Concealed Unamendability
Constitutional amendment has never been a contested issue in Israel. Even now, when most commentators and the Supreme Court view the Basic Laws as having constitutional status, it is generally accepted that the project of adopting a full and formal constitution has not materialized yet.[716] Given the incompleteness of the project, and with one exception,[717] there are no express provisions that govern amendment procedures for Basic Laws.
The Supreme Court, however, has introduced a technical-textual requirement. In the Bank Mizrahi case (the case in which the Supreme Court confirmed the constitutional status of Basic Laws and declared them as a partial constitution), the leading opinion of then Chief Justice Barak laid down some rules regarding the amendment of Basic Laws.[718] Since the Basic Laws were to have a higher status than ordinary legislation, it was also decided—contrary to past practice—that Basic Laws could be amended by a Basic Law only. Explaining his ‘two hats’ theory, Barak asserted that the Knesset ‘wears’ two hats: under one hat it acts as a constituent body, and under the other it acts as a legislature. Wearing the constituent body hat, the Knesset can amend a Basic Law while exercising constituent power,[719] and not by using its legislative authority. As such, ‘ordinary’ legislation cannot amend ‘constitutional’ Basic Laws because of its inferiority in the normative hierarchy. But this judicially introduced requirement relates only to the title of the amending act. Apart from that, and subject to any special majority clauses,[720] there are no specific provisions that deal with the enactment or amendment of Basic Laws as such. The same rules and procedures that apply for ordinary legislation apply to Basic Laws. No special majority or special quorum are required, and indeed, as in the case of Basic Law: Freedom of Occupation, a handful of Members of Knesset (MK) could adopt or amend a Basic Law.While there are no formal unamendability provisions in any Basic Law, section 7A of Basic Law: The Knesset restricts the right to participate in parliamentary elections in a manner that makes certain constitutional amendments impossible. This provision, together with other instruments which also introduce similar barriers, make certain changes almost impossible as a matter of process. But it is not purely procedural. As will be discussed below, all of these entrenchment methods are open about the objective to protect the substantive values of ‘Jewish and democratic’. This kind of entrenchment is unique in that it does not specifically declare certain provisions or principles unamendable, has nothing to do with constitutional amendment rules, but still, in effect, introduces unamendability by making the prerequisites for the amendment of the entrenched values—a majority in the Knesset—virtually impossible. Its inclusion in a Basic Law bears resemblance to formal entrenchment. However, the fact that the relevant section has nothing to do with amendment rules makes this kind of unamendability difficult to identify. It is concealed: only after a careful examination of rules related to the elections, registration of parties and the internal procedures of the Knesset, only then, this concealed unamendability is possible to identify. This concealed unamendability did not always have proper anchorage in constitutional provisions. In fact, until 1985, it was only based on an amalgam of constitutional theories and principles that the Supreme Court used to justify its decision in the landmark Yerdor case.[721]
3.1 Unamendability in Other Name: The Yerdor Case
The idea that some constitutional principles are not to be changed or questioned even through democratic means was first adopted by the Supreme Court in 1965 in the Yerdor case. In this case, the Court confirmed the decision of the Central Elections Committee to bar a Palestinian political group from participating in parliamentary elections.[722] The group, known as ‘the Socialist List’, was affiliated with Al-Ard movement.
Al-Ard sought to organize the Palestinian minority in Israel along national lines. The movement viewed the Palestinians in Israel as part of a Palestinian collective and a broader Arab nation, and called for solving the conflict in a manner consistent with the right to self-determination of the Palestinian people. The state saw Al-Ard as a direct challenge to Zionism—the political ideology on which the state was founded—and as such, a serious threat to the state itself. Consequently, it systematically and consistently repressed Al-Ard and its members. The repression was so severe that the decision to participate in the elections was in some sense an attempt to seek refuge in the formalism of the law since all other methods of organizing were frustrated by the state. The group relied on the minimal formal eligibility requirements for standing in the elections and hoped to gain a seat in the Knesset, which, in their calculations, would have reduced the pressure on the members.[723]Despite the lack of any formal statutory authorization to do so, the Central Elections Committee blocked the candidacy of ‘the Socialist List’. This decision was upheld by the Supreme Court by a majority of two to one. The two majority Justices agreed that the decision of Central Elections Committee was lawful, but each provided his own reasoning. Then Chief Justice Agranat explained his decision by referring to constitutional ‘givens’ or ‘facts’ that cannot be questioned by the authorities of the state, and should be taken into consideration in the process of interpretation, especially interpretation of constitutional laws. These facts, Agranat wrote, include the fact that the state was created as a Jewish state, fulfilling the right to self-determination of the Jewish people, and that this state is eternal.[724] Agranat emphasized that a group whose political goal is ‘to undermine its [the state’s] very existence cannot, a priori, have the right to take part in the process of forming the will of the people and therefore cannot stand for election in the Knesset elections.’[725] Essentially, Agranat fused the Jewish character of the state with its very existence and its eternity, and declared any challenge to the Jewish character, even if indirect, as a threat to the state as a whole.
