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Published online by Cambridge University Press: 12 February 2016
In an article published in an earlier issue of this Review, the question was raised whether the courts of Israel have finally reached a conclusion on the question of their own power of judicial review of legislative measures passed by the Knesset. It was submitted that the question should be solved by a political rather than a judicial decision.
In the present article it is intended to examine a hypothetical constitutional question, namely, can the Knesset, acting within the framework of the existing legal system, adopt or develop a written, rigid Constitution which would become the “supreme law of the land” and which would be effectively protected by the courts?
1 Likhovski, E., “The Courts and the Legislative Supremacy of the Knesset” (1968) 3Is.L.R. 345Google Scholar (hereinafter cited as “Likhovski”).
2 Cf. Wheare, K. C., Modern Constitutions (Revised Ed.) 17 (hereinafter cited as “Wheare”).Google Scholar
3 See Transition Law, sec. 2; under the provisions of that section “a Law” must be signed by the Prime Minister, the Minister charged with its implementation and by the President of the State (provided such Law does not relate to the latter's powers).
4 Cf. Bennion, F. A. R., The Constitutional Law of Ghana 80.Google Scholar
5 Cf. Wheare, ibid., 17:
“This is not to say that Britain could not have a Constitution. It may come about that public opinion strongly demands that the powers of parliament be legally limited by a Constitution as those of the parliament of Ireland are, and this opinion might prevail. If a federal system came to be established in Britain, a supreme Constitution would have to be drawn up. All that can be said so far is that this has not yet happened and that if it is to be done the law of the British system of government would have to be changed—the doctrine of the sovereignty of parliament would have to be abolished.”
Professor Wheare seems clearly to subscribe in this passage to the orthodox view of the common law on the sovereignty of Parliament. On that doctrine see more fully Likhovski, 362 et seq.
It may be remarked in passing that Professor Wheare does not elaborate on how the new British Constitution will be made into the supreme law of the land. So in Israel, pursuant to the force of public opinion, a new Constitution may be adopted either by a Constituent Assembly specially elected for the purpose of adopting a Constitution, or by a referendum. To remove any doubts, it would be advisable to adopt such Constitution by a special “constituent process” distinct from the ordinary “legislative process” (on Israel legislative process see Knesset Procedural Code 1420, Yalkut HaPirsumim 590, Rule 87 et seq.) The new Constitution may either expressly provide that it is to be the “supreme law of the land” (Cf. U.S. Constitution, art. VI), or it may imply such a constitutional rule.
6 If a new written Constitution is adopted, it would seem advisable to establish in clear language the doctrine of judicial (or other constitutional) review. It would, moreover, be desirable to give the reviewing authority or authorities clear indications of the limits of the power of constitutional review and the subject matter of review.
7 5 Divrei HaKnesset 1743.
8 The Resolution reads as follows:
“The First Knesset charges the Constitution, Legislative and Judicial Committee [of the Knesset] with the duty to prepare a draft Constitution for the State. The Constitution will be comprised of several Chapters, and each of the said Chapters shall in itself constitute a Basic Law. Each of the several chapters shall be brought before the Knesset as soon as the said Committee completes its work and all Chapters (already adopted) shall form the State's Constitution.”
There seems to be no real difference of principle between a Constitution adopted in a single or a number of legislative measures. Should the Constitution become the “supreme law of the land”, then what matters from our point of view is that a rule which formerly had the force of an ordinary law of the land in our flexible unwritten Constitution, will acquire by a “constituent” process a superior power and will not be alterable by an ordinary legislative measure.
9 See 5 Divrei HaKnesset 1721–22.
10 The concept “sovereignty of the Knesset” will be used in a sense not differing in any material sense from the sense of the concept “sovereignty of Parliament”, as used by the supporters of the orthodox theory of the common law. On that theory, see more fully Likhovski, 362 et seq.
11 To the question why go to all the trouble of enacting Basic Laws at all, this answer might be given: to change from a flexible unwritten Constitution in the British style, to a flexible written Constitution which is contained in one or more legislative measures. See n. 2, above.
12 16 Molad 284.
13 May it be said in passing that Mr. Sternberg might have buttressed his position still further by showing that some sections of the Basic Law: The Knesset (though not of the Basic Law: The President of the State) are drafted in very general language. Some of them clearly provide, and others imply, that the general ambivalent language will be filled in by supplementary ordinary Laws of the Knesset, cf. Basic Law: The Knesset, sees. 5, 7(8), 17, 18 and 39.
14 Cf. Barak, A., “Subordinate Legislation” in XVI Scripta Hierosolymitana, 219.Google Scholar
15 See, however, Likhovski, 357 et seq.
16 16 P.D. 430, 440.
