On Misuse of Constituent Authority and the Unconstitutional Constitutional Amendment

---

To access the full article in Hebrew, please click here

In The Academic Center for Law and Business decision, the Israeli Supreme Court addressed for the second time the constitutionality of a Basic Law enacted in the form of a temporary provision (hora’at sha’a), concerning the biennial budget. This legislation, Basic Law: The State Budget for the Years 2017 and 2018 (Special Provisions) (Temporary Provision), originated during the global financial crisis of 2008–2009. Although the Knesset noted that only Bahrain used a biennial budget at the time, it chose to adopt this mechanism in the hope that it would improve the state’s ability to prepare for the economic downturn. The underlying assumption was that a two-year fiscal plan would provide greater economic stability than the previously used annual budget.

While the Basic Law was initially enacted as a temporary measure, it was renewed five times—each time under a different justification. The Knesset continued to employ this tool even after it became evident that the biennial budget led to substantial deficits and failed to contribute to economic stability.

In the earlier Bar-On case, the first time this Basic Law came under judicial scrutiny, the Court refrained from invalidating it. However, in The Academic Center for Law and Business ruling, the Court issued a "notice of invalidity." While the Court did not formally strike down the law—citing concerns about its potential impact on the economy—it warned that it would not hesitate to invalidate any future renewal of the law. The Knesset was thus cautioned against its re-enactment.

Justice Elyakim Rubinstein, writing for the majority, found that this Basic Law demonstrated a degradation of the Knesset’s role as a constituent authority. The enactment or amendment of Basic Laws through temporary provisions, he argued, is inappropriate, as it contradicts the essence of Basic Laws as the enduring constitutional framework of the state. The Court left undecided the question of whether a permanent Basic Law establishing a biennial budget (as opposed to a temporary provision) would withstand judicial review.

The primary concern the Court identified with a biennial budget was its erosion of the Knesset’s oversight power in a parliamentary system. In such systems, the executive is chosen by and derives its legitimacy from the legislature through a vote of confidence. The annual budget is a central tool through which the legislature continuously reviews and expresses confidence in the executive. The failure to pass an annual budget typically triggers new elections, as it signifies the loss of legislative confidence in the government.

The Court preferred to apply the doctrine of “abuse of constituent authority” rather than the doctrine of the “unconstitutional constitutional amendment.” It viewed the latter as a more intrusive form of judicial intervention into the Knesset’s constituent power and thus more difficult for the Court to apply. While the two doctrines may appear similar, the Court distinguished them as follows: the "abuse of constituent authority" doctrine concerns procedural deficiencies—namely, that although a law is labeled as a Basic Law, it does not merit that title due to the manner of its enactment. By contrast, the "unconstitutional constitutional amendment" doctrine pertains to substantive content that is incompatible with the fundamental values of the constitutional order. Through this distinction, the Court sought to develop a normative procedural framework for enacting Basic Laws, even in the absence of such procedures prior to the enactment of Basic Law: Legislation.

I wish to offer four comments on the Academic Center for Law and Business judgment.

First, the Court held that the procedure of enacting a Basic Law as a temporary provision constituted an "abuse of constituent power." However, it remains unclear what superior procedure the Court sought to encourage through the enactment of a permanent Basic Law as opposed to a temporary one. After all, Basic Laws in Israel are enacted in precisely the same legislative process as ordinary statutes (and only a minority of them are entrenched). Similarly, temporary provisions are enacted through the same process. One could argue the opposite: precisely because the biennial budget was enacted as a temporary provision, it prompted greater scrutiny. Each iteration of the temporary provision applied for two years only, thus requiring the legislature to actively reconsider whether it wished to deviate from the parliamentary norm of annual budgets. It also promoted greater accountability: the legislature could not rely on a default presumption of continuity. This constitutional dialogue highlights the divergent approaches of the Knesset and the Court toward Basic Laws. The Knesset views Basic Laws primarily as a matter of form and label, whereas the Court seeks to strengthen their status as a formal constitution and "compel" the Knesset to treat them with distinct procedural gravity.

