Israeli debate and looking to Asia
On July 19, 2018, the Knesset (Israeli parliament) constituted The Basic Law: Israel - The Nation State of the Jewish People. This Basic Law was meant to be another “chapter” in the Israeli constitution - which is still in the making in light of the incremental constitution-making process - dealing with the nation's identity.[1083] It establishes that Israel is the “national home of the Jewish people,” and deals with state symbols like the flag and national anthem, the official language, national holidays, the Sabbath, Jerusalem as the capital, etc.[1084]
Supporters of the Basic Law argue that it is mainly declarative and does not change the existing state of affairs.
Opponents of the Basic Law claim that because it mentions neither the democratic character of the state nor the principle of equality, it alienates the non-Jewish minority in the state and aims to shift the balance in the “Jewish and Democratic” character of the state towards the former. Moreover, the provisions regarding the “exclusive” right to self-determination of the Jewish people (Art. 2), the decrease of the status of the Arab language from an official language to “a special status,” and the provision according to which “The state views the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation” (Art. 7) are allegedly discriminatory towards non-Jews. On this basis, various petitions were submitted to the High Court of Justice (HCJ) against the Basic Law, and the HCJ held hearings before an extended bench of 11 judges.[1085]The challenges against the “constitutionality” of the Basic Law brought to the fore the question of whether the High Court of Justice possesses the power to review basic laws, which carry a constitutional status. One of the main speakers against the authority of the Court was the then-Minister of Justice Ayelet Shaked, who said that the arguments supporting the court's authority to review basic laws are dangerous and could bring down the fundamental system of government.
Supporters of judicial activism, she claimed, want Israel to be like Bangladesh, Colombia, Honduras, and India, where courts have the authority to repeal constitutional laws. “With all due respect, Israel has nothing to learn from them. Even as a joke, this has gone too far,” Shaked said.[1086] She also warned that if the High Court of Justice would strike down the highly contested Basic Law, this would be an “earthquake” and cause a war between the branches.[1087] Her approach was supported by various public thinkers.[1088] In contrast, others, such as the publisher of Haaretz newspaper, Amos Schocken, claimed that “the Basic Law on Israel as the Nation-State of the Jewish People must be declared an unconstitutional constitutional amendment that contravenes the basic values of the system, and it must be annulled.”[1089] Thus, the question of the court's authority to review basic laws and the applicability of the Indian BSD in Israel, is at the center of a heated public and academic debate. This discourse is far from being purely academic; it has clear dramatic practical implications, as the court is facing what seems like one of the most important judicial cases in its history.
Part of the debate in Israel surrounds the question whether the Indian BSD should be imported into Israel, and whether it is suitable for Israel to adopt the Indian jurisprudence on implied limits on the amendment power. India, as is well known, has been a great source of inspiration to the world through its BSD. As Dieter Conrad - “the man behind the ‘basic structure' doctrine”[1090] - noted, “in this free trade of constitutional ideas the Indian Supreme Court has come to play the role of an exporter.”[1091]
The famous Indian jurisprudence on BSD also caught the eye of Aharon Barak, former president (Chief Justice) of the Israeli Supreme Court. It was reported that in 2004, when Aharon Barak was the president of the Israeli Supreme Court, he had a formal visit to India.
After this visit, which Barak describes as a “dream coming true,” Chief Justice Barak stated that he was “deeply impressed with the approach of the Indian Supreme Court that positioned various features of the Indian Constitution above constitutional amendments by Parliament.”[1092] The famous Kesavananda case was cited by President Barak in a 2006 judicial decision, concerning the relationship between basic laws and basic constitutional principles,[1093] although in that case President Barak opined that there was no need to decide this question. Kesavananda was also cited by the Israeli Supreme Court in a more recent decision in which the Court issued a nullification notice to a temporary Basic Law that changed the annual budget rule to biennial one, for the fifth time in a row, by applying a doctrine of “misuse of constituent power.”[1094]Aharon Barak also cites the Indian experience in his scholarly articles.[1095] However, albeit looking at the Indian jurisprudence, Barak also explains the difficulty in applying the Indian BSD in Israel. In an academic article from 2011 (five years after his retirement), Barak explored the question of unconstitutional constitutional amendments in Israel, drawing from comparative experience. He argued that the Knesset's constituent authority is not unlimited. It is limited by supra-constitutional principles, yet these limitations are narrower than those accepted in comparative constitutional law because the constitution-making process in Israel is still on-going:
Under the comprehensive and full meaning of this doctrine as it is accepted in comparative law, this question indeed has no place in Israel. The reason for this is that the concept of an “amendment” to the constitution is itself
Why there? 287 problematic in Israel. The constitutional project in Israel is a work in progress. The mission has not yet been completed. The “whole” has not yet been completed, and in any case the arrangements for amending it have not yet been developed.
