contains no element of constitutional law which determines the validity of any ordinances and laws”. On the whole problem of the Declaration and its legal effect see Akzin, B., “The Declaration of the Establishment of the State” in Jubilee Book to P. Rosen (1962) 52–65 (in Hebrew)Google Scholar; and also Rubinstein, , The Constitutional Law of the State of Israel (1969) 7–19.Google Scholar
12 The Resolution was adopted on June 13, 1950 (by 51 votes to 39 and 7 abstentions). It ended the basic debate on the adoption of a formal constitution which was held in the First Knesset in February and June 1950, and reads: “The First Knesset charges the Constitutional, Legislative and Judicial Committee with the duty to prepare a draft Constitution for the State. The Constitution shall be composed of separate chapters, in such manner that each shall in itself constitute a basic law. Each chapter shall be submitted to the Knesset as the Committee completes its work, and all the chapters together shall form the State Constitution”.
13 (1951) 5 L.S.I. 94.
14 A. Rubinstein relies on sec. 9 of the Second Knesset (Transition) Law: “Where in any law reference is made to the Constitutent Assembly or the First Knesset such reference shall from the day of the convening of the Second Knesset, unless the context otherwise requires, be read as a reference to the Second Knesset”. “Israel's Piecemeal Constitution” (204–5).
15 Ibid., at 206.
16 It may be added, as stressed by Rubinstein (op. cit., eod. loc.) that although the Harari Resolution could constitute a binding document for the First Knesset which adopted it, this was not the case for subsequent Knessets. There is no continuity between any Knesset and its successors, as appears a contrario from the debate on the Bills Law, 1964 Sefer HaHukim 2. See Schmalz, Ora, “On the Law of Continuity of Debate on Draft Laws, 1964” (1967) 2 Is. L.R. 566Google Scholar and Rubinstein, “Israel's Piecemeal Constitution” 205.
17 Yet the debate about the first Basic Law should be noted. It began under the Second Knesset (November, 1953) and continued during the Third Knesset, which finally adopted it on February 12, 1958. For the main discussion on October 8, 1956, see 21 Diurei HaKnesset 4.
18 Thus the President of the Jerusalem District Court, Baker, Henry E., in his book The Legal System of Israel (Jerusalem, 2nd ed., 1968)Google Scholar considers the following laws as substantially “constitutional”: the Flag and Emblem Law, 1949, the State Seal Law, 1949, the Territorial Waters Law, 1956, the Law of Return, 1950, the State Controller Law, 1958 (consolidated version—its first version dates from 1949), the State Property Law, 1951. To this list may be added: the Immunity, Rights and Duties of Members of the Knesset Law, 1951, the Courts Law, 1957, the Judges Law, 1953. On the different interpretations of the constitutional laws, see Akzin, “Basic Laws and Rigid Laws in Israel” op. cit., at 234.
19 Government in Israel (1953).
20 Ibid., (2nd ed., 1956).
21 See for instance the argument put forward by Zadok, Haim, On Law and Government in Israel (1st ed., 1954, in Hebrew).Google Scholar
22 (1951) 9 Divrei HaKnesset 1845, 1869, 1922. See also Rosenthal, Y., “Is the Sovereignty of the Knesset Limited?” Ha'aretz, May 29, 1951.Google Scholar
23 See sec. 5 of this law quoted above, p. 380.
24 Op. cit., 1239.
25 Cf. the transfer of constitutional power to Pétain by the Constitutional Law of the 10th of July, 1940, when France was already occupied by the Germans. For discussion of the legitimacy of this law with regard to the accepted theories, see Laferrière, J., Manuel de droit constitutionel (Paris, 2nd ed., 1947) 831–35Google Scholar; and Héraud, Guy. L'ordre juridique et le pouvoir originaire (Paris, 1946).Google Scholar
