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The Israeli Constitution - From Evolution to Revolution by Sapir, Gideon (14th August 2018)


From: The Israeli Constitution: From Evolution to Revolution

Gideon Sapir

(p. 1) Introduction

at social events, people often ask, “What do you do?” Outside Israel, I usually keep two answers ready because, after my first answer—“I teach constitutional law”—the almost inevitable sequel is, “How can you teach constitutional law in Israel if Israel does not have a constitution?” Dealing with this question requires a strategic decision. I can offer a long and thorough response, concisely describing the constitutional history of Israel from its establishment until today. That, however, would probably detract from my appeal as a small-talk partner, and quickly bring the budding relationship to an end. I can obviously choose the opposite course: provide a brief, matter-of-fact answer, clarifying that Israel has a constitution, indeed one traceable to a particular date, and that the Israeli constitution is enforced, as in other countries, through the institution of judicial review. Yet, this approach too entails some risks, since some people are offended when told they are mistaken. So I usually choose a middle course—first, I note that this is an excellent question, and indeed extremely common whenever I am asked about my work. By then, close to having exhausted my exchange-of-pleasantries quota, I rush to conclude by stating that Israeli reality is complex, and inviting the inquirer (with a smile, of course) to the lecture/course I am about to give on the subject.

The explanation for the limited knowledge about Israeli constitutional law lies in a choice that Technion leaders made, some hundred years ago, when, at the end of an (p. 2) extended polemic, they decided to conduct their academic activity in Hebrew. As a result, only a small segment of the rich judicial and academic activity that takes place in Israel in the field of constitutional law has become known to the international community. This book seeks to make a modest contribution by helping to expose the Israeli constitutional scene to the English-speaking scholarly community.

Israeli constitutional law is a sphere of many contradictions and traditions. Growing from the tradition of British law, which was absorbed by the legal system of Mandatory Palestine, Israeli constitutional law has followed the path of constitutional law based on unwritten constitutional principles. At the same time, inspired by the new arena of post-World War II constitutionalism, as well as the phrasing of Israel’s Declaration of Independence, the newly established state did plan to adopt a constitution. To date, this vision has, however, not been finalized due to domestic controversies on the content of the constitution. In the meantime, it has been transformed into the enactment of a series of Basic Laws, which function as Israel’s de-facto constitution. This special history and its constitutional outcomes are to be explored in this book.

In order to perform the task, I shall use two complementary methods—a chronological description alongside a thematic review. The first part of the book (Chapters 1 to 4) is devoted to a chronological description of the process of establishing a constitution in Israel. As mentioned, the Israeli case is a fascinating example of a constitution that was not created at a clear point in time, but has resulted from an ongoing process that began with the establishment of the state, and is, in fact, still continuing. The second part of the book (Chapters 5 to 8) is built thematically. Each of the chapters in this part is devoted to the review and evaluation of a major constitutional issue that is also the subject of discussion and research in other countries, with emphasis on the unique characteristics of the Israeli case. Read together, the various chapters that comprise this book present Israeli constitutional law as a living sphere, which reflects the dilemmas faced by the country, as well as the challenges of constitutional theory in general. As such, my hope is that the book will promote the future study and development of Israeli constitutional law, as well as an understanding of the complexities of constitutional systems that still cope with the challenge of nation-building and transition.

The Structure of the Book

Chapter 1 describes the constitutional history of the State of Israel from its establishment until the early 1990s. In this period, Israel had no formal Bill of Rights. The Declaration of Independence had promised a constitution, but a public controversy, (p. 3) which lasted nearly two years, made it clear that drafting a constitution was not yet possible. At that point, the Knesset accepted a compromise solution proposed by MK Yizhar Harari: the constitution would be drawn up in a piecemeal process, in the form of Basic Laws that would be consolidated at its conclusion.