17 Vol. II, 269.
18 “Fundamental Laws and Entrenched Laws” (1961) 17 HaPraklit 230, 236 (hereinafter cited as “Akzin”).
19 Akzin, cit., 236.
20 Professor Akzin, in his Draft Constitution For the State of Israel (1965), suggests two alternative methods of adopting the Constitution. First by adopting, on the part of the Knesset, a Basic Law: Adoption of the Constitution. Such Basic Law shall be passed by a special legislative process and by a special majority. The Constitution will come into force on its adoption by the Knesset.
Secondly, by submitting the Basic Law. Adoption of the Constitution to a referendum. The Constitution will come into force only after approval by referendum: ibid. 29. Both methods would reconstitute the Knesset into a Constituent Assembly. The second method is similar to that adopted in Ghana; see Bennion, F. A. R., The Constitutional Law of Ghana, Chapter 2.Google Scholar The special “constituent procedure” may thus be assumed to be evidence of “new political” or constitutional reality supported strongly by the force of public opinion with the effect attributed to such events by K.C. Wheare; see n. 5, above. Is it then to be taken to mean that Professor Akzin would see in that event a change in the basis of Israel's existing Constitution, which in the language of Wheare, “though it might happen … all that can be said so far is that it has not yet happened …”? But see n. 5, above.
21 Ibid. 236. Professor Akzin relies on Harris v. Minister of the Interior, 1952 (2) S.A. 428, to show that even where public law is based on English law there could be adopted a written rigid Constitution. But see Berinson, J. in Bassul v. Minister of the Interior (1965) (I) 19P.D. 337Google Scholar, 350, where the Court relies on that very case to prove a contrary proposition, and see more fully Centlivres C.J. at 496, in Harris v. Minister of the Interior. For the distinction between South Africa and Britain and possibly Israel see Keir, and Lawson, , Cases in Constitutional Law (4th Ed.) 8.Google Scholar Referring to Harris v. Minister of the Interior, the authors say:
“But the edge of this decision would be somewhat blunted if it were attempted to apply it in this country, for the South Africa Act, which prescribed the procedure, itself established and regulated the composition of the South African Parliament, and so was both historically and logically prior to it, whereas the composite nature of the United Kingdom Parliament and the need for obtaining the assent of its three component parts do not depend on statute: Parliament does not acknowledge either the historical or logical priority of any statute.”
22 Akzin, 236 et seq.
23 Cf. n. 20 above.
24 Akzin, B., International Lawyers Convention In Israel (1958) (Editor Rimmel, M.) (hereinafter “LCI”).Google Scholar
25 See Akzin, 236.
26 United Nations General Assembly, Resolution 181 (11) Official Records: 2nd Sess. Resolutions DOC/A 519 pp. 131–50.
27 On January 25, 1949.
28 See Rackman, E., Israel's Emerging Constitution, 1948–1951.Google Scholar
29 Wheare, 2.
30 Cf. 36 Divrei HaKnesset 970 and 1037. And for a more recent statement by Y.S.Shapira (Minister of Justice) see The Jerusalem Post, 17.6.1966.
31 For the outlines of Mr. Eshkol's present Government Programme, see 21st meeting of Sixth Knesset, Divrei HaKnesset of 12.1.1966, pp. 351, 400.
32 For a more recent statement, see Y. S.Shapira (Minister of Justice), as reported in Ha'aretz, 9.6.66.
33 Sees. 4 and 44–46 of the Basic Law:
The Knesset. These sections undoubtedly prove that the Third Kneset considered that it could bind its successors. Also on these sections, see generally Likhovski, 359 et seq.
34 Ibid. 364 et seq.
35 Rubinstein, A., “Israel's Piecemeal Constitution”, in XVI Scripta Hierosolymitana, 202–18.Google Scholar
36 Cf. Witkon, A., “Justiciability” (1966) 1 Is.L.R. 40, 57–59.Google Scholar
37 See generally, Likhovski, 363 et seq., and Mitchell, J.D.B., Constitutional Law 13Google Scholar:
“These difficulties which may face an individual again emphasize that judicial remedies, while they are important, must in this branch of law be regarded as only one means of enforcing law. Both in its substance and in its methods, public law, in the sense of constitutional and administrative law, has material differences from private law.”
38 Cf. G. Hausner, LCI 228:
“When one comes, finally, to evaluate the extent of freedom enjoyed by the individual in Israel, at least on the legal side, one is entitled to a certain degree of satisfaction, especially considering the very difficult conditions under which so much has been achieved.” Mr. Hausner seems nevertheless “… to think that a rigid constitutional frame is on the whole preferable, even if it serves no better purpose than obstructing and embarrassing an over-active Executive.”
