A Chronicle of a Failure Foretold: Why I Would not have Joined the Committee Established by Justice Minister Gideon Saar to Draft Basic Law: Legislation

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Justice Minister Gideon Sa’ar established a committee composed of coalition representatives to examine the question of adopting a Basic Law: Legislation. The Supreme Court has also voiced a plea in recent years: “Give us Basic Law: Legislation.” This is a slippery constitutional provision—numerous proposals for its enactment have been tabled over the years, yet none have matured into consensus. Especially notable was the 2004 committee chaired by Minister Yaakov Neeman, which left behind an unreasoned draft of the Basic Law, now serving as a starting point for the current discussion. Each political actor has distinct motivations for supporting the adoption of Basic Law: Legislation. In this article, I aim to explore the renewed interest in this Basic Law and assess the likelihood that different political actors will achieve their respective objectives. The prevailing proposals for Basic Law: Legislation take the existing constitutional framework as given and seek to entrench it with limited modifications. However, I argue that one must not decouple the method by which Israel's constitution was adopted from the manner in which it ought to be amended.

The Objectives of Political Actors

Israeli politicians are currently driven by two central aspirations: first, to determine the constitutional rules of the game; second, to regulate the relationship between the judiciary and the elected branches. The need for clear and agreed-upon rules of the game has intensified in light of Israel’s acute constitutional crisis, marked by four rounds of elections within two years—some centered on the eligibility of a criminal defendant to serve as prime minister. Presently, Israel is governed by an exceptional rotational government headed by a minority party, seven of whose members were elected to the Knesset. Before that, the prime minister was an individual facing criminal charges. There is a widespread public perception that political actors are altering Basic Laws—the very constitution of the state—frequently and opportunistically to suit momentary coalition needs. For example, Basic Law: The Government was redrafted to accommodate the establishment of a rotational government with two sitting prime ministers simultaneously, thereby enabling the Gantz-Netanyahu coalition.

The desire to regulate the relationship between politicians and judges stems from a broader aspiration to enhance the standing of elected bodies following the constitutional revolution. Many politicians seek to strip lower courts of their authority to invalidate legislation and concentrate this power exclusively in the hands of the Supreme Court. Even within the Supreme Court, they propose that such authority be exercised only by a special majority. Moreover, many advocate for the explicit adoption of an override clause, empowering the Knesset to override judicial rulings and/or constitutional provisions. Under such a framework, the Knesset would hold the final word on constitutional matters. Numerous actors propose that a bare majority of 61 Members of Knesset—within reach of any coalition—should suffice for overriding purposes. Politicians also wish to clarify that the courts should not intervene in legislative proceedings unless prescribed voting thresholds are unmet. Furthermore, they aim to preclude the Court’s authority to invalidate constitutional amendments based on the doctrine of the unconstitutional constitutional amendment.

On the other hand, the Supreme Court also yearns for this Basic Law. The Court perceives the Knesset as failing to treat the Basic Laws with sufficient respect. Judges—particularly those retired—do not hesitate to articulate their views regarding the proper content of the Basic Law. They hope that through the enactment of Basic Law: Legislation, legitimacy will be conferred upon the constitutional revolution and upon the Court’s authority to invalidate legislation. They also seek to entrench the existing Basic Laws so that they cannot be amended by a 2-1 majority in a three-judge panel, but only by a special legislative majority. The judiciary is willing to accept the adoption of a general override clause, provided that it may only be employed by a broad—not merely coalition—majority in the Knesset.

On the Link Between Constitutional Adoption and Amendment

It appears that the political actors do not intend to reopen the constitutional adoption process. Instead, they aim to entrench the existing Basic Laws, thereby largely fixing the current rules of the game. However, I argue that the method by which Israel’s constitution was adopted must inform the appropriate procedure for its amendment. There are no shortcuts if the political actors truly wish to enhance the legitimacy of Israel’s constitutional framework.

Why assume there is no connection between the mode of constitutional adoption and that of constitutional amendment? First, empirically, we already have a constitution in the form of the Basic Laws. The Supreme Court recognized these laws as Israel’s constitution in the Mizrahi Bank ruling, with eight of nine justices concurring. Consequently, many actors believe that the remaining task is to entrench this constitutional product. In doing so, they hope to reduce disputes, enhance legitimacy, and avoid ad hoc political manipulations. Second, many scholars believe that the power to amend a constitution is inferior and derivative of the power to enact it in the first place. In fact, this distinction has given rise to an entire body of scholarship arguing that constitutional amendments may themselves be unconstitutional.

Contrary to the dominant view, I contend that both powers—the power to adopt and to amend a constitution—exist on the same normative plane. This principle was already recognized in the Mishnah, which stated: “The mouth that forbade is the mouth that permitted.” Just as statutory amendment presumes the same authority that enacted the statute, so too with constitutional amendments. Indeed, in many respects, constitutional amendments reflect the current will of the people and therefore enjoy greater democratic legitimacy than the original constitution.