The Harari decision was implemented only partially. Although the Knesset enacted a series of Basic Laws over the years, these mainly addressed the rules of the political game, and hardly the realm of values and basic rights at all. In the absence of a constitutional Bill of Rights, the Supreme Court created alternative mechanisms for the protection of human rights. Despite its activistic approach, however, the Supreme Court endorsed restraint, refusing to nullify legislation that explicitly violated human rights, as long as no constitutional Bill of Rights had been enacted. Several attempts to anchor a Bill of Rights in a Basic Law proved unsuccessful, and no breakthrough seemed in sight.

In 1992, a momentous event took place in Israel, or at least this is how the Israeli Supreme Court interpreted it ex post factum. The Knesset enacted two Basic Laws dealing with human rights: the Basic Law: Human Dignity and Liberty, and the Basic Law: Freedom of Occupation (hereinafter: “the new Basic Laws”). Chapter 2 explores an intriguing question that is yet to receive a satisfactory answer: After forty-four years of failure and inaction, why did the Knesset suddenly decide to anchor a Bill of Rights in a Basic Law? What prepared the ground for the constitutional revolution?

Four theses are presented as possible answers. One thesis states that success followed the exploitation of a “constitutional moment” of heightened distrust between the public and the political powers. At this constitutional moment, everyone understood that a change in the balance of forces was required, strengthening the Supreme Court’s powers of review. A second thesis pins the success of the maneuver on the tactic adopted by the proponents of the law. Instead of insisting on the legislation of a full Bill of Rights, they split the Bill and referred to the Knesset only the sections on which agreement could be reached. According to a third thesis, what enabled the enactment of the Basic Laws was a tactic adopted by their proponents to refrain from clearly revealing the full meaning of the maneuver they were leading, thereby lulling its traditional opponents. According to this explanation, the almost-total absence of public constitutional discourse contributed to the misunderstanding, an absence that led to general ignorance regarding the influence and consequences of legislating Basic Laws. According to the fourth thesis, the success of the maneuver resulted from two changes in Israel’s political reality. The first was the loss of the Labor party’s hegemony and the uncertainty about the coalition’s future composition, and the second, the growing strength of marginal elements that threatened the hegemony of the secular-center-veteran sector. The first change weakened the interest of coalition parties in opposing (p. 4) the “constitutionalization” of the political system, and the second neutralized the institutional interest of Knesset members representing the older elite in opposing the constitutional move. Chapter 2 concludes with the claim that the maneuver of March 1992 has more than one single explanation, and all four factors mentioned above contributed to its success. Nevertheless, it is argued that none of them could have turned the Basic Laws into what they are today—a fully-fledged, constitutional Bill of Rights. Completing this task became possible through the combination of a dominant and resolute Supreme Court and a weak and hesitant legislature.

Chapter 3 depicts the main constitutional developments since the beginning of the constitutional revolution in March 1992.

A constitutional consensus that developed in Israel over the years was that only “entrenched” Basic Laws enjoy normative primacy. The concept of “entrenchment” was understood literally, as requiring a special majority as a condition for changing the law. The examination of the new Basic Laws in light of this constitutional consensus should have led to the conclusion that their legislation did not really create a “constitutional revolution.” Of the two new Basic Laws, only the Basic Law: Freedom of Occupation includes an entrenchment provision, and therefore, according to the constitutional consensus that prevailed at the time the new Basic Laws were enacted, only the Basic Law: Freedom of Occupation would have acquired the constitutional status allowing for judicial review. The Basic Law: Freedom of Occupation protects only one right. If only this Basic Law enjoys constitutional status, the constitutional revolution is a minor one indeed.

At this point, the Supreme Court entered the picture. Although the Basic Law: Human Dignity and Liberty is not entrenched from change, it does include a “limitation clause” specifying the conditions under which it is permitted to infringe the rights that are embodied in it. The Court stated that this clause constitutes “substantive” entrenchment.

The notion of substantive entrenchment enabled the Court to strengthen the constitutional status of the Basic Law: Human Dignity and Liberty. However, this tool proved limited in its range, since the only entrenched laws are the Basic Law: Freedom of Occupation, and the Basic Law: Human Dignity and Liberty. None of the “old” Basic Laws (except for several provisions of other Basic Laws) are entrenched, either substantively or formally. Even after the judicial widening of the concept of entrenchment, the old Basic Laws remained as they had been, and failed to acquire constitutional status. The Court, nevertheless, decided to broaden entrenchment once again by ruling that all Basic Laws, including those that were not entrenched, would thenceforth enjoy normative primacy.

