Judgment Day Weapon: The Pros and Cons of the Different Paths available to Judicially Invalidate a Basic Law

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The question of whether there exists judicial authority to annul a Basic Law is less compelling than it might initially seem. In extreme circumstances, it is self-evident that limits must be recognized on all forms of governmental power, including the power to enact or amend a constitution. Why, then, has this issue become so prominent in Israeli discourse in recent years? The persistent focus on this topic reflects a broader trend of radicalization within Israeli society across the political spectrum. Traditional legal tools—chief among them the powerful instrument of judicial interpretation—are no longer seen as sufficient. Many political actors have come to exploit the issue for political gain, amplifying the public debate both within and outside the Knesset.

The legal discourse has largely concentrated on the question of whether the Supreme Court possesses the authority to invalidate a Basic Law or an amendment thereto, rather than examining the possible legal pathways through which such authority might be recognized, along with their respective advantages and drawbacks.

Undoubtedly, each of us would prefer that representative institutions adopt policies and legislation aligned with our own worldview. When this aspiration is not realized, many resort to a variety of legal challenges, which often hinge on judicial intervention. Administrative or governmental decisions can be challenged on administrative law grounds that require parliamentary authorization for state action that infringes on human rights. Critics of judicial authority in such matters are often met with the argument that judicial intervention in fact strengthens the Knesset’s institutional standing vis-à-vis the executive, rather than undermining the will of representative institutions. These institutions retain the capacity to assert their preferences—by securing express statutory authorization.

Likewise, legislation may be challenged on the grounds that it is unconstitutional, for instance, due to inconsistency with Basic Laws. In response to critiques of judicial review in this context, it is often noted that if the Knesset, acting in its constituent capacity, disagrees with the Court’s interpretation, it has the authority to amend the Basic Laws to clarify its intent. This legislative power to revise the constitutional framework mitigates the alleged counter-majoritarian difficulty inherent in judicial review.

But what should occur if the Knesset has made its intentions explicit within a Basic Law? In such cases, judicial recognition of authority to review Basic Laws or their amendments becomes essential. Over the course of Israel’s constitutional development, the Court has laid theoretical foundations for such authority in various decisions while exercising it with great restraint. Although Israeli justices have long been divided on the theoretical justification for judicial review of primary legislation, they have generally agreed—both in the Mizrahi Bank case and in the Movement for Quality Government case—that the Israeli legal system includes supra-constitutional principles, such as the identity of Israel as a Jewish and democratic state. According to this view, even Basic Laws may be struck down if they fundamentally contradict these core principles. As President Barak stated in the Movement for Quality Government case, judicial annulment of a Basic Law requires a violation of the “core of democracy” and a denial of the minimal conditions necessary for the state to maintain its democratic character.

Each approach to reviewing or invalidating a Basic Law or its amendment carries distinct advantages and disadvantages. One possible avenue is through the doctrine of “common law constitutionalism.” According to this approach, the judiciary, as part of its authority to develop the common law, possesses inherent power to recognize foundational constitutional principles. This is an implied judicial power derived from the common law nature of the Israeli legal system. The Supreme Court acknowledged this possibility in Justice Barak’s minority opinion in the Laor Movement case, prior to the constitutional revolution, though this authority has remained unresolved. As I argued in earlier writings from 2012, even under a system committed to parliamentary sovereignty, the British House of Lords in the Jackson case recognized the possibility of invalidating legislation on common law grounds. This line of reasoning aligns with the view that parliamentary sovereignty itself is a judicially recognized doctrine, and, accordingly, the courts may also recognize limitations on that sovereignty. This, I believe, is the proper interpretation of President Barak’s jurisprudence, although he never explicitly stated it in such terms.

This pathway enables the imposition of limits not only on constitutional amendments but also on the very process of constitution-making itself. When a court invokes this authority, it is expected to recognize those fundamental principles that best align with the state’s constitutional history. The major difficulty, however, lies in the fact that this authority exposes the court’s creative role. There is no textual anchor for such judicial power—it arises "ex nihilo" and stems from the judiciary’s nature as a creator of law. Therefore, this power should be exercised only in extreme cases involving the negation of the foundational conditions necessary for a democratic state to exist.

A second possible path is that of the “unconstitutional constitutional amendment” doctrine. This doctrine is found in countries whose constitutions include explicit eternity clauses prohibiting certain types of amendments. It is also recognized in jurisdictions where courts have impliedly derived an eternity clause from the basic structure of the constitution and its foundational principles. This model presumes that the authority to amend the constitution is inferior to the authority to create it. It allows for the invalidation of constitutional amendments, but not of the original act of constitution-making, as its logic depends on the internal character of a given constitutional framework. Courts exercising this authority typically rely on constitutional text. This approach was first proposed by President Barak in the Mizrahi Bank decision and reiterated in the Mitrani case. It remained unresolved in later cases such as Bar-On, Academic Center for Law and Business, and Ben Meir.

