Harry Radzyner School of Law, Interdisciplinary Center (IDC) Herzliya
Editor’s note: This blog post continues the cooperation of the IACL-AIDC Blog with global leaders in comparative constitutional law. One of these new partnerships is with the journal VRUe / Law and Politics in Africa, Asia and Latin America. As part of this partnership, VRÜ editors select one article from each of the journal’s quarterly editions to be converted into a Blog post. This (freely available) article appeared in the latest issue of 04/2018 of VRÜ.
In 2017, the Israeli Supreme Court sitting as High Court of Justice (HCJ) has adopted two dramatic judicial decisions. Firstly, the HCJ invalidated a law based upon flaws in the legislative process for the first time in its history, and second, issued a nullification notice to a temporary Basic Law that changed – for the fifth time in a row – the annual budget rule to biennial one, by applying a doctrine of ‘misuse of constituent power.’
This was a significant judicial attempt to strengthen the Israeli structural constitution. And while these two cases naturally received criticisms from some politicians, I wish to explain that in these two dramatic cases, the Israeli HCJ acted as a guardian of the Knesset against encroachment by the executive branch. This exercise of judicial activism, not in a traditional counter-majoritarian role of the court as guardian of individual rights but as a guardian of the legislature in a conflict between the branches, resembles courts’ activities in the Global South geared to protecting fragile democratic processes.
The court as guardian of the legislative role of the Knesset
In the Israeli legal system, The Knesset is the parliament responsible for primary legislation. There is no elaborated regulation of the legislative process at the constitutional level and the Knesset has prescribed its own manual of rules of procedure.
Since 1995, the Israeli Supreme Court has invalidated eighteen statutory provisions for their unconstitutionality within the context of a judicial review, but had not – until the recent development – reasoned an invalidation with flaws in the legislative process, although formally asserting its power to do so if a procedural flaw goes “to the heart of the process”.
In one of the most important judgments handed on the topic, HCJ 4885/03 Isr. Poultry Farmers Ass’n v. Gov’t of Isr. 59(2) PD 14, 46-48 (2004), the HCJ criticized omnibus legislation enacted as part of the “Economic Arrangements Law” and developed a novel legal framework that would allow judicial review of statutes to be enacted via this legislative process, even in the absence of formal rules limiting the legislature’s power to use omnibus legislation. According to the HCJ, in addition to formal constitutional or internal parliamentary rules, the legislative process is also subject to unwritten fundamental democratic principles, among them the “principle of participation”, which guarantees the right of each Member of Knesset (‘MK’) to participate in the legislative process. The court emphasized that this right of participation entails at least a minimal ability to know the issue of legislation. The Court stated to only use its power to review the judicial process when MKs have been denied any practical possibility to actively participate in the political process leading up to the vote. This decision may have sent the message to the legislature that “anything goes”. In the recent HCJ 10042/16 Quantinsky v. Knesset (August 6, 2017) case, however, the court drew the line and, for the first time, invalidated a law due to a procedural flaw. The judgment dealt with a law imposing a tax on owners of three or more homes, legislated as part of the omnibus “Arrangements Law”. Justice Noam Sohlberg, who wrote the majority opinion, explained that the legislation process with the Finance Committee was rushed, the discussion took place close to midnight, with Knesset Members claiming they did not have time to properly examine the bill.
Justice Sohlberg held that it is not enough that the legislative process is designed so that Knesset members could “know what they vote for”; i.e. be able to read the bill, to hear about it and to superficially understand the law they are about to vote on. To prevent the danger of being used as a rubber-stamp for the initiators of the bill the Knesset’s legislative process should at least enable its members to formulate a substantive position.
Justice Menachem Mazuz disagrees with the majority opinion claiming the HCJ lacks the explicit constitutional authority to conduct judicial review of the procedure of legislation. Justice Mazuz’ and Justice Sohlbergs opinions furthermore differ on the consequences of a judicial procedural control for the separation of powers. While Justice Mazuz understands the majority judgment as a violation of the crucial principal, Justice Solberg – supported by the President of the Supreme Court Justice Miriam Naor – defends the insurance of minimal participation for the MKs as a protection of the legislative process and consequently of the separation of powers.
The court as guardian of the supervisory role of the Knesset
Apart from its main role as the legislature, the Knesset has a supervisory function towards the activities of the government, which includes the approval of the annual budget. Against the setting of the global economic crisis, the Ministry of Finance proposed a biennial budget as a one-time-temporary amendment to Basic Law for the years 2009-2010. After the amendment in 2009, the government amended the Basic Law again, in another temporary amendment, proposing the examination of whether the mechanism of a biennial budget should be permanent.
