A Brief History of Israel’s Quest for a Bill of Rights

We begin with a shorthand, standard explanation of why, to this day, Israel does not have a unitary, formal, comprehensive, human rights-upholding, US-like constitution.^[436]

The State of Israel was founded following three decades of British Manda­tory rule over Palestine.

It did not take long to realise that the Israeli Constituent Assembly baulked at the task of writing a constitution for the State of Israel. Soon after its inaugural convention, the Assembly made known its refusal to write a unified document comprising the constitution of the newborn state by proclaiming itself a ‘regular’ parliament of Israel (a ‘regular’ Knesset), rather than the constitutive, idiosyncratic Constituent Assembly of the State.^[440] Further, in 1950, it went for a new course of action with respect to the drafting of the state’s constitution.

The First Knesset - again, originally known as the Constituent Assembly - essentially sufficed itself with adopting the Harari Resolution, failing to enact any basic law. It took the Knesset an additional eight years to actually embark on the road charted in the Harari Resolution. Only in 1958 did the Knesset adopt the first basic law - Basic Law: The Knesset. Subsequently, in a protracted progression, a total of nine basic laws were put on the books from 1958 up until 1988.^[442] What united this first string of constitutional legislation was its distinctly institutional character. The nine basic laws focused on the three major branches of govern­ment and were mostly confined to these and other state institutions, such as the President of the State, and the State's General Comptroller.

How were basic law treated by the courts? Before the Revolution, Israeli consti­tutional jurisprudence had a clear dominant orientation: the British-Diceyan framework (or the Westminster model).^[443] The fulcrum of the Diceyan orthodoxy rested on the supremacy of parliament. As parliament reigned supreme, there was no place for a formal constitution restricting its powers. Nor was there room for judicial meddling in the business of parliament. Therefore, while British courts could develop human rights (and gained great fame for so doing), they were allowed to do so only between the cracks of parliamentary legislation.^[444] Likewise in Israel, where as a rule (although with a limited exception), pre-Revolution courts did certainly not pass judgment on legislative acts of the Knesset.^[445] Just as impor­tant was the role taken by Israeli courts, under the dominance of the Supreme Court, in constituting a judicial bill of rights in a common law fashion.^[446] Still, as part of the orthodox doctrine, there was a clear limit to the Court's frolicking with the development of an Israeli common law of human rights: legislative edicts.

Yet, also in this context, Israel had its complexities, for Israeli parliaments occasionally challenged Dicey. First, as noted, several Knessets adopted a series of ‘basic laws’, thus seemingly introducing a pyramidal structure of legal norms in which some laws were normatively superior to other, ordinary forms of legislation. However, it must be noted at once that, prior to the Constitutional Revolution, the Court was adamant that as a rule, basic laws were just like any other laws.^[448] There was an exception to that rule, which concerned the next, second Knesset's contra- Dicey step. Occasionally, the Knesset included entrenched provisions in basic laws, whose contravention required the support of a special majority of Knesset Members.^[449] In so doing, the Knesset appeared to disrupt the Diceyan model’s article of faith that the plenary power of the current parliament could not be checked - surely, not by courts, and not even by pervious parliaments. However, in the 1969 landmark case of Bergman v Minister of Finance, the Supreme Court ruled that formally entrenched provisions would be biding upon later Knessets, as long as the Knesset decided to leave them in place.^[450]

The resultant constitutional framework, going both with and against the grain of Dicey, was convoluted. More troubling to many, before and after Bergman, was the lingering conviction that the Israeli constitutional framework, which to a large extent stayed in the rut of its founding moment, was fundamentally defi­cient. Indeed, laments for Israel’s lack of a comprehensive (formal) constitution also persisted as the list of (‘institutional’) basic laws grew longer. Notably, the absence of two items from the unfolding list was steadfastly and increasingly noted along the way: one dealing with fundamental human rights, and the other laying out the procedure for the adoption and amendment of basic laws, which were - and are - enacted just like any other legislation, as well as setting the terms for judicial review of legislation based on them.^[451] However, this perception of the founding moment’s legacy and its constitutional offspring was never accepted across the board.

According to the first camp, the 1950s certainly left a mark of Cain on Israeli constitutionalism.^[452] And, to many, Israel’s exceptionalism in the field of consti­tutional law, throughout the bulk of its history, served as a painful reminder of that mark.^[453] Hence, according to members of the Israeli pro-Constitution camp, even if the founding generation of Israelis had good reasons to disown its constitutional undertaking, due to security and economic considerations, they had still condemned Israelis to live in a profoundly flawed legal system.^[454] Members of the latter camp were obviously emboldened by the fact that over time, Dicey was increasingly challenged not only in Israel, of course. Most tellingly, even its moth­erland cast aside its shibboleth and introduced its version of judicial review of legislation with the closing of the twentieth century, thus finally succumbing to the global, post-Second World War trend of adopting US-style constitutionalism.^[455]

Still, not all Israelis were willing to embrace the US constitutional tradition, not even in the wake of Britain's about-face. Notably, Chief Justice Moshe Landau remained a stanch supporter of the British model throughout.^[456] Landau persisted in his opposition even as additional (‘institutional') basic laws were enacted and as the terms of the debate narrowed down, centring on the desirability of providing the state with a formal bill of rights to be judicially guarded.^[457] Landau (who retired from the bench in 1982) kept his running quarrel with the Americanised version of constitutionalism before and after the Israeli Constitutional Revolution. He and others raised the spectre of a politicised judiciary should it be drawn into polemics concerning controversial matters of principle and personal faith.^[458] According to this approach, human rights legislation is fraught with such divisive, toxic issues.

United Mizrachi Bank evidently stands for a contrary approach. It made it abundantly clear that, by the 1990s, the Court unabashedly joined those calling for placing constitutional checks on the Knesset and a departure from the British orthodoxy.^[460] It seems that with the Court’s new credo came a greater willingness on its part to publicly depict the pre-revolutionary age as flawed.^[461] To the justices and scholars subscribing to this vision of the 1950s, the dramatic events of 1992-95 were long overdue. Only once the Revolution took place were key fundamentals of a true liberal-democratic constitutional order finally installed on Israeli soil. Signif­icantly, under such a progressive rendition of the history of Israel constitutional law, the old Court's efforts to put in place the essentials of a liberal-democratic human rights regime - commendable as they were - could not have been anything other than a stepping stone - essential as it was - towards a more complete consti­tutional arrangement.^[462] Finally, on this understanding, only with the Revolution could the Court, unencumbered by Dicey’s orthodoxy, finally lend a hand where the old Court could not.^[463]

III.