Introduction

The Israeli case presents a peculiar situation when it comes to unamendability. Israel does not have a full and formal constitution, but rather a number of Basic Laws that the Supreme Court has declared as having constitutional status.

M. Masri (&)

The City Law School, City, University of London, London, UK

e-mail: mazen.masri.1@city.ac.uk

© Springer International Publishing AG, part of Springer Nature 2018 169

R. Albert and B. E. Oder (eds.), An Unamendable Constitution?

Ius Gentium: Comparative Perspectives on Law and Justice 68, https://doi.org/10.1007/978-3-319-95141-6_7 merely a textual and stylistic requirement.^[689] This means that Basic Laws could be, and ordinarily are, amended in the same manner and form as ordinary legislation of the Knesset (the Israeli legislature). Nevertheless, the Supreme Court has stated— albeit obiter dicta—that certain aspects of the Basic Laws are unamendable, namely the definition of the state, as stated in some of the Basic Laws,^[690] as a Jewish and democratic state.^[691] In addition to unwritten unamendability, Basic Law: The Knesset, which has nothing to do with constitutional amendment, introduces unamendability through screening the composition of the Knesset, which is both the legislature and the constituent body. Israel, in this sense, presents a unique case: while it lacks a full and formal constitution or any specific amendment provisions, it has introduced two forms of unamendability: unwritten unamendability through the case law and con­cealed unamendability through other constitutional provisions. Unamendability in both cases relates only to the values of the state as reflected in the definition.

While the topic of unamendable constitutional provisions and principles is relatively new in Israeli constitutional law, the idea that certain constitutional principles or values are eternal and cannot be questioned—let alone changed—could be traced back to 1965 when the Supreme Court barred a political party from participating in the parliamentary elections for questioning certain ‘constitutional facts’ which included the Jewish character of the state and its eternality.^[692] Since then, and including the most recent discussions of the question of unamendability, the debates focused on the definition of the state and its central values as Jewish and democratic. To fully appreciate the scope, depth and significance of unamendability in the Israeli constitutional order, it should be examined in the context of the definition of the state: it is one manifestation of the significance of this definition and the tensions and contradictions that inhere in it. While the definition helps us understand the context of unamendability in the Israeli consti­tutional order, unamendability can also help cast light on some features of the Israeli constitutional order and the practical meaning of the definition.

In this chapter, I will explore the two forms of unamendability in Israel, their significance, scope and the functions they serve. I will also examine the implica­tions of the entrenchment of particular values such as the Jewish character of the state for Israeli constitutionalism, bearing in mind the composition of the population (which is only 75% Jewish with 20% being Palestinian Arab).^[693] The inquiry into this issue will proceed as follows: in next section, I will examine some aspects of unamendable constitutional provisions. I will draw on the existing debates in the literature to point out the importance of unamendable constitutional provisions highlighting their functional and expressive significance. I will then map out the different forms and layers of unamendability in the constitutional edifice. Section 3 will focus on what I call concealed unademnability.^[694] In Sect. 4, I explore unwritten unamendability. In Sect. 5, I will elaborate my arguments about the implications of unadmendability for the constitutional order and democracy, highlighting some of the unique aspects of unamendability in Israel. I will finish off with concluding remarks in Sect. 6.

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