Basic Laws of Israel

The "Constitutional Revolution" and the development of judicial review

The Israeli constitution prior to 1992

In 1950 the First Knesset came to what was called the Harari Decision. Rather than draft a full constitution immediately, they would postpone the work, charging the Knesset's Constitution, Law, and Justice Committee with drafting the document piecemeal. Each chapter would be called a Basic Law, and when all had been written they would be compiled into a complete constitution.

Between 1958 and 1988 the Knesset passed nine Basic Laws, all of which pertained to the institutions of state.

The power of judicial review is not addressed in Basic Law: The Judiciary, or elsewhere in Israel’s Basic Laws. Prior to 1992, the Supreme Court, sitting as the High Court of Justice, rejected multiple opportunities to claim the power of judicial review. Just after Israel’s founding, in the 1948 Ziv case the Court ruled against interpreting Israel’s Declaration of Independence as the nation’s constitutional document, and in 1970, the Court reaffirmed this principle in the Rogozinsky case. In Rogozinsky, the Court went so far as to explicitly deny itself the right to judicial review of ordinary Knesset legislation.

However, near the same time as the Rogozinsky case, the Court began to indicate a different posture with regard to judicial review of entrenched Basic Laws. At the time, the only provision in the Basic Laws that was entrenched was section 4 of Basic Law: The Knesset, which required “general, national, direct, equal, secret, and proportional elections” for the Knesset, and required an absolute majority of 61 MKs to amend. In its 1969 Bergman decision, the Supreme Court implicitly assumed the power of substantive judicial review, invalidating a public financing law that denied public funds to political parties not represented in the previous Knesset on the grounds that the law violated section 4. The Court grounded its power to strike down the law in the fact that the Knesset had failed to pass it with the absolute majority required, in the process upholding the principle of entrenchment in Israeli constitutional law. While this created only a procedural requirement that the Knesset had to meet to enact the law—namely reaching an absolute majority when passing a law in conflict with it—it also demonstrated the Court’s willingness to determine whether Knesset legislation met the substantive requirements of Basic Laws.

However, the Court explicitly refused to endorse the principle of judicial review of all Knesset legislation, explicitly stating that it did not intend for the Bergman decision to address that point. It further reinforced this stance in its 1974 Negev decision, clarifying that the Court lacked the power of judicial review in cases where the standard for potential review was an unentrenched ordinary law or Basic Law.

The Constitutional Revolution of 1992–1995

In 1992 the Knesset passed the first two Basic Laws that related to human rights and to the basis of the Supreme Court's recently declared powers of judicial review. These are "Basic Law: Human Dignity and Liberty" and "Basic Law: Freedom of Occupation". Both Basic Laws contain clauses prohibiting the violation of the rights they enumerate, “except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” This limitations clause is contained in section 8 of Basic Law: Human Dignity and Freedom and section 4 of Basic Law: Freedom of Occupation.

These were passed by votes of 32–21 and 23–0 respectively, and Knesset debates indicate that many MKs were not aware that these laws pertained to the constitutional entrenchment of any rights nor that they affected the status of judicial review in Israel. However, Justice Aharon Barak, who would become President of the Supreme Court, explicitly declared that the passage of these Basic Laws had initiated a constitutional revolution in Israel. Barak argued that Basic Law: Freedom of Occupation, which was explicitly entrenched to require a 61 MK majority to amend under section 7, and Basic Law: Human Dignity and Freedom—which was not entrenched in the same way, but in Barak’s view required the Knesset to explicitly declare its intent to violate the law, in a similar manner to the Canadian Charter of Rights and Freedoms notwithstanding clause — created a set of generalities and conflicting principles in the Basic Laws, which meant that it fell to the judiciary to interpret and “[give] content to” those laws.

Barak’s declaration of a “constitutional revolution” presaged his majority opinion in the landmark 1995 Bank Mizrahi v. Migdal Cooperative Village case. Bank Mizrahi declared that due to the limitations clauses included in the 1992 Basic Laws, the Basic Laws now formed a written constitution that the courts had the power to uphold via judicial review. The more specific holding of Bank Mizrahi was that Knesset legislation that violates the limitations clauses of Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Freedom is void no matter what majority passed the law, rejecting its position in Bergman and elaborated in Negev that only constitutionally entrenched Basic Laws empowered the court to exercise judicial review.

The Court’s main reasoning was that the Knesset holds two distinct roles within the Israeli state depending on the type of legislation it is enacting. In addition to its position as the legislative branch, which it occupies when dealing with ordinary legislation, the Knesset acts as a constituent assembly empowered to write a formal constitution for Israel when passing Basic Laws, deriving this authority from the First Knesset’s Harari Decision to pass on the task of writing the constitution to the Second Knesset.

This marked a significant departure from the British system of parliamentary sovereignty that Israel inherited and practiced prior to the Constitutional Revolution, as it permitted a Knesset to bind its successors. Outgoing Supreme Court President Meir Shamgar’s concurring opinion in Bank Mizrahi did not recognize the Knesset’s role as a constituent assembly and instead argued that the Knesset had an explicit power of self-limitation even when acting in its legislative capacity, but this interpretive approach has not been cited in subsequent cases.

The cumulative impact of the Bank Mizrahi decision was that it established judicial review of ordinary Knesset legislation, significantly curbing the Knesset’s parliamentary supremacy, and according to some Israeli constitutional scholars, fully converted the Israeli constitution from an unwritten constitution to a formal, written constitution, albeit an incomplete one.

Impacts of the Constitutional Revolution on the structure of the Israeli state

The limitations clauses function as both limitations on human rights, but also as an acknowledgement of substantive entrenchment, rather than the purely procedural entrenchment of section 4 of Basic Law: The Knesset recognized in the Bergman decision. Previously, the Knesset could repeal even Basic Laws simply through passing conflicting statutes, by virtue of parliamentary sovereignty. By contrast, Bank Mizrahi empowered the Knesset which passed the limitations clauses to bind future Knesset sessions to comply with those clauses or have their legislation struck down via judicial review. In this approach to entrenchment, the current Israeli system mirrors the entrenchment of the Canadian Bill of Rights, as both laws are weakly entrenched such that while Knesset and Canadian parliament legislation can be struck down by their respective courts for failing to comply with their respective entrenched laws, both parliaments can override this provision by either explicitly stating their intent to do so or amending the conflicting laws themselves, depending on the case. Shortly after the Bank Mizrahi decision, the Knesset declared that it would review proposed laws for compliance with other Basic Laws going forward, and coalition government agreements since this case have included the stipulation that no party would attempt to modify Basic Laws without the agreement of all coalition partners.

Procedure for amendment

The Knesset can pass any law by a simple majority, even one that might arguably conflict with a Basic Law, unless the Basic Law has specific conditions for its modification. Basic laws that include specific conditions include the following:

• Article 4 of the Basic Law of the Knesset, on the electoral system, can be amended only by a majority of 61 of the 120 Knesset members.

• Article 44, which prevents the amendment of the law by an Emergency Regulation, can be amended only by a majority of 80 members.

A majority of the Knesset members can amend the Basic Laws on the government and on freedom of occupation.

List of the Basic Laws of Israel

Repealed laws