26 Laferrière, op. cit.
27 When the nation elected a new Knesset it was presumed to be aware of the constituent power inherent in it.
28 See Akzin, , Project of a Constitution for the State of Israel (Tel Aviv, Bnei Brith, 1965).Google Scholar
29 Op. cit., p. 1240.
30 Kelsen, H., General Theory of Law and State (1949) 156.Google Scholar
31 Ibid.
32 Ibid., 154.
33 Kelsen uses the word “efficacy”, loc. cit., 29–44. But it must be stressed that the efficacy of a norm does not necessarily make it valid. “This efficacy is a condition of validity; a condition not the reason of validity. A noim is not valid because it is efficacious, it is valid if the order to which it belongs is on the whole efficacious” (p. 42). See discussion of this theory and its application to the case of Rhodesia after U.D.I, in Raz, J., The Concept of a Legal System (1970) 205.Google Scholar
34 This discussion bears a strange resemblance to the discussion in France after the Referendum of October 28, 1962. This referendum was held to amend sec. 6 of the Constitution of the Fifth Republic. In the original version the President was elected by an electoral college of approximately 100,000 electors. De Gaulle wanted the election of the President to be by the direct vote of the nation. According to sec. 89 of the French Constitution, an amendment to that Constitution may be submitted to the people with the approval of both Houses or if there is a 3/5 majority in the Congress of Parliament. Since de Gaulle knew he would never gain the approval of both Houses he decided to operate under sec. 11 of the Constitution which permitted the President to submit directly to the people any question concerning an “organisation des pouvoirs publics”. With one exception, all the jurists consulted considered that this was a special procedure, not to be used for amending the Constitution. See Berlia, G., “Le problème de Ia constitutionnalité du referendum du 28 octobre, 1962” (1962) Revue du droit public 936Google Scholar; Lampué, P., “Le mode d'élection du président de la République et la procédure de l'article 11” (1962) Revue du droit public 931Google Scholar; Duverger, M., Institutions politiques et droit constitutionnel (11th ed., 1970) 700ff.Google Scholar The bill was adopted and since 1962 the President has twice been elected in this way. This is a good example of efficacy. Some jurists consider that the positive answer to the referendum made the procedure legitimate, ex post facto.
35 See our remarks on Horenstein's theory, infra p. 390.
36 Amendment n. 3 (1959) 27 Divrei HaKnesset 2961. The opinion of Zadok, M.K. against the entrenched clauses was also presented on behalf of the Minister of Justice.
37 “Can the Knesset adopt a Constitution which will be the Supreme Law of the Land?” (1969) 4 Is. L. R. 61. See the repudiation of this theory by Akzin, eod. loc., at 170. See also Likhovski, , “The Courts and the Legislative Supremacy of the Knesset” (1968) 3 Is. L.R. 345.Google Scholar The submitted doctrine is also presented more pragmatically by Sheftler, M., “Thoughts on Constitutional Problems” (1971) 26 HaPraklit 6.Google Scholar
38 The position of the British Parliament is not questioned; see Vauxhall Estates v. Liverpool Corporation (1932) I K.B. 733; Ellen Street Estate Ltd. v. Minister of Health (1934) I K.B. 590. See also: Philipps, Hood, Constitutional and Administrative Law (4th ed.) 61Google Scholar and the South African Cape Coloured voters cases at 830 ff. The first decision of the Privy Council was: Bribery Commissioner v. Ranasinghe (1964) 2 W.L.R. 1301. With reference to this decision see Rubinstein, A., “Entrenched provisions in Basic Law: the Knesset” (1965) 21 HaPraklit 421.Google Scholar Later decisions were: Akkar v. Attorney General of Sierra Leone (1969) 3 W.L.R. 970; Collymore v. Attorney General of Trinidad and Tobago (1970) 2 W.L.R. 233; see the comment of Graham Zellick (1970) Public Law 105. In the Collymore case, the Council examined whether the Industrial Stabilization Act, 1965 (Trinidad and Tobago) was ultra vires the Constitution. Since the question was that of the freedom of striking, the Privy Council had, like the Supreme Court of the U.S.A., to decide whether there is a substantial contradiction between the Act and the principle of freedom of association. See also Trinidade, F.A., “Constitutional Protection from Racial Discrimination in Sierra-Leone” (1970) M.L.R. 570.Google Scholar
39 “Israel's Piecemeal Constitution”, op. cit., at 206.
40 Ibid., 208.
41 Ibid. It should be remarked that this article was published in 1966, i.e., before the adoption of the fourth Basic Law: The Government. In The Constitutional Law of the State of Israel (1969) Prof. Rubinstein makes mention at 171 of that Basic Law (adopted in August, 1968). He also mentions the fact that though this Basic Law was also initiated by the Government (and not by the Constitutional, Legislative and Judicial Committee) it contains entrenched clauses, so that it is not possible to deny its constitutional nature and to consider seriously the formal argument that a Basic Law is a constitutional law only if it was initiated by the Constitutional, Legislative and Judicial Committee.
42 The Basic Law: State Lands is brief, it contains the following 3 short sections: 1) The ownership of Israel Lands, that is lands in Israel of the State, the Development Authority or the Keren Kayemet Le-Israel, shall not be transferred, whether by sale or any other way. 2) Section 1 shall not apply to kinds of land and kinds of transactions specified for this purpose by law. 3) In this Law “land” means land, houses, buildings and everything permanently attached to the ground.
43 The principle of the prohibition of transfer had been already laid down in the State's Properties Law, 1951 (sec. 5). The Knesset simultaneously adopted three laws: the Basic Law: State Lands, the Israel Lands Law and the Israel Lands Administration Law. The specific nature of the Basic Law seems quite clear. Sec. 2 of the Basic Law, laying down the conditions under which the provisions of sec. 1 do not apply, seems to indicate quite clearly the superiority of this law
44 Only sections 4, 44, and 45 are entrenched. In his article (quoted supra) “Basic Laws and Rigid Laws in Israel”, Prof. Akzin (at p. 237) showed that there were real contradictions between some laws which were adopted by the Knesset and clauses of Basic Laws. The Supreme Court would probably not agree to review a law which contradicts a non-entrenched Basic Law. The same will apply to the Basic Law: Legislation and Basic Law: The Courts, if they are accepted. See infra our critical approach.
