Understanding the Elements of Israel's Constitutional System

By Shamai Leibowitz, Esq.

 

Does Israel have a constitution? While this may seem a simple question, it has a surprisingly complex answer. The short answer is no; Israel does not have a formal constitution, nor does it have a general bill of rights. But the longer and more accurate answer is that Israeli courts have developed over six decades of jurisprudence a complex set of constitutional principles that continue to evolve to this day. This article will analyze the development of these constitutional principles from the early days of the state until today, and show that there has been tremendous progress in the constitutional discourse of the Israelli courts.

 

Though Israel's legislative body, the Knesset, has never drafted a "constitution" or a "bill of rights," the Israeli Supreme Court forged what may be termed a "judicial bill of rights." The Supreme Court stated in numerous decisions that the absence of a formal constitution does not mean that the Israeli judicial system lacks basic principles and fundamental rights. Recognizing there is a "constitutional void," the Supreme Court filled in the void by articulating a judicial bill of rights on a case-by-case basis. This judicial bill of rights, also called the "fundamental principles" of the State of Israel, has become the central element of Israel's constitutional system.  

 

The emergence of the Israeli "judicial bill of rights" is marked by two distinct eras. The first, from 1948 and until  1992, was characterized by the Court's limited interpretation of existing law in light of basic rights articulated in the Declaration of Independence. The second era, beginning with the enactment of the two Basic Laws concerning civil rights in 1992 and continuing to this day, has been characterized by the Court's willingness to conduct judicial review of parliamentary legislation and government policies.   

 

The First Era: No Judicial Review

 

The Israeli Declaration of Independence, issued on May 14, 1948, mentioned that the State of Israel will ensure several basic civil rights. The Declaration's "individual rights" clause provides:

 

 

THE STATE OF ISRAEL . . . will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.

 

In the early years of the state, the Supreme Court interpreted the Declaration, and particularly this section, as incorporating the founding principles of the state. Accordingly, the Supreme Court used this clause as a normative source in several decisions in which petitioners claimed an infringement of their rights and freedoms. The Supreme Court ruled that in cases where legislation may be interpreted in several ways, the laws should be interpreted in a way consistent with the principles expressed in the Declaration.

 

Utilizing this method, the Israeli Supreme Court, sitting as a High Court of Justice (HCJ), rendered several decisions striking down governmental decisions because they contravened fundamental rights. For example, HCJ 73/53 Kol Ha'am Company Ltd. v. Minister of Interior [1953] set an important precedent guaranteeing freedom of speech when the Supreme Court invalidated a government decision to shut down a newspaper because of a controversial oped criticizing government policy. In E.A. 2/84 Neiman v. Chairman of Central Elections Committee [1985] the Court struck down a Central Elections Committee decision to bar a party from participating in the elections, articulating the fundamental democratic right to vote and to be elected in a democracy. And in HCJ 1/88 Poraz v. The Mayor of Tel Aviv-Jaffa [1988] the Court struck down a Tel Aviv Municipal Council's decision not to appoint women to the electoral board for the Tel Aviv Municipal Rabbi, recognizing the right to equality as a fundamental principle of Israel that is inferred from Declaration of Independence. In these decisions, the Court also looked to accepted standards in other democratic countries, mainly England and the United States, to support its view that the above-mentioned rights should be protected by the courts through judicial interpretation of the Knesset's laws. 

 

But throughout this era the Court refused to accept the argument that a statutory provision of the Knesset, or even a provision of the British Mandatory legislation that remained in force, could be struck down because it was in conflict with a recognized individual right.  Thus, there was no judicial review of Knesset legislation.

 

 

The Second Era: A Constitutional Revolution

 

This approach changed with the enactment in 1992 of the two Basic Laws dealing with civil and human rights. By virtue of the Harrari Resolution of 1950, the Knesset agreed that the future Israeli constitution would contain separate chapters, each called a "Basic Law." In 1992, the Knesset passed two groundbreaking Basic Laws that guaranteed freedoms and rights --  Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation.

 

The normative supremacy of these Basic Laws was first discussed in a 1995 landmark case  - CA 6821/93 United Mizrahi Bank Ltd. et al. v. Migdal Cooperative Village, 49(4) PD 221. Israel’s Supreme Court - led by former Chief Justice Aharon Barak - ruled by a 8-1 majority that because the two Basic Laws held a higher normative status, the Israeli courts have the power to strike down parliamentary legislation that violated the Basic Laws.  Although in that particular instance the Court concluded that the legislation being challenged did not contravene the constitutional right to property articulated in Section 3 of Basic Law: Human Dignity and Liberty, it nonetheless declared that the Supreme Court has the power to judicially review parliamentary legislation passed after the enactment of the Basic Laws. This decision initiated the so-called "constitutional revolution" - a term used by judges and lawyers to describe the new constitutional discourse and signifying the courts' new approach whereby they analyze the "constitutionality" of laws and regulations, and determine  whether or not they comport with the Basic Laws. 

 

Since the United Mizrahi Bank case, the Court has adopted a more activist attitude which manifested itself in several landmark cases. In these decisions, the Court used the Basic Laws to strike down as unconstitutional government policies or particular sections of a Knesset law. Among these cases are the decision to deny authorities the power to use the law on administrative detention to hold enemy detainees as "bargaining chips" (Plonim v. Minister of Defense (1997)), and the March 2000 decision striking down a governmental policy preventing Arabs from purchasing houses in communal settlements established on state land (HCJ 6698/95 Kaadan v. Israel Lands Administration).

 

Although the Supreme Court has been asked dozens of times to conduct judicial review of the Knesset's laws and regulations, it has seldom declared a law or regulation unconstitutional. Indeed, the cases in which a provision of the law was struck down by the Supreme Court can be counted on one hand. Thus, the "constitutional revolution" has not had any serious impact on the validity of laws passed by the Knesset- even laws that curtail or infringe on fundamental human rights. In contrast, the Court has shown greater willingness to use the Basic Laws to interpret the Knesset's laws and regulations. Accordingly, the Supreme Court has ruled on numerous occasions that statutes must be read in light of the constitutional rights guaranteed in the two Basic Laws, tipping the balance in favor of individual rights and principles of equality.

 

In summary, since 1995 the Supreme Court has agreed to consider judicial review of Knesset legislation that violates the entrenched rights enumerated in the Basic Laws. However, the review has been extremely  cautious and measured. In the overwhleming majority of the cases, the Court has affirmed the parliamentary legislation and refused to intervene. This trend suggests it is very unlikely that the Supreme Court will strike down a Knesset law or regulation. Nonetheless, the effect of the "constitutional revolution" that began in 1995 has grown considerably as legislation that infringes on individual rights and freedoms has been challenged dozens of times in Israeli courts, causing the Knesset and the government to take into accout in the legislative process the possibility that the legislation will be struck down by the courts.