This amendment was challenged before the Supreme Court in HCJ 4908/10 Bar-on, MK v. Knesset 64(3) PD 275 (2011) but was rejected by a seven Judges panel. Writing the main opinion of the court, the then President of the Supreme Court at that time, Dorit Beinisch, held that the use of temporary ordinances to establish the biennial budget is problematic and there may be certain cases in which a temporary amendment to a basic law will be considered a misuse of the title “basic law”. However, at this time, the court would not intervene, because the government was justified in temporary experimenting with the unconventional biennial budget before deciding whether to adopt it as a permanent arrangement. President Beinisch urged the legislature to use temporary constitutional amendments sparingly and in extreme circumstances.
Ignoring President Beinischs advice and weighty opinions within the Ministry of Finance and the Knesset legal advisor’s office, biennial budgets were approved for 2013-2014 and 2015-2016.
In 2017, the government decided, for the fifth time, to approve a biennial budget through another Temporary Order, which was challenged before an expanded panel of seven-judges of the Supreme Court in the case of HCJ 8260/16 Academic Center of Law and Business v. Knesset (delivered on September 6, 2017).
Justice Elyakim Rubinstein, writing the majority opinion, held that approving a biennial budget denies the Knesset one of its most essential tools of government supervision. Justice Rubinstein also noted that the increasing use of temporary orders to amend basic laws is an example of the intolerable triviality with which the legislature and the executive authorities consider the constitutional documents of the state, leading to a shift in power towards the executive branch bypassing the democratic legislative process. Amending the basic law by temporary orders, time after time and under the current circumstances, constitutes a misuse of constituent power that justifies a judicial action. Instead of striking down the amendment, Justice Rubinstein declares a “nullification notice” – forbidding a future amendment of the basic law by a temporary order while allowing the current amendment.
The Dynamic Role of the Israeli Supreme Court
2017 thus marks a pivotal year in which through two major constitutional decisions, Israel has demonstrated transformative constitutionalism in which the court takes a central activist role in strengthening Israeli democracy by consolidating Israel’s institutional constitution. It is a new era of democratic-facilitating judicial review. In light of the expanding power of the executive vis-à-vis the legislature the HJC manifested its constitutional power through interfering with this development, indicating the beginning (or perhaps the climax) of transformative constitutionalism.
David Landau recently explained how much of the judicial effort in the contexts of fragile democracies of the Global South is oriented to improve the quality of the political-democratic systems, which are regarded as deficient. He calls this “dynamic” jurisprudence.[i] Indeed, emerging scholarship emphasizes the activist role of courts in “fragile” and transformative democracies. Heavily focusing on courts in countries with fragile democracies in the Global South, research suggests that to improve the quality of deficient political systems, courts deviate from standard models of judicial review in an aim to preserve and strengthen democratic processes and institutions within difficult political environments. New comparative constitutional literature is also emphasizing South-North dialogue, and suggesting that transformative constitutionalism models, previously attributed to the Global South countries, could help well-established democracies cope with current challenges such as populism, inequality, multiculturalism and democratic instability.[ii]
Regarding the improvement of political dysfunction the recent Israeli development strongly resembles the dynamic role of courts in the Global South. Compare, for example, the Israeli case of Quantinsky and judicial review of legislation based upon procedural flaws to the Colombian Constitutional Court, which has been striking down laws where the congress did not follow its own internal legislative procedures. Through such cases, the Colombian Constitutional Court was aiming to rationalize congress’ legislative behavior and attempting “to improve the quality of legislative deliberation by constitutionalizing some issues of legislative procedure”[iii], as the HJC did regarding the Knessets legislative process. Both Courts take a paternalistic role in enforcing the rights and duties of the legislative branch towards the executive branch.
Likewise, the biennial budget case, resembles the jurisprudence of many countries in the Global South.[iv]
The doctrine against abuse of constituent power emerged in India as part of the “basic structure” doctrine of implied limitations on constitutional amendment powers,[v] and has since been adapted by various other countries.[vi] Just like the Indian use of the “basic structure” doctrine the Israeli Supreme Court has developed the doctrine of ‘misuse of constituent power’, in the biennial budget case in order to protect a basic constitutional principle and the status of the basic laws themselves. As Justice Rubinstein stated in the biennial budget case: “when there is a majoritarian misuse of the constitutional text, the political need retreats before the constitutional core and sanctity, its legal and principle importance” (para. 30). And, like in India, this doctrine seems appropriate considering Israel’s extreme flexible rules of constitutional change.[vii]
The Israeli Constitutional order may furthermore resemble that of the Global South in one additional aspect: Israel is a young democracy without a long and established constitutional culture or tradition. Additionally, some sections of the Israeli public have no actual commitment to a liberal democracy and the mere idea of constitutionalism is contentious and under dispute. Accordingly, constitutional developments that occur in Israel can be understood or analyzed through the perspective of the global south and transformative constitutionalism.