To justify his position, and the apparent contradiction with democracy, Agranat used the Weimar Republic and the American Civil War as examples of how democracy could be subverted by groups that rise to power democratically.The other member of the majority, Justice Sussman, agreed with Agranat, but also added his own reasoning which was based on natural law. He likened the state to a human, and since a human cannot agree to be killed, a state cannot agree to be destroyed. This reasoning, like Agranat’s, presumes that the state and the Jewish identity are inseparable. Borrowing a modified version of Germany’s post-war principle of ‘militant democracy’, Sussman introduced the idea of ‘defensive democracy’—a state should not allow subversive groups to undermine democracy by using democratic processes. The minority judge, Justice Chaim Cohen, adhered to the formalistic approach which was dominant at the time: he stated that absent explicit statutory authorisation, the Committee has no power to ban candidates.
The Yerdor ruling became one of the main constitutional principles in Israeli law. It signalled that in the direct confrontation between Zionism and the classic liberal conception of the rule of law, Zionism prevailed. Even though the majority tried to provide seemingly democratic justifications by using the idea of ‘defensive democracy’, the essence of the decision was that democracy is subordinate to the Jewish state. Not only is the Jewish character eternal and unchallengeable, any serious questioning of it will eventually mean losing the right to participate in the elections. Furthermore, the ruling also established some principles as having higher normative status with some commentators at the time arguing that the Court introduced a judge-made ‘supra-constitution’ and created a feeling of uncertainty about the constitutional structure.[726]
3.2 Formalizing Concealed Unamendability: Section 7A of Basic Law: The Knesset
The foundational principle introduced in Yerdor was incorporated into Basic Law: The Knesset.
In 1985, the Knesset enacted section 7A of Basic Law: The Knesset which gave the Central Elections Committee the power to ban the participation of any party in the elections if its goals and actions, expressly or by implication, include ‘the negation of the existence of the State of Israel as the state of the Jewish people’, the negation of its democratic character, and incitement to racism.[727] The section clarified the Yerdor rule by explicitly including the negation or rejection of Israel’s characterization as the state of the Jewish people as grounds for banning participation in the general elections. Until then, this was only implicit in the reasoning of Chief Justice Agranat in Yerdor. The section also added negation of democracy and incitement to racism as grounds for excluding a group from the electoral process as a response to the Court’s refusal to ban the participation of the extreme right-wing Jewish group Kach in 1984.[728] The grounds for disqualification in section 7A were also incorporated in section 4 of the Parties Law-1992, restricting the registration of political parties on the same grounds. The restrictions were further extended to elections for local and city councils through section 39 of the Local Authorities Law (Elections)-1965.Since its enactment in 1984, there have been numerous attempts to use section 7A in almost all elections for the Knesset. In most cases, the Central Elections Committee, which is comprised of representatives of political parties and headed by a Supreme Court Justice, approved the disqualification from participation in the elections. The Committee usually targets parties that represent Palestinian citizens or extreme right-wing parties. The opposite trend could be identified at the level of the Supreme Court which took a restrictive approach. It ruled that the interpretation of section 7A should be ‘specific, narrow and restricted’ and its application should be limited to the most extreme cases.[729] It also imposed a high evidentiary threshold.[730] Given the narrow interpretation and the high evidentiary threshold, it is rare for the Court to uphold the ban.
Virtually in all cases, other than the landmark 1965 Yerdor case, the Court allowed the candidacy to stand. In most cases, the decision was a split decision, and in all cases the Court did not spare words in expressing its disapproval of, and even contempt for the political ideas, statements or actions.While section 7A does not necessarily ban Palestinian citizens from the Knesset, it does seek to block the access of certain ideas that seek to challenge the status quo based on universal values. What the section does, to put it in the words of former Chief Justice Meir Shamgar, is to ‘screen, in advance, what the image of the Knesset and its elected members will be after the elections’.[731] Since the Knesset is the body that has the power to amend the constitution, the restrictions that section 7A imposes are also restrictions on the scope of amendment and change in the Israeli constitutional order. The restrictions, in effect, block the possibility of certain changes by blocking access to the Knesset. Sharon Weintal is right in describing section 7A as ‘an implicit eternity clause’.[732] Not only is it implicit, it is concealed in a provision that does not deal with constitutional amendments.
