Unwritten Unamendability: Constituent Power and Its Limits
Even though the barrier presented by Basic Law: The Knesset is a significant form of entrenchment, especially when added to the near impossibility of achieving a majority for a constitutional amendment that would change the constitutional definition, the Supreme Court and academics have weighed in on the question of the limits of constitutional amendments.
The Supreme Court has essentially adopted an unwritten unamendability rule regarding the definition of the state.It has been widely accepted, since the Bank Mizrahi decision in 1995, that the Knesset, representing the people, can exercise constituent power and adopt constitutional norms in the form of Basic Laws. The Court’s confirmation of the Knesset’s constituent power settled the discussion on the question of the constitutional status of the Basic Laws, but it raised the question of the limits of the power of the Knesset as a constituent body. This question was discussed in the academic literature before it was addressed by the Supreme Court, and the discussions expressed a clear inclination in favour of accepting limits on constituent power. Three views are of relevance here. When former Chief Justice Barak was at the early stages of developing his ‘two hats’ theory, he suggested that as a constituent body the Knesset can bind itself.[744] Regarding the particular question of unamendability, he did not express a clear position, but raised this issue by way of rhetorical questions, as he did in La 'or Movement case,[745] or by seemingly neutral reference to the Yerdor decision and the decision of the Supreme Court of India in Kesavananda Bharati v. State of Kerala, and German cases stating that even the constitutional order as a whole has to conform to certain constitutional values, as he did in Bank Mizrahi and in his extra-judicial writing.[746] Later on, and as will be discussed below, Barak adopted a clearer position: the power of the Knesset as a constituent body is limited by the fundamental values of the state as Jewish and democratic.
Claude Klein, influenced by continental European constitutional theories, distinguished between original constituent power (pouvoir constituent orig- inaire) and derived constituent power (pouvoir constituent institute).[747] Applying this approach to Israel, Klein argued that when the Knesset enacts a new Basic Law dealing with a new issue, it exercises original constituent power, and when it amends an existing Basic Law, it exercises derived constituent power—or amending power. The latter form of constituent power is limited in its scope compared to the former. Ariel Bendor adopted the original/amending distinction, but applied it differently: he argued that only the People’s Council of 1948 (the representative body that represented the Jewish community in Palestine on the eve of the creation of the state), which adopted the Declaration of the Establishment of the State, is the body that can exercise original constituent power.[748] When the Knesset exercises constituent power, it only exercises derived constituent power, and this power is limited by the values of the Declaration, mainly, the Jewish character and the democratic mode of governance.It was only a matter of time until the Supreme Court weighed in on the matter. While none of the cases that reached the Supreme Court required a positive determination on this issue, the Supreme Court did address it a number of times. The discussions, almost all of them obiter dicta and incidental to the matters discussed, reflect an inclination among the Justices that the Knesset is not omnipotent when acting in its constituent capacity, and that there are some principles that limit its powers. The most pronounced discussion of this issue was in the case of The Movement for the Quality of Governance in Israel v. The Knesset.[749] In this case, the Supreme Court upheld, albeit reluctantly, the constitutionality of a law that deferred mandatory military service for ultra-orthodox yeshiva students.[750] This law, known also as the ‘Tal law’, was meant to regulate the military service of ultra-orthodox students who were exempt from such service since the creation of the state.
In practice, deferral meant exemption from service. Since this exemption is not granted to other sectors of (the Jewish) society, the law was challenged for violating equality. The majority in the Supreme Court found that there is evidence of infringement on equality but they upheld its constitutionality. More interesting for our purposes was the debate between then Chief Justice Aharon Barak and the lone dissenter, his deputy then, Michel Chechin.Deputy Chief Justice Chechin relied on social contract theory in his dissenting opinion which held that the law was unconstitutional. He asserted that all states are based on some foundational social contract.[751] Some of the contents of this contract are reflected in the constitution or in legislation, but others, despite their importance, are not. But this does not mean that they are not basic values of the legal system. These basic values could be summoned to directly dictate certain outcomes during extraordinary situations.[752] Chechin viewed the exemption from service as violating three basics: the Jewish character, democracy and equality.[753] He linked the Jewishness of the state to the security threats it faces: without a strong army, there can be no Jewish state. A collective exemption from military service, therefore, is a violation of the ‘Jewish’ values as well as a violation of equality.
Barak agreed in principle but disapproved of going as far as the social contract and the basic values before exhausting other avenues of constitutional examination. Barak’s main critique was that the examination of the constitutionality of legislation should proceed according to the Basic Laws by examining the protected rights and the ‘limitation clauses’ which provide the proportionality tests. The latter include an assessment of the impugned legislation against the basic values of the system.[754] But as a matter of principle, Barak agreed that
‘there is room for the view that a statute or a Basic Law that negates the character of Israel as a Jewish and democratic state is not constitutional.
The people, the sovereign, did not authorize our Knesset to do so. The Knesset was authorized to act within the framework of the basic principles of the regime. It was not authorized to annul them. This case before us does not fall within that narrow frame’.[755]The fact that this discussion was obiter dicta does not detract from its importance. Both the majority and the minority agreed on the principle that some constitutional amendments may be unconstitutional and that the Court has the power to declare them invalid. This position found more support in later case law. In Bar-On v The Knesset, Barak’s successor as Chief Justice, Dorit Beinisch, expressed her support for the doctrine of unconstitutional constitutional amendment and was of the view that ‘the courts in Israel have recognized the existence of principles that cannot be changed. Our Basic Laws have also laid down the central constitutional principle—and it is doubtful that it could be changed—that relates to the Jewish and democratic character of the state’.[756] Beinisch, citing an academic article by Barak,[757] qualified her position explaining that the situation in Israel is not fully ripe for the doctrine’s application in a broad manner; since the constitution is still evolving, the doctrine should only be applied in a narrow manner and be limited to the Jewish and democratic character of the state.
In his later extra-judicial writing, Barak anchored this position in the Declaration of the Establishment of the State of Israel. The Declaration ‘authorized’ the adoption of a constitution, and as the authorizing text, it sets the Jewish and democratic values as the limits of this authorization.[758] Even though the Declaration does not mention the word democracy, Barak read it into the Declaration. This kind of anchoring distinguishes unwritten unamendability in this case from other forms of unwritten unamendability. Richard Albert suggests a theory that derives unwritten unamendability from constitutional convention.[759] Applying this understanding to Canada and Japan, he derives unwritten unamendability from political norms that are based on customs or practices that political actors have acquiesced with, and that are not judicially enforceable.
In the case of Israel, however, unwritten unamendability has stronger roots that go beyond constitutional convention that develops over time. More importantly, the Jewish and democratic values of the state are enforceable in courts and are not necessarily seen as politically agreed on by all political actors. Palestinians are generally opposed to the ‘Jewish’ values as central constitutional values, for these reflect Zionist principles that give preference to the Jewish majority. Many conservative, especially religious political parties, are also opposed to the ‘democratic’ elements of these values.Unwritten unamendability here is an added and more powerful layer of protection that could protect the Jewish and democratic values in the event that the first layer of protection—Basic Law: The Knesset-fails in its function to screen in advance the composition of the Knesset. Unwritten unamendability also protects section 7A of the Basic Law from amendment. The section is not entrenched, and could, in theory, be amended with a simple majority. However, an amendment repealing the section, or removing the power to disqualify parties or individuals for the ‘negation of the existence of the State of Israel as a Jewish and democratic state’, could arguably be declared an unconstitutional amendment for it could be seen as a violation of the values as reflected by the Jewish and democratic definition.
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