A Call for Codifying Institutional and Procedural Norms in the Constitutional Process in Israel

Gonen Ilan

Bar-Ilan University

The ruling in the Movement for Quality Government case, which for the first time declared the annulment of a Basic Law, highlighted the importance of enshrining procedural constitutional norms within the "rules of the game" through the enactment of a Basic Law: Legislation. In short, Israel does not have a comprehensive, unified written constitution, and since its establishment, thirteen Basic Laws have been enacted. These laws were granted constitutional status following the United Mizrahi Bank decision, in which the Supreme Court recognized their constitutional significance. However, the Knesset has yet to create a distinct legislative process for enacting and amending Basic Laws, leaving the procedure identical to that of ordinary legislation, blurring the distinction between regular and constitutional lawmaking. Against this background, this post is divided into two parts: the first part argues, from a theoretical standpoint, that in a constitutional reality where the rules of the game are not established, foundational legislation should be scrutinized under a more stringent test than the one set in the Quantinsky case. This argument is based on a combination of constitutional theory and legisprudence. In the second part, I suggest, on a normative and practical level, that in future regulation of the "rules of the game" through the enactment of a Basic Law: Legislation, rigid institutional-procedural norms should be enshrined that prioritize the procedural aspects of constitutional democracy in Israel, with a specific focus on temporal limitations.

Introduction

The petitioners in the Movement for Quality Government case argued that there was a "substantial flaw in the principle of participation" during the legislative process of Amendment No. 3 to the Basic Law: The Judiciary. Their claims were based on two main pillars: first, the duration of the discussions was short, lasting only three weeks; second, there was no comprehensive discussion of the amendment's implications. The court dismissed the petitioners' claims, ruling that in terms of the principle of participation, "the high threshold for intervention in this regard has not been crossed, requiring a fundamental flaw in the legislative process." This was despite the court acknowledging that the legislative process "lasted only about a month" and that it had "dramatic consequences and met with strong opposition." It seems that the court refrained from taking a further step in imbuing procedural content into the doctrine of abuse of the constituent authority, thus avoiding judicial procedural review of foundational legislation. Instead, the court limited itself to stating that such legislation with deep constitutional consequences should not be passed using the 'shortened' method of a committee bill.

The petitioners' arguments and the court's ruling raise questions regarding the need for uniform standards for constitutional judicial review, so that both substantive and procedural constitutional aspects are examined under the organizing principle of constitutional legislation.

Theoretical-Conceptual Framework

According to Bruce Ackerman, constitutional regimes create a distinction between two legislative paths: "ordinary politics" and "constitutional politics". While ordinary politics reflects the actions of the people's representatives in parliament and is influenced by transient political considerations, constitutional legislation must be adopted through a special legislative process that ensures decision-making based on broad values, deliberation, and consideration of long-term consequences, avoiding rashness. Moreover, doctrines within legisprudence that address the purposes of legislative procedures in ordinary politics also tackle the tension between effectiveness and speed. At the same time, they emphasize the need for restraint and adherence to procedural democratic principles, such as deliberation and participation, to prevent hasty or arbitrary decisions by legislators that might disproportionately infringe on human rights.

Israel "enjoys" a flexible constitutional structure and lacks (almost) any temporal or deliberative constraints on constitutional changes that the constituent authority seeks to enact. The few procedural limitations that do exist on the content of proposed laws are enforced infrequently and only in extreme cases by the court, which prioritizes substantive review over procedural review. The only case where the court conducted procedural review was the Quantinsky case, where the court, for the first time, invalidated a law due to flaws in the legislative process. In that case, the court expanded the principle of participation recognized earlier to include the possibility for members of the Knesset to conduct a "minimal discussion" on the proposed law.

In the Movement for Quality Government case, the court continued the prevailing trend, where judicial review of foundational legislation is examined through a combined judicial review: substantive examination based on the standard of "abuse of constituent authority", alongside procedural examination through legislative tools such as those established in the Quantinsky case. This distinction is problematic for two main reasons. First, it signals to the constituent authority, the Knesset, that substance is more important than procedure. The content of the constitutional text is deemed more important than the process of its creation and amendment. In Israel, this is particularly problematic given that the procedures for ordinary legislation and constitutional lawmaking are indistinguishable. Second, the standard set in the Quantinsky case allows the constituent authority, in practice, to disregard constitutional procedural norms. As long as the constitutional enactment and amendment process remains unchanged, i.e., without enacting a Basic Law: Legislation, there is a need to refine and update the doctrine of the participation principle to align with stricter judicial standards for constitutional processes. This should be done without applying the stringent standards of the proper legislative process doctrine, which focuses on the quality of the process and whether the legislator reached a reasonable outcome through proper deliberation.

Due to space constraints, I will focus my proposal on two procedural parameters, the adoption of which can develop the Quantinsky doctrine and strengthen institutional-procedural norms while avoiding the imposition of an overly high threshold. The first is the duration of the discussions held during the constitutional enactment or amendment (based on the proposal’s length, complexity, and scope of implications). The examination of the deliberation duration does not end with the number of days, but additional parameters can be incorporated, such as: the number of sessions, the length of each session, whether there were breaks between sessions (legislative pace), and the number of participants in the committee meetings (quorum). The second parameter is the extent of the discussion's influence on the content or formulation of the proposal.

These procedural parameters express two constitutional-procedural principles: (1) Time constraints in the constitutional process, which can enhance public participation and involvement, as well as slow down and prioritize restraint over the actions of the constituent authority, promoting thoughtful legislative processes; and (2) deliberation and participation of the people's representatives in the constitutional process. I believe that adherence to these parameters within judicial procedural review may incentivize constitutional decision-making that does not settle merely for the possibility of "forming an informed opinion," as is customary.

Normative-Practical Framework

The court's refusal in the Movement for Quality Government case to establish a stricter or more refined normative threshold than the one set in the Quantinsky case is linked to its call for the constituent authority to regulate the constitutional rules of the game through the enactment of a Basic Law: Legislation. In light of this, I propose that, as part of the regulation of the constitutional rules of the game through the enactment of a Basic Law: Legislation, procedural norms should be enshrined, including temporal and deliberative limitations that reflect at least the procedural threshold proposed here.

To date, fourteen proposals for a Basic Law: Legislation have been submitted to the Knesset, focusing on the supremacy of Basic Laws, rigidity, and judicial review of legislation. These proposals addressed voting quorum and readings but neglected procedural mechanisms prioritizing constitutional politics. Given the stricter nature of constitutional amendments, introducing mechanisms like minimum deliberation times and participation quorum is crucial. The Movement for Quality Government ruling highlighted the need for procedural norms, marking a turning point in how constitutional legislation in Israel should be approached.

Gonen Ilan is a PhD Candidate at Bar-Ilan University (Israel). The post is based on an article recently published in a book by the Israel Democracy Institute, "The Reasonableness Clause Ruling: Initial Reflections" (2024).

Suggested citation: Gonen Ilan ‘A Call for Codifying Institutional and Procedural Norms in the Constitutional Process in Israel’ IACL-AIDC Blog (17 September 2024) A Call for Codifying Institutional and Procedural Norms in the Constitutional Process in Israel — IACL-IADC Blog (blog-iacl-aidc.org)