This doctrine raises significant questions that I have addressed in detail elsewhere. Among them is whether the power to amend the constitution should be regarded as equivalent in status to the original power to constitute it—except in cases where the constitutional amendment seeks to redefine the identity of the sovereign people themselves. In such instances, the constitutional amenders cannot rely on a document whose source they now challenge. In all other cases, if the authority to amend is deemed equal to the authority to create the constitution, it is difficult to accept the doctrine of the unconstitutional constitutional amendment. As traditional sources might put it: "The mouth that forbade is the same mouth that permitted."

In the Israeli context, the challenge is even greater, given that it is often unclear whether a given provision constitutes a constitutional amendment or an act of constitution-making, particularly as Israel’s constitutional project remains incomplete. For example, Basic Law: Israel – The Nation-State of the Jewish People appears to be a new chapter of the constitution rather than a mere amendment. The doctrine of unconstitutional constitutional amendments is especially difficult to apply in Israel because of the anomalous nature of its constitutional adoption when compared with other systems. Israel’s Basic Laws were adopted by the Knesset using the same legislative procedure as ordinary statutes. Until the Mizrahi Bank ruling, political actors treated Basic Laws as having the same legal status as ordinary laws, with the exception of certain provisions such as Section 4 of Basic Law: The Knesset. Given the method of adopting Basic Laws, a difficult question arises: why should a Basic Law be granted greater weight or force than an amendment to it?

A third possible approach is the doctrine of “abuse of constituent power.” The Supreme Court appeared to adopt this doctrine in Academic Center for Law and Business, viewing it as less extreme and less problematic than the unconstitutional amendment doctrine. This doctrine was also suggested by President Barak in Mizrahi Bank but left undecided. According to the Court, this doctrine implies that a Basic Law may be invalidated due to an improper legislative process. Relying on it, the Court issued a nullification warning regarding the Basic Law: The Two-Year Budget, which had been enacted as a temporary provision. The Court held that enacting a Basic Law as a temporary provision was improper. This doctrine thus enables the invalidation of not only amendments but also entire Basic Laws when the legislative process is deemed flawed.

The Academic Center ruling is problematic because, in Israel, the legislative processes for statutes, Basic Laws, amendments to Basic Laws, and temporary provisions are identical: all require three readings and a simple majority, unless a special majority is explicitly prescribed. The judgment also appears questionable when one considers the problematic methods by which many Basic Laws—including foundational ones—were enacted: by simple majorities, with low parliamentary attendance, during caretaker governments, and often for ad hoc coalition needs. For instance, Basic Law: Human Dignity and Liberty was adopted just 50 days after the dissolution of the 12th Knesset. Basic Law: Freedom of Occupation was replaced in 1994 to accommodate coalition demands regarding a ban on importing non-kosher meat. Basic Laws were amended retroactively and endorsed by the Court even after the constitutional revolution. Some were enacted without the requisite majority, relying instead on the doctrine of legislative continuity, even where a special majority was required. Structural Basic Laws have been amended within days, with the Court expressing concern over the haste yet granting full effect to the legislation.

The logic of the judgment is further complicated by its assumption that judicial intervention in constitution-making via the abuse of constituent power doctrine constitutes less interference with Knesset activity than judicial review of amendments via the unconstitutional amendment doctrine.

Fourth, the Court may derive its authority to invalidate constitutional amendments from the legal mechanism authorizing the disqualification of political parties. In various articles over the years, I have developed the argument that the doctrine of the “unconstitutional constitutional amendment” should be understood as a mirror image of the party disqualification mechanism. In this view, the disqualification of parties serves as the front-line defense of the constitutional order, by preventing those who seek to undermine the state’s foundational principles from gaining access to the legislature and enacting laws or constitutional amendments. When the Court fails to prevent extremist actors from entering the Knesset and such actors succeed in passing constitutional amendments, the doctrine of the unconstitutional amendment serves as a rear-guard defense of the foundational principles of the legal order. These are two distinct mechanisms that operate at different points in time but pursue the same goal: preserving the core values of the state.

It is no coincidence that the Yardor decision, which concerned the disqualification of a political party, was also the first case in which the Israeli Supreme Court acknowledged the existence of supra-constitutional principles. Both doctrines—party disqualification and the recognition of foundational constitutional principles—share a common normative function: they protect the state’s identity as both Jewish and democratic. One of the main advantages of relying on the party disqualification mechanism is that it is rooted in constitutional text—namely, an eternity clause—that allows the Court to identify and protect the fundamental values of the state. This text signals which values the Knesset itself has deemed to be of foundational status.