One explanation for the success of the March 1992 constitutional maneuver was, as noted, the compromise that omitted controversial rights from the new Basic Laws. (p. 5) The result of this compromise was that important rights, such as freedom of religion, equality, and freedom of expression, remained outside—a reality that the Supreme Court found undesirable. On or about the enactment of the new Basic Laws, some of the Supreme Court justices began to develop an interpretive approach that would enable reading the unenumerated rights into the Basic Law: Human Dignity and Liberty—including rights that had been deliberately excluded from the law as part of the compromise—thereby equating their status to that of the rights explicitly enumerated in the law. This broad reading, which has become the prevalent consensus in the Court over the years, means that no additional Basic Laws are necessary to complete the constitutional enterprise.

The conclusion warranted by the facts presented in this chapter is that the true constitutional revolution did not occur at the time of enacting the new Basic Laws in March 1992. It is, instead, an ongoing revolution, taking place largely within the Supreme Court.

The reality of an extremely dominant Court instituting a constitutional revolution while dramatically changing the rules of the political game invites public reaction. Chapter 4 is devoted to a description of this reaction. The chapter also deals with the intriguing fact that, in contrast to the critical dimension of the public reaction, legal academia explicitly or implicitly supported the Court’s moves almost without exception in the first years after the March 1992 revolution. An interesting trend has emerged over the recent decade: criticism is now extending to include circles that had, at first, supported the Court’s moves, and this chapter will outline several explanations for this development.

The rest of Chapter 4 is devoted to a description and evaluation of several proposals raised by opponents of the Court’s moves, who have sought to thwart or amend them. Among these proposals was one that called for denying the Supreme Court the authority to engage in judicial review, by instead entrusting it to a special constitutional court; another that sought to enlarge the bench and establish a special procedure and a minimum majority as a condition for rescinding laws; a proposal to change the procedure for electing judges; and one to anchor in the constitution clear limitations on the authority of the Court. As for now, all of these proposals have failed to materialize.

Chapter 5 focuses on the challenge of social rights in the context of Israeli constitutional law. The constitutional status of social rights and their enforceability is an open question in many systems, but even more so in Israel, which lacks explicit recognition of these rights. The debate on the constitutionality of social rights in Israel emerged following the 1992 constitutional revolution. At first, it was not clear if social and economic rights are considered protected constitutional rights. However, this debate is largely over. Israeli jurisprudence has gradually but consistently recognized that the (p. 6) basic right to human dignity includes social and economic rights, and they enjoy constitutional protection. The first part of the chapter will be devoted to describing the changes that occurred in the court’s position on the matter from 1992 until today.

While most judges view the move with favor, and are even effusive with their obiter dicta supporting additional expansion of social rights, there are judges who have reservations about this trend, and warn of what they see as an unrestrained intrusion on the part of the judicial branch into the other branches of government. I shall describe these two approaches in the second part of the chapter, and see just how much the opposition’s concerns are justified.

Another question that occupies writers in the field regards the influence of litigation and judicial intervention on the actual situation on the ground. There are those who argue that the attempt to lead to social change via the court is doomed to failure, and that the effort to bring change should focus on the legislature and public discourse. I shall examine this argument in the last part of the chapter with a test case: s series of rulings—in the field of integrating children with special needs into the regular education system—in which the court revealed quite a bit of activism in enforcing a social right. I will argue that judicial intervention only led to a modest change, and try to discern the reasons for this.