Second, in Academic Center for Law and Business, the Court noted that the doctrine of the "unconstitutional constitutional amendment" had not yet been adopted or applied explicitly in Israeli law. The Court appeared hesitant to "invent" such a doctrine, observing that in the absence of a comprehensive written constitution, it would be difficult to assess whether a Basic Law contravened the constitutional structure as a whole. In my view, however, the Court need not have invented the doctrine—it already has a constitutional text that anchors it: Section 7A of Basic Law: The Knesset, which authorizes the disqualification of political parties. Indeed, if there is a set of overriding constitutional principles in Israel, they are the Jewish and democratic character of the state, as codified in Section 7A. Furthermore, the Yardordecision can be interpreted as an early application of the unconstitutional amendment doctrine, even if it predated Israel’s constitutional revolution.

Why, then, can we say that these two tools—party disqualification and the unconstitutional amendment doctrine—are two sides of the same coin? Disqualification of political parties is the front shield for fundamental constitutional principles. If members of a party that threatens those principles are barred from entering the legislature, they cannot initiate unconstitutional amendments. Generally, constitutional amendments require the joint approval of both the legislature and the people. If the state fails to prevent existential threats from gaining legislative power, it retains a rear shield—the ability to strike down an unconstitutional constitutional amendment. Both tools belong to the same constitutional toolbox and operate at different stages of defense.

This claim rests on theory, history, and methodology. Theoretically, both mechanisms embody the idea that democracy must not be suicidal—it must defend itself against actors who seek to use democratic tools to dismantle democracy from within. Historically, both doctrines gained traction after World War II as part of the global response to Nazism and the horrors of war. Methodologically, although Section 7A is not formally entrenched, it is functionally more entrenched than any formal entrenchment imaginable: if those who pose a threat to constitutional principles cannot enter the legislature, they cannot alter those principles from within.

Both mechanisms raise similar democratic challenges. It is often assumed that the rhetoric of "militant democracy" serves to empower the state beyond its usual constitutional boundaries. But that same rhetoric also constrains it. A legal system that justifies the use of such tools in the name of democratic self-defense simultaneously acknowledges that it is operating on the edge of democratic legitimacy. For that reason, both tools must be treated as last-resort measures, employed only in exceptional circumstances and with great caution.

Third, although the Court grounded its intervention in Basic Law: The State Budget on the fact that it was enacted as a temporary provision, it is evident from the judgment that the Court objected to the substance of the law as well. However, the Court failed to caution itself against intervening in budgetary legislation on precisely those same grounds. The fact that the case involved the state budget has implications not only for the relationship between the legislature and the executive, but also for the relationship between the judiciary and the elected branches. In a democratic system, the budget is the principal instrument through which elected officials translate the public mandate into actionable policy. Comparative experience teaches that non-elected bodies should exercise great restraint in intervening in budgetary legislation enacted by democratically elected bodies. For example, in the early twentieth century, the House of Lords vetoed a budget bill as a second legislative chamber—at a time when it served both as a court and as a legislative body. Its intervention triggered two general elections in 1910: the first determined the fate of the budget, and the second led to a permanent curtailment of the Lords’ veto powers.

Fourth, the Court chose to base its intervention in Basic Law: The State Budget on the doctrine of “abuse of constituent power,” which it viewed as less problematic than the doctrine of the “unconstitutional constitutional amendment.” Yet the opposite may be true: it is arguably more problematic for a court to intervene at the stage of constitutional creation under the guise of abuse of constituent authority than to intervene in constitutional amendment, which, according to many theorists, is a derivative rather than original power. The doctrine of unconstitutional constitutional amendment is far more common globally than doctrines authorizing judicial intervention in the initial creation of constitutional provisions.

In conclusion, it is highly doubtful whether the Court should have invalidated Basic Law: The State Budget under either doctrine—whether through the lens of the “unconstitutional constitutional amendment” or through “abuse of constituent power.” Discomfort with a Basic Law’s content does not necessarily justify judicial nullification. The Basic Law did not eliminate the Knesset’s authority to express no confidence in the government. When the government must pass an annual budget, it requires a majority of 61 members of Knesset to avoid triggering elections under Basic Law: The Knesset. Likewise, a vote of no confidence initiated by the opposition must also secure 61 votes to bring down the government. Thus, the practical difference between a biennial budget and a vote of no confidence often hinges on a single vote. Legislative frameworks frequently shift the threshold for securing a majority. It is questionable whether the foundational values of Israeli society depend on so fine a margin, as long as the mechanism of no confidence remains intact.

Suggested Citation:

On Misuse of Constituent Authority and the Unconstitutional Constitutional Amendment, ICON-S-IL Blog, October 6, 2019.