Shouldn't We Seek the People's Consent? On the Nexus between the Procedures of Adoption and Amendment of Israel’s Constitution,

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Since the Basic Laws were recognized as the state’s constitution in the Bank Mizrahi case, the constitutional project has yet to be completed. Above all, the absence of a Basic Law: Legislation — intended to regulate the status of the constitution, including the process of its amendment — is most keenly felt.

This article analyzes the leading proposal for drafting a Basic Law: Legislation, as formulated by the Ne’eman Committee and largely adopted by the Knesset’s Constitution, Law and Justice Committee within the framework of an effort to establish a constitution by broad consensus. The drafters of the proposed constitution have not yet decided whether its text should be approved by the Knesset alone or whether a referendum will also be required. By contrast, with regard to constitutional amendments, they propose that the consent of the Knesset alone would suffice, through a procedure that would distinguish constitutional amendments from ordinary legislation.

Contrary to the prevailing perception in Israel, this article argues that the proposal for regulating the amendment process of the constitution cannot be examined in isolation from the question of how the constitution itself is to be adopted. Moreover, the article contends that the current proposal blends elements of two different models for grounding a constitution: components of the legislative sovereignty model and components of the popular sovereignty model. The disadvantages of this hybrid appear to outweigh its advantages.

The article suggests ways to achieve the coherence missing from the current draft, whether one chooses the legislative sovereignty model or the popular sovereignty model. Although both models are legitimate bases for a constitution, a constitution grounded in popular sovereignty would enable its foundation upon a hierarchy of powers rather than upon self-entrenchment. In addition, the popular sovereignty model is preferable if the goal is to establish a constitution based on broad consensus.

Suggested citation:

Shouldn't We Seek the People's Consent? On the Nexus between the Procedures of Adoption and Amendment of Israel’s Constitution, 10 Mishpat U’Memshal (Haifa U L Rev) 449, 449-487 (2007) [Hebrew].