In my 2007 article, “Shall We Ask the People?”, I conducted a theoretical and comparative analysis of constitution-making and amendment procedures worldwide. I concluded that two principal models are available to the Israeli legislature—both of which were discussed in the Mizrahi Bank case.

• Legislative Sovereignty Model: Under this model, the legislature possesses ultimate authority, including the ability to bind itself substantively and/or procedurally. The legislature determines the constitutional rules and holds supreme authority over constitutional content. This model was adopted in many Central and Eastern European countries following the fall of the Iron Curtain.

• Popular Sovereignty Model: This competing model aims to ensure that the people themselves adopt and amend the constitution. Of course, “the people” is an amorphous concept. By invoking the term, we refer to constitutional procedures that more accurately reflect the will of the people than the actions of the legislature alone. Even when the legislature acts with a special majority, many studies show that this does not guarantee alignment with the people’s will. For instance, the European Constitution was adopted by various parliaments with overwhelming majorities but later failed in referenda in those same countries. A supermajority in the legislature is no proxy for popular consent.

Current proposals for Basic Law: Legislation would place Israel under a variation of the legislative sovereignty model, where a supermajority of Knesset members could amend the constitution. I argue that it is inappropriate to require a special majority for amending the constitution without having required one for its original adoption. A random parliamentary majority should not be able to set a constitutional status quo that can only be altered with a supermajority. Doing so creates undemocratic veto power for the minority. Furthermore, if the Knesset were to entrench Basic Laws such that they could only be amended by a special majority, and then later amended them with a regular majority, the Court would face a difficult question: Should it enforce the self-imposed limitations of the legislature? Until now, when the Court has required compliance with entrenchment provisions, the threshold involved a simple majority of 61 MKs—a majority that exists if all MKs are present and voting.

In my view, the second model—popular sovereignty—is preferable. It creates a true hierarchy between the constitution and regular laws and provides strong legitimacy for judicial review as a tool to protect the people’s will, as expressed in the constitution, from legislative encroachment. This model imposes real constraints on the legislature. Constitutional adoption and amendment under this model require consensus-building. It mandates public approval of the Basic Laws or their amendments, which could be obtained through several means:

1. Requiring a national referendum in addition to a supermajority in the Knesset.

2. Requiring that two successive legislatures approve the constitution or its amendment by supermajority, with elections focusing on the constitutional question.

3. Electing a special constituent assembly to draft the constitution, though I find this less practical in Israel. As a small state, Israel may not be well suited to host both a legislature and a constituent assembly. Moreover, it is doubtful that the public figures whom the public would entrust with drafting a constitution would differ meaningfully from those already in the Knesset.

In any case, under the popular sovereignty model, original Basic Laws must receive popular approval as a precondition for entrenchment. Once such approval is granted, constitutional amendments should also require popular consent.

On the Hybrid Approach

A hybrid of the two models may be conceivable. However, its costs may outweigh its benefits. If the constitution is adopted through broad consensus but amendable by a legislative supermajority alone, the public will not treat the constitution-making process seriously. Conversely, if the constitution is adopted by the legislature but cannot be amended without popular approval, it entrenches a constitutional status quo created through political manipulation. It is questionable whether the Court should protect such a status quo if the Knesset later seeks to amend the constitution without adhering to the entrenchment provisions.

The Inherent Limits of Basic Law: Legislation

Politicians also seek for Basic Law: Legislation to strip the Court of its authority to review the substance of constitutional provisions. However, it is doubtful whether this goal is attainable. For example, the Indian Parliament attempted, via constitutional amendment, to bar the judiciary from applying the unconstitutional constitutional amendment doctrine. Yet the Constitutional Court invalidated the amendment, holding that Parliament lacks authority to eliminate judicial power.

Additionally, politicians hope that Basic Law: Legislation will create an exclusive mechanism for constitutional amendment. Yet global experience suggests that constitutions often change through other means—such as through constitutional statutes or transformative judicial decisions.

Conclusion

The enactment of Basic Law: Legislation without consensus over its adoption procedure will not constitute an achievement. Rather, it will deepen the rift between the Knesset and the judiciary, and within Israeli society. To enhance the legitimacy of Israel’s constitutional project, there is no alternative but to turn to the people to ratify the existing Basic Laws before they are entrenched. This course involves a non-trivial risk that the people may reject the constitutional content—but this is a risk worth taking if we seek a constitution that will stand the test of time. From this perspective, the Justice Minister should have appointed representatives from the opposition to the committee tasked with drafting Basic Law: Legislation, rather than limiting it to coalition members. Absent such representation, this is a chronicle of failure foretold.

Suggested Citation:

A Chronicle of a Failure Foretold: Why I Would not have Joined the Committee Established by Justice Minister Gideon Saar to Draft Basic Law: Legislation ICON-S-IL BLOG, May 5, 2022 [Hebrew].