Conclusion: On Transformative Constitutionalism and Constitutional Paternalism
With the legislative process and the biennial budget decisions, the Supreme Court places itself in the role of a protector of the democratic process, guardian of the Knesset, ensuring that it is not overrun by the government.
Prima facie, one might think that with these two cases the Supreme Court undermines or violates the principles of separation of powers by interfering in the legislative procedure and the bilateral institutional relationship between the legislature and the executive. However, this is a narrow vision of separation of powers according to which the judiciary must never intervene in the work of the other branches.
Whereas separation of powers means the existence of three equal powers: legislative, executive and judicial, each carries its own functions, separation of powers does not mean that each branch can act ultra vires without the other branches’ interference. Consequently, it can be argued that the Supreme Court’s supervision of the legislative process and the prohibition of a further by-pass of the annual budget rule, the court vindicated – not violated – separation of powers. It intervened in order to protect the legislative branches’ superiority and sovereignty.
The year 2017 should be marked as a turning point for Israeli constitutional order. The Supreme Court manifested transformative constitutionalism, by adopting a dynamic jurisprudence and acting as a guardian of the Knesset, in order to promote Israeli democracy. Of course, as Cohen-Eliya remarks, transformative constitutionalism is “a double-edged sword for courts… for every political action, there is a reaction. There is often public backlash against judicially transformative constitutionalism”.[viii] Thus, one has to understand that the role of the court in improving political failures does not come without a price. Landau correctly notes that there are “limits on what courts can accomplish”, and “relying on judicial action alone will…frustrate the constitutional project over time”, judicial role must act as a catalyst; “it must be aimed at ensuring that the political branches start to gain capacity, and to pay more attention to the constitutional claims that they have previously overlooked.”[ix] In the Israeli context, the Supreme Court has shifted the focus to the ongoing deterioration in the status of the Knesset as the legislature; it has spoken. Now, it is for the political branches to take their roles seriously.
Yaniv Roznai is a Senior Lecturer at the Harry Radzyner School of Law, Interdisciplinary Center (IDC) Herzliya.
Suggested Citation: Yaniv Roznai, ‘Constitutional Paternalism: The Israeli Supreme Court as Guardian of the Knesset’ IACL-AIDC Blog (17 May 2019) https://blog-iacl-aidc.org/2019-posts/2019/5/17/constitutional-paternalism-the-israeli-supreme-court-as-guardian-of-the-knesset
[i] David Landau, ‘A Dynamic Theory of Judicial Role’, Boston College Law Review 55 (2014), p. 1501, 1502-1503.
[ii] See, mainly, Michaela Hailbronner, ‘Transformative Constitutionalism: Not Only in the Global South’, American Journal of Comparative Law 65 (2017), p. 527; Michaela Hailbronner, ‘Overcoming Obstacles to North-South Dialogue: Transformative Constitutionalism and the Fight Against Poverty and Institutional Failure’, Verfassungs und Recht in Übersee 49 (2016), p. 253.
[iii] Landau (n 1), 1522
[iv] David Landau and David Bilchitz, ‘The evolution of the separation of powers in the global south and global north’, in: David Bilchitz and David Landau (eds.), The Evolution of the Separation of Powers: Between the Global North and the Global North, Cheltenham 2018, pp. 1, 6.
[v] See e.g. Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine, Oxford 2009.
[vi] Yaniv Roznai, ‘Unconstitutional Constitutional Amendments—The Migration and Success of a Constitutional Idea’, American Journal of Comparative Law 61 (2013), p. 657.
[vii] Suzie Navot and Yaniv Roznai, ‘From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel’, European Journal of Law Reform (forthcoming 2019).
[viii] Moshe Cohen-Eliya, ‘Israeli Case of a Transformative Constitutionalism’, in: Gideon Sapir, Daphna Barak-Erez, and Aharon Barak (eds.), Israeli Constitutional Law in the Making, Oxford 2013, pp.173, 188.
[ix] David Landau, ‘Institutional failure and intertemporal theories of judicial role in the global south’ , in: David Bilchitz and David Landau (eds.), The Evolution of the Separation of Powers: Between the Global North and the Global North, Cheltenham 2018, pp. 31, 45.