In a dramatic move akin to Kesavananda Bharati, Israel’s SC said the “unconstitutional constitutional amendment” to the basic law on adjudication which the Knesset had passed earlier was unreasonable
By Prof Upendra Baxi
The Supreme Court of Israel (SCOI, which also functions as a High Court of Justice) on January 1, 2024, in Movement for Quality Government ruled [via a 738-page decision] as patently unreasonable the “unconstitutional constitutional amendment” to the basic law on adjudication. This is reminiscent of India’s own full court (then 13 judges) decision in Kesavananda Bharati as early as April 24, 1973.
Official language difficulties decree that this decision will take some time to be translated from Hebrew to English, but there are a few excellent expositions available in English on which I rely here.* Still, we will have to await the full text to decipher whether and how far the Indian judicial doctrine trend impacted SCOI.
Israel does not have a complete constitution. Instead, it has a set of 13 basic laws, enacted in a procedure akin to that required to pass ordinary legislation by Israel’s legislative body, the Knesset. However, in United Mizrahi Bank case (1995), the SCOI held that the Knesset acts as a constitutional assembly when making, remaking, or unmaking the basic laws. The Knesset must now follow closely the constitutional discipline of the basic identity and the basic structure.
The SCOI has struck down 23 legislative provisions, but not undermined any basic laws. However, July 24, 2023, is a red-letter day in comparative constitutional studies (COCOS, as I name the field). That is when the Knesset abruptly passed an amendment to basic law on adjudication (during protracted upsurge of mass protest publics that I have previously reviewed; see India Legal, July 23, 2023), ousting the doctrine of reasonableness and thus seeking an end to the power and process of constitutional judicial review.
This was itself invalidated (on January 1, 2024) in Movement for Quality Government by a wafer-thin 8-7 SCOI majority (like India’s own Kesavananda Bharati) as an unconstitutional constitutional amendment. The petitioners sought the invalidation as the amendment was “patently unreasonable”.
Given the “dramatic importance”, a broader majority of 12 out of 15 justices rule that the Court has “in principle, the legal authority to review constitutional amendments”.
The set of 13 basic laws are passed by Israel’s legislative body, the Knesset, in a procedure identical to the one required to pass ordinary legislation. In United Mizrahi Bank (1995), the court held momentously that in enacting basic laws, the Knesset operates as a constitutional assembly; and the amendments can be judicially reviewed. Since then, the SCOI has struck down 23 laws or legislative provisions. The difference here is that it invalidated for the first time an amendment to a provision of the basic law. Crucial also is the migration of an administrative doctrine to the sphere of constitutionality adjudication.
Twelve out of 15 Justices agreed that whenever a basic law provision contradicts the core aspects of Israel’s identity as a “Jewish and democratic state”, the Court may strike it down because Knesset is not “unlimited in scope”. This premise is based on the “foundational normative structures created by Israel’s constitutional constellation in its entirety”—comprising Israel’s Declaration of Independence, the 13 basic laws and the Court’s jurisprudence related to them.
The overall framework of implicit limitations on the amending power is conceptually like the India’s Kesavananda decision supplemented by its normative progeny. Like the Israeli people, who are the “real sovereign” who did not “delegate to the Knesset” the legal authority to change the core of Israel’s identity as a Jewish and democratic state, Kesavananda also upheld the basic structure and thereby protected and promoted popular constitutional sovereignty.
Not all Justices, however, seem to have accepted the idea of “constitutional constellation”. Justice Alex Stein found the Israeli Declaration of Independence sufficient for the decision and Justice Yael Willner invoked the simple principle: the highest Court is not “subject to the jurisdiction of another judicial body”. Even one of the three dissentient Justices, who did not vote in favour of the proposition that the court may review basic laws—Justice Yosef Elron—was willing to consider reviewing constitutional amendments in extreme cases infringing on individual rights, though he did not elaborate any criteria by which one may decide such cases.
It is worth noting that constitutional constellation in its entirety was reinforced by policy considerations in the leading opinion by the outgoing High Court of Justice president, Esther Hayut. She acknowledged some policy considerations—notably, the opinion states that a lack of judicial review over amendments to basic laws may further enhance the “ease by which it is now possible to amend the constitution” which “opens the door to chronic abuse of the amendment process and is a source of constitutional instability”; and the total control exerted by the political majority in the Knesset over the constitutional amendment process enshrines “day-to-day politics and the drafting of constitutional texts along partisan lines”.
Further, outside of a judicial reading of implied limitation on the power to amend, the Knesset’s power will be unlimited, coupled with aura of impunity. It is a “unicameral body controlled by the same parties that control the executive branch” and there is “no real version of Israeli federalism… no vertical division of powers across different geographic areas”.
Still, we must note that two of the Justices—Noam Sohlberg and David Mintz—rejected this approach altogether and held that the court has no “formal authority” to review “new basic laws or amendments to existing ones”. For Justice Sohlberg, the question of the contents of the grundnorm (basic norm) of the Israeli legal system was not a “proper legal question that the court is competent to determine”. Justice Mintz held that it would be undemocratic for the court to have the “last word” in the Israeli legal system.
The “undemocratic” charge, with respect, is misdirected, and even misleading. Indeed, as many Justices stressed, the patently unreasonableness test provides “Israeli gatekeepers, especially the professional legal service within the government” with a powerful tool to “prevent the government from adopting illegal policies by requiring government ministers to provide detailed explanations for their decisions” and to defend these at the stage of judicial review.
Moreover, as far as the reasonableness amendment was animated by the governmental desire to put in place in place a committed bureaucracy (that punished and disciplined “errant” bureaucrats who lapsed into reason) signifies the “removal of important internal check on executive power, which affords an important rule of law safeguard”. We may emphasise here that the importance of this kind of gatekeeping does not play any significant role in Kesavananda and its normative progeny.
The ouster of a judge from demanding manifest reasonableness of state action amounts to a situation of a “law without a judge”—a situation which is an anathema to democracy and is incompatible with even a minimalist rule of law requirements.
The upshot, then in both Israel and India, is not judicial despotism but rather judicial renaissance of the very notions of democracy and rule of law as being crucial to the dance of democracy—“chaosmos” (ordered disorder) as the aesthetics theorists describe the notion of order within beauty.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
* Aeyal Gross, “Did the Israeli Supreme Court Kill the Constitutional Coup?” Verfasungsblog [9 January 2024] and Amichai Cohen, Yuval Shany, “The HCJ Strikes Back: Israel’s Supreme Court Pulls the Plug on ‘Judicial Reform’.” Lawfare, January 11, 2024.