The central principle that section 7A renders unamendable is the definition of the state as Jewish and democratic. This definition is taken to reflect the core values and principles of the constitutional order. This is hardly surprising given that the state was formed by the Zionist movement for the exercise of self-determination of Jews, and that the Jewish character of the state has been taken for granted since its creation in 1948. The Declaration of the Establishment of the State of Israel emphasizes this character,[733] and so do other statutes and numerous Court decisions.[734] As the Supreme Court has highlighted repeatedly, ‘the raison d’etre of the state is being a Jewish state’.[735] But what does the phrase ‘Jewish and democratic’ mean? This has been addressed in a number Supreme Court decisions.[736] The Court provided a number of core characteristics for both parts of the definition. For the ‘democratic’ element, the Court stated that the minimal characteristics should include the principle of the sovereignty of the people and periodical elections, in addition to the preservation of the core of fundamental human rights.[737] On the other hand, the core characteristics for a minimalist definition of Israel as a Jewish state
have a Zionist perspective and a traditional perspective at the same time [...]. At their centre stands the right of every Jew to make aliya [Jewish immigration to Israel] to the State of Israel, that in Israel Jews constitute a majority; Hebrew is the main official language of the state, and its main holidays and symbols reflect the national emergence of the Jewish people, the heritage of Israel is a central component of the state’s religious and cultural heritage.[738]
This definition is not merely descriptive: it plays an important role in defining the polity, the public culture, immigration rights, state policies and the scope of protection of constitutional rights. It also mandates that Israel must have a Jewish majority. According to former Chief Justice Aharon Barak, the definition has a ‘normative constitutional status that is above the law’.[739] Its relevance encompasses the entire Israeli legal system. As Barak has put it, the values of Jewish and democratic are ‘standards for the interpretation of the purposes of all Basic Laws’.[740] Consistency with these values is seen as a condition to any restriction on human rights, whether those rights are explicitly protected by a Basic Law or not.
The definition also affects the interpretation of legal texts in general. Similarly, as discussed earlier, the definition also plays a major role in defining the scope of the right to political participation. The Supreme Court balances the consistent emphasis on the Jewish character by stating that it does not mean discrimination against non-Jews. The Court has ruled that Israel ‘is a Jewish state in which minorities live, including the Arab minority. Everyone who belongs to these minorities enjoys full equal rights’.[741] It also pointed out that ‘equality of rights between humans in Israel, whatever their religion or national belonging is, is derived from the values of the state as a Jewish and democratic state’.[742] While this commitment to equality is to be noted, the repeated emphasis on the Jewish character and essence, and the practical meaning of the definition, in reality translate into favourable treatment for Jews. It is, therefore, hard to reconcile this commitment to equality with the Jewish character and the rulings of the Supreme Court.[743]
3.3 Rules of Procedures of the Knesset
Concealed unamendability is not only limited to the laws and Basic Laws that are related to elections. The internal rules governing the work of the Knesset add more barriers to constitutional changes related to the Jewish character of the state. According to section 75(e) of the Rules of Procedure (formerly, section 134), ‘[a] private members’ bill shall be brought for the approval of the Knesset Presidium. The Knesset Presidium shall not approve a bill that in its opinion denies the existence of the State of Israel as the state of the Jewish People, or is racist in its essence.’ The Rules of Procedure also introduce general obligations to act in a manner consistent with the definition. A Member of the Knesset, according to the ‘General Principles’ section of the Rules, ‘shall fulfill his position out of loyalty to the fundamental principles of the State of Israel as a Jewish and democratic state’ [section 1A(1)]. Similar principles also apply to members of all-party parliamentary groups that promote certain issues or interest. According to section 138(g), such groups shall not be allowed to function if their goals or activities, explicitly or implicitly, include ‘the denial of the existence of the State of Israel as a Jewish and democratic State.’
While the Rules of Procedure are not on the same normative level as legislation or Basic Laws, they are, nonetheless, part of the broader constitutional order that sets the limits to what kind of legislation, including Basic Laws, can even be debated, let alone enacted. While these arrangements can be changed by a simple majority, the existence of a provision like section 75(e) functions as a further obstacle that would block any legislative proposal from being debated if it does not conform to the Jewishness of the state.
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