Although Section 7A of Basic Law: The Knesset, which governs party disqualification, can theoretically be amended, in practice it operates with a kind of constitutional permanence unmatched by other mechanisms. Once extremist actors are prevented from entering the legislature through disqualification, there is no need to invalidate any constitutional amendments they might otherwise have introduced. When a democracy resorts to such mechanisms, it openly acknowledges that it is treading the fine line between democratic and non-democratic action—but it does so in the name of democratic self-defense. These are instruments of last resort. It is no surprise, then, that President Barak emphasized that reference to foundational principles as a basis for invalidating Basic Laws should occur only in the face of a threat to the core and minimal defining features of a Jewish and democratic state. This is no mere metaphor—it is, quite literally, a constitutional last resort.

Fifth, the Court may assert authority to review constitutional amendments by recognizing the Declaration of Independence as a constraint on the exercise of constituent power from the outset. President Barak advanced this path following his retirement. According to this approach, the Knesset enacted Basic Laws as part of the realization of the founding vision articulated by Israel’s founders and as a fulfillment of their commitment in the Declaration of Independence that Israel would adopt a constitution. The Declaration also outlines substantive limitations on the content of the constitution, requiring that it conform to the character of the state as Jewish while ensuring “complete equality of social and political rights to all its inhabitants irrespective of religion, race or gender; guaranteeing freedom of religion, conscience, language, education, and culture.” This path thus imposes limits not only on constitutional amendments but also on the initial act of constitutional adoption.

The difficulty with this approach lies in the historical record: the founding generation did not follow the constitutional trajectory envisioned in the Declaration, and in fact, deliberately departed from it. They chose not to adopt a constitution through a constituent assembly, but instead to enact Basic Laws incrementally, with their constitutional status deliberately left ambiguous during the interim period. For many years, the Supreme Court treated the Declaration of Independence not as a binding legal source in domestic law, but merely as an interpretive aid. Shortly after the state’s founding, the Court held that the Declaration had no constitutional or normative legal force and that it did not constitute grounds for invalidating or upholding legislation.

It is only in the 1992 Basic Laws that references to the Declaration appeared, stipulating that the protection of fundamental rights must be carried out “in the spirit of the principles” of the Declaration. Still, Yitzhak Rabin and the Shas party claimed in 1994 that they were unaware of this reference at the time of voting, and it was this clause that led Shas to leave Rabin’s coalition—despite its pivotal role in advancing the peace process.

What response tools remain for those who oppose judicial review of Basic Laws or their amendments? The power to annul a Basic Law or amendment is one of the legal system’s non-conventional weapons, as it empowers the judiciary to set limits on the substance of the constitution. If opponents of this judicial authority wield sufficient political power and the Court stands in their way, they may attempt to replace the constitution altogether to enable a new beginning. Alternatively, they may seek to gain control over the judicial appointments process and reshape the Court’s composition to secure the dominance of their legal views. Such control over judicial composition could also prevent future political opponents from reversing what they regard as foundational gains.

The authority to invalidate Basic Laws is thus an extraordinary power that risks escalating constitutional dialogue between political actors into extreme confrontations. Every judicial move may trigger a counter-move. These are not merely theoretical dangers; they are materializing before our eyes in democracies around the world.

There is no shortage of legal constructs available to justify the judicial power to annul a Basic Law or its amendment. This essay does not attempt to exhaust them. The critical question is not whether such doctrines exist, but whether their invocation serves our society’s broader goals. Have we reached the kind of extreme moment that justifies deploying this non-conventional legal weapon? It is worth devoting serious thought to whether a given case merits the use of this authority, just as much as to the legal pathway through which such annulment might occur.

Our experience with the Biennial Budget case illustrates this dilemma. While the Court unanimously viewed the case as appropriate for applying the “abuse of constituent power” doctrine, today the notion of a biennial budget no longer provokes concern. In fact, Israel was plunged into political crisis in 2020 due to the Knesset’s refusal to adopt a biennial budget. Elsewhere, I have explained why—even though I was among the first to criticize the biennial budget mechanism and its adoption outside the Knesset—I did not believe that this case warranted the invocation of foundational constitutional principles.

Accordingly, with respect to the current cases pending before the Court, we must ask whether the desired legal outcomes can be achieved through alternative means—ones that do not require us, as a society, to escalate the civil struggle over the identity of the state.

Suggested Citation:

Judgment Day Weapon: The Pros and Cons of the Different Paths available to Judicially Invalidate a Basic Law, ICON-S-IL Blog, November 22, 2020.