Chapter 6 analyzes the process of constitutional balancing and the various balancing formulas utilized by the Supreme Court. Human rights, important as they are, are not unlimited. Sometimes they clash with each other, at other times they clash with public and private interests, and in all those cases, a balance has to be made between the right and its competitors. Every system of constitutional law has its own balancing mechanisms. In Israel, the accepted approach for many years was that upon a clash between a human right and public interest, a vertical balance should be made between the two, whilst in cases of a clash between rights, the balancing formula was horizontal. Choosing the vertical balancing formula leads to the complete adoption of one party’s position and the absolute rejection of the other party’s. On the other hand, choosing the horizontal balancing formula requires a compromise between the two parties, in such a way that neither gains full satisfaction, on the one hand, but neither is entirely rejected, on the other hand.

Over the years, judges and academics in Israel criticized the policy of the a priori choice of vertical balancing in cases of confrontation between rights and interests. They asserted that even if the proponents are not of equal status, they still represent two proper, recognized values. Consequently, if they can both be protected by a reasonable waiver on the part of each of them, consideration should at least be given to that possibility, rather than rejecting it outright.

In 1992, with the enactment of the new Basic Laws, said balancing criteria were prima facie abandoned. Both new Basic Laws include a limitation clause that restricts (p. 7) any infringement of constitutional rights “to an extent no greater than required.” The Supreme Court interpreted this clause as setting a requirement of proportionality, relying on German and Canadian jurisprudence. Since its entry into Israel, proportionality has become a dominant doctrine in Israel’s constitutional law, with a sophisticated body of case law interpreting it.

In this chapter I shall concentrate on a description of several issues that raise special comparative interest. Amongst other things, I shall indicate the fact that the Supreme Court has interpreted the last component of proportionality (proportionality sensu stricto) in such a way as to provide a certain answer to the criticism that was leveled at the old balancing criteria.

Chapter 7 is dedicated to the issue of emergency constitutional powers and other national security-related constitutional matters. Israel offers a unique case study for assessing the constitutional regulation of national security. The special value attached to the Israeli example derives from several factors. First, Israel has experienced continuous existential threats since the time of its establishment. Therefore, in Israel, the constitutional regulation of national security is not merely a matter for the law books; it is the result of a constant challenge to both the existence of the country and the rule of law. Second, Israel presents a working laboratory for one of the constitutional models dealing with national threats—a model based on the power to declare an emergency regime. Against the controversy surrounding this model, Israeli law serves as an example of both its advantages and its weaknesses. Third, the Supreme Court also exercises judicial review in matters related to the military and national security, thereby making the regulation of security matters in Israel a living legal reality.

The analysis in this chapter is aimed at reviewing and evaluating the Israeli case study, taking into consideration its unique traits, as well as its potential contribution to understanding the relative advantages and disadvantages of models for regulating emergency conditions in other systems.

The Jewish religion occupies a prominent place in legislation and public life in Israel. The reasons for this are varied. First, the Jewish religion has an all-encompassing character that leads it to strive to influence public life, as opposed to religions such as Protestantism, whose ambitions are more restrained. Second, the Jewish religious group in Israel is large and dominant, and therefore has greater political power than religious groups in most countries in the West. Finally, even part of the non-religious Jewish group is interested in maintaining a degree of ties to religion, in light of the unique connection in Judaism between religion and nation.

In the first decades of Israel’s existence, the relations of religion and state in Israel were anchored in a series of arrangements, which were known as the “status quo.” There is a debate regarding the creation circumstances of the status quo. Some claim (p. 8) that most of the arrangements it contains were formed on the eve of the state’s founding. In contrast, some claim that the status quo arrangements were formed after the state was founded, during the first years of its existence. Either way, the status quo was preserved for a number of decades, even if its specifics were changed a little here and there. This situation has altered over the last two decades; the status quo is weakening, and many arrangements, which were once considered to be set in stone, have been reopened for discussion.

A number of causes joined together to undermine the status quo, one of them—if not the main one—being the increasing intervention of the Supreme Court in questions of values in general, and in matters of religion and state in particular. In Chapter 8 I shall describe the customary arrangement regarding three central issues—the draft of yeshiva students into the IDF, marriage and divorce law, and Sabbath—as well as the changes that have taken place over the years in every one of those issues, focusing on the court’s role in creating the change.