45 (1969) 25 HaPraklit 648.
46 On the distinction and the importance of these two categories, see our article “The Constituent Power in Israel”, op. cit., infra n. 54.
47 See Report of Nir-Rafalkes, M.K., in the second reading on the bill: (1958) 23 (2) Divrei HaKnesset 868. In the original draft the provision read “the Knesset is the Legislative House of the State”. A special amendment was introduced and finally adopted so as to cover “all the functions” of the Knesset.
48 Dr. Horenstein does not hesitate to develop all the consequences of his theory. He considers that while the Knesset could bind itself by introducing entrenched clauses in the Basic Law: The Knesset, entrenched clauses in the subsequent Basic Law: The Government have no such effect. Even if we reject Horenstein's theory, it nevertheless points to an important question which deserves discussion, for constituent power cannot be made transmissablc for ever and ever. The Knesset is a constituent body only until the final adoption of a constitution. The problem of determining the exact moment of final adoption is a delicate one. See supra the discussion on the “transfer” of the constituent power.
49 The possibility of a constitution being composed of different parts, like “Basic Laws” or “constitutional laws”, is not a theoretical one. The Third Republic (1875–1940) in France, was based upon a number of “lois constitutionnelles” which were adopted at different times, i.e., two enactments in 1875, a revision in 1884, and another in 1926.
50 (1958) 16 Afolad 284.
51 This adverse point of view considers that the qualification “Basic” merely implies that the law deals with basic matters.
52 Sternberg stresses that the Courts will finally have to decide on the question of the superiority of Basic Laws.
53 (1961) 17 HaPraklit 230.
54 (1970) 2 Mishpatim 51.
55 “The Knesset shall be elected by general, country-wide, direct, equal, secret and proportional elections, in accordance with the Knesset Elections Law; this section shall not be varied save by a majority of the members of the Knesset”. See also sec. 46: “The majority required by this Law for changing sections 4, 44 or 45 shall be required for decisions of the Knesset plenary at every stage of law-making, except a debate on a motion for the Knesset agenda. In this section, “change” means both an express and an implied change”.
56 The financing system attributed only public aid to parties which were already represented in the outgoing Knesset. New lists were consequently at a disadvantage.
57 Similarly the Court does not decide on the question of locus stanai.
58 Melville B. Nimmer, (1970) 70 Colum.L.R. 1217.
59 In our comment (4 Is.L.R. 569 at 574) wc pointed out that in our view it is a grave mistake to consider the fact that a special majority was obtained to be sufficient. When an amendment to a Basic Law is under consideration the special majority, although politically the most important, is only one aspect of the problem. An amendment to a Basic Law is only valid if, in addition to being adopted by such special majority, the Knesset intended to modify the Basic Law. No other theory is acceptable if the entrenched clauses of Basic Laws are considered really superior to other legislation. Consequently the fact that the Financing Law (in re Bergman) was accepted by a special majority does not make it superior legislation. Despite the ambiguity of sec. 46 of the Basic Law: The Knesset (see supra n. 55), “implied” amendments cannot be considered valid. As soon as the Knesset becomes conscious of the “implied” change, the change loses its “implied” nature. But the requirement for a formal change is not affected by this.
60 In (1971) 27 HaPraklit 30 Landau J. stresses the fact that the Bergman case pointed to the need to find a solution to the fundamental questions that have remained unanswered for twenty years.
61 The drafts were published in (1971) 27 HaPraklit 136.
62 Sec Ma'ariv, March 1, 2, and 3, 1971, articles by G. Stresman; see Ha'aretz, Feb. 2, 1971; also the interview with Attorney General M. Shamgar in Ha'aretz, Feb. 19, 1971.
63 The original constituent authority is that which adopts a constitution when no other constitution exists, i.e., after a revolution or on the establishment of a new state. It is sovereign because no other power exists. The derived constituent power is that which is derived from the constitution and invested with the authority to amend the Constitution. Its sovereignty is limited by the clauses which created it, e.g., the need for a special majority. This point of view is also expressed by Rubinstein, A., The Constitutional Law of the State of Israel (1969) 172Google Scholar, and “Israel's Piecemeal Constitution” 209.
64 In his interview in Ha'aretz (Feb. 19, 1971) Attorney General Shamgar attempts to justify the solution but he is not convincing. He suggests that Israel prefers a more flexible system, i.e., changes to be possible with a required majority, to a system requiring exclusively formal changes. It is our submission that the difference lies only in the legal technique. Maybe the origin of this curious theory lies in the Bergman case, see supra n. 59.
65 See for instance Pnina Filzer v. Minister of Finance (1970) (1) 24 P.D. 113 at 119–20, where Landau J. stresses the rarity of implied changes and the reluctance to admit them.
66 Wherever there is doubt about the final outcome of legislation, the Knesset will always attempt to obtain the special majority.
67 Section 26 of the draft “Legislation” provides:
Commencement and preservation of validity 26. The provisions of Chapter B shall commence on a date to be determined by a law to be passed concerning such matter, and no objection shall be raised as to the validity of any law passed before their commencement.