In Israel, we have a process of enacting basic laws. From time to time, a new basic law is enacted in an area in which there was no previous basic law. From time to time, an amendment to an existing basic law is performed by enacting an amending basic law.. In my opinion, the Knesset is not omnipotent as regards the establishment of a new basic law or the amendment of an existing basic law. In both cases, the Knesset, as the constitutional assembly, must act within the framework of fundamental principles and fundamental values of the constitutional structure. It must act within the framework of the principle-based standards upon which Israel's Declaration of Independence and the entire constitutional project are based. However, in Israel we are in the middle of a constitutional process, based on basic laws, which has not yet been completed. Even if one accepts the basic approach that there are restrictions on the establishment of a constitution in Israel or on the power to amend it, my opinion is that, as long as the project of enacting basic laws has not yet been completed, these restrictions operate in a narrower framework than is customary in comparative law.[1096]Put differently, it would be perplexing to adopt a basic structure doctrine C la Kesavananda, before there is a full structure of the constitution.[1097] This notion was adopted by the Chief Justice of the Supreme Court, Esther Hayut, in a judgment regarding a formal constitutional amendment to the Basic Law regulating the Parliament - Basic Law: the Knesset, and amendment which allows the removal from the legislature of lawmakers whose actions constitute incitement to racism or support for an armed struggle against the state of Israel. Writing the court's opinion, Chief Justice Hayut wrote that although the amendment “seriously infringes basic rights,” “it cannot be said that it contradicts the core of state's democratic identity.” Citing Prof. Barak, President Hayut wrote that:
For now, and considering the unfinished stage in which the Israeli constitutional enterprise is at, and especially as there are no established procedures for enacting and amending basic laws, there is a great difficulty in adopting a comprehensive doctrine concerning unconstitutional constitutional amendments such as we find in comparative law.
It is worthy that the doctrine to beapplied in this context in the Israel law ought to be set upon the completion of the basic law enterprise towards a full constitution.[1098]
This statement is not a rejection of the idea of implied limits on the Knesset's constituent power; it is merely that the court did not see the need to examine the complex applicability of implied limits and left it undecided for that time.[1099]
Indeed, it may very well be that in the upcoming judicial decision regarding the Nation State Basic Law, the question of such applicability may be answered. Indeed, throughout the debate concerning the Nation State Basic Law, references to the Indian BSD have made public appearances, when those advocating for the court's ability to review basic laws rely, among others, on the Indian experience - a comparison that those objecting to the Court's authority to review basic laws criticize as inappropriate.[1100]
Barak's notion that a comprehensive doctrine as exists in India is inapplicable in Israel seems cogent. As Andrew Harding notes regarding the applicability of the doctrine in Singapore:
There was no constitutional moment at which the constitution was entrenched, and in fact it is still referred to as a work in progress. A necessary premise here, in my view, is that for the BSD to apply there must be such a moment.. if, in the future, the people of Singapore were to “seal the deal” by appending their assent via some public-participation process or other mechanism, then the BSD might well be applicable.[1101]
Supporters of the BSD claim that the parliament, created by the constitution, cannot destroy the very constitution from which it derives its existence. However, Harding claims, this argument “has no application in a case where parliament itself is the constitution-maker.”[1102] A similar argument can certainly be made regarding the Israeli on-going constitution-making process.
In contrast, however, this does not necessarily mean that the Knesset has an unlimited constituent power. Even though the constitution-making process is still on-going, this does not mean that there are no underlying basic principles - just as a building that is still in construction rests on certain foundational stones.[1103] Such core basic principles, which form the entire constitutional order, may be deemed as posing limits to constitutional change. In the recent judgment on the Nation State Basic Law, President Hayut wrote, “indeed, our constitutional structure is incomplete and it is quite possible that floors and branches will be added along the way, but these two pillars - the Jewish pillar and the democratic pillar - have long been placed in it. Denial of any of them leads to the collapse of the entire structure.”
More recently, Barak developed a theory on the limits of the Knesset's constituent power. According to him, the interpretation of the Declaration of Independence establishes the “genetic code” of the Constituent Assembly, which is intended to establish a constitution that will realize the vision of the people and its creed. It is unauthorized to act contrary to the vision. Accordingly, even if one accepts the view that the Knesset possess constituent power, it is unauthorized to nullify the character of the state of Israel as a Jewish and democratic state.[1104]
This focus on the Declaration of Independence is intriguing, from an Indian perspective, as it seems that in the Israeli context, the Declaration of Independence is playing a somewhat similar role to that which the constitutional preamble plays in the Indian basic structure doctrine.[1105] If it is similar to a constitutional preamble, the Declaration of Independence provides clues to the Constitution's fundamental principles. This may support Barak's reliance on the Declaration of Independence. And in fact, it was suggested by Amnon Rubinstein and Liav Orgad that, when the Constitution is complete, the Declaration of Independence may function as the Preamble.[1106]
The move to a limited constituent power would be dramatic indeed, yet not unthinkable. Indian jurisprudence was initially rooted in the British tradition, thereby rejecting the notion of implicit unamendability. However, this approach drastically changed. From a Diceyian notion of parliamentary sovereignty, Indian jurisprudence shifted to a notion of a limited amendment power.[1107] But we have much to learn from other Asian countries, and from the Global South more generally, as in many aspects, the Israeli constitutional order resembles jurisdictions in the Global South rather than the Global North.[1108]
In the institutional conditions of Israel, as I have argued with Suzie Navot, implied limitations on constituent power are essential. Where the overly flexible legislative process is controlled by the government, and without a rigid constitution or political checks and balances, the only real balancing authority to the power of the majority is the Supreme Court. In Israel, the legislature holds a dual authority - legislative power and constituent power, with no procedural distinction. A Basic Law can be enacted without time delays and through an ordinary majority. And the Government de-facto controls the legislative process by strong coalition discipline. This composition causes the mingling of longer-term issues of constitutional planning with short-term interests of political power and raises the risk of misusing constituent power for short-term political interest or convenience. With a single chamber in the legislature, and the lack of procedural restrictions, the authority of the court to review basic laws is a central part of its ability to protect fundamental rights or the constitutional order.[1109]
This leads us to the next section, in which I aim to argue that there are some institutional features that can explain why the basic structure doctrine developed in the Asian countries: features that are also applicable to the Israeli case.
15.4