Post by pieter on Jan 28, 2023 15:12:06 GMT -7
Folks,
Now Israel is a normal country, part of the world community, the Western world, the Free and Democratic First World and in cultural, political, financial economical sense to the Middle East, Europe and North America also in it's diplomacy, military power, modern agriculture, ICT (Information Communication Technology) importance, population and digital internet economy and connection with the world. It is part of the United Nations, the International Wheat Council, he Office of the United Nations High Commissioner for Refugees (UNHCR) and the Food and Agriculture Organization (FAO). Israel also participates in other international organizations such as the International Atomic Energy Agency (IAEA) and the World Health Organization (WHO). Israel left the United Nations Educational, Scientific and Cultural Organization (UNESCO) in a coordinated move with the US in 2019.
Within the UNESCO, Israel was a member in many international programs and organizations. In the area of science, Israel was an active member of the Man and the Biosphere Programme (MAB), the Intergovernmental Oceanographic Commission (IOC), the International Hydrological Programme (IHP), the International Centre for Synchrotron-Light for Experimental Science Applications in the Middle East (SESAME), and the International Geoscience Programme (IGCP).
Other notable organizations Israel is an active member of include the Education For All movement, the European Centre for Higher Education (CEPES), the World Heritage Committee (WHC), the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), and the International Council on Monuments and Sites (ICOMOS). Relations were carried out through the Israeli National Commission for UNESCO.
Israel joined the European Union's Framework Programmes for Research and Technological Development (FP) in 1994,[19] and is a member of the European Organization for Nuclear Research (CERN), the European Molecular Biology Organization (EMBO) and the European Molecular Biology Laboratory (EMBL). It is also a member of the Bank for International Settlement (BIS) since 2003.
On 10 May 2010, Israel was invited to join the Organisation for Economic Co-operation and Development (OECD). Israel is a member of NATO's Mediterranean Dialogue forum. In 2014 Israel joined the Paris Club.
After over 50 years of not being part of a regional grouping in the UN (effectively shut out of many internationals organizations), Israel joined the Western European and Others group on a temporary basis in 2000. Israel joined on a permanent basis in 2014.
Of course Israel is a member of the IMF, World Bank, the Bank for International Settlements (BIS) and many other International organizations.
In many ways Israel could be part of European organisations due to the fact that about 50% of the Israeli Jews has European roots, directly from European ancesters or indirectly via American ancestors who came from Europe to the USA. If not the Israeli and Polish administrations had quareled a few years ago about the past, Israel could have been a member of the Visgrad group. Israeli investments in the Polish, Hungarian, Czech and Slovak economies would have been benificial for these Center European countries and Polish, Hungarian, Czech and Slovak investments in Israel and trade with Israel beneficial for Israel and the Levant.
Israel has a three-tier court system. At the lowest level are magistrate courts, situated in most cities across the country. Above them are district courts, serving as both appellate courts and courts of first instance; they are situated in five of Israel's six districts. The third and highest tier is the Supreme Court, located in Jerusalem; it serves a dual role as the highest court of appeals and the High Court of Justice. In the latter role, the Supreme Court rules as a court of first instance, allowing individuals, both citizens and non-citizens, to petition against the decisions of state authorities. Although Israel supports the goals of the International Criminal Court, it has not ratified the Rome Statute, citing concerns about the ability of the court to remain free from political impartiality.
Israel's legal system combines three legal traditions: English common law, civil law, and Jewish law. It is based on the principle of stare decisis (precedent) and is an adversarial system, where the parties in the suit bring evidence before the court. Court cases are decided by professional judges with no role for juries. Marriage and divorce are under the jurisdiction of the religious courts: Jewish, Muslim, Druze, and Christian. The election of judges is carried out by a committee of two Knesset members, three Supreme Court justices, two Israeli Bar members and two ministers (one of which, Israel's justice minister, is the committee's chairman). The committee's members of the Knesset are secretly elected by the Knesset, and one of them is traditionally a member of the opposition, the committee's Supreme Court justices are chosen by tradition from all Supreme Court justices by seniority, the Israeli Bar members are elected by the bar, and the second minister is appointed by the Israeli cabinet. The current justice minister and committee's chairman is Gideon Sa'ar. Administration of Israel's courts (both the "General" courts and the Labor Courts) is carried by the Administration of Courts, situated in Jerusalem. Both General and Labor courts are paperless courts: the storage of court files, as well as court decisions, are conducted electronically. Israel's Basic Law: Human Dignity and Liberty seeks to defend human rights and liberties in Israel. As a result of "Enclave law", large portions of Israeli civil law are applied to Israeli settlements and Israeli residents in the occupied territories.
Judiciary of Israel
The judicial system of Israel consists of secular courts and religious courts. The law courts constitute a separate and independent unit of Israel's Ministry of Justice. The system is headed by the President of the Supreme Court and the Minister of Justice.
Religious courts include Jewish batei din, Muslim and Druze courts, and courts for ten recognized Christian communities.
Read more here: en.wikipedia.org/wiki/Judiciary_of_Israel
Beth din
בית דין
A beit din (Hebrew: בית דין, romanized: Bet Din, lit. 'house of judgment', [bet ˈdin], Ashkenazic: beis din, plural: batei din) is a rabbinical court of Judaism. In ancient times, it was the building block of the legal system in the Biblical Land of Israel. Today, it is invested with legal powers in a number of religious matters (din Torah, "matter of litigation", plural dinei Torah) both in Israel and in Jewish communities in the Diaspora, where its judgments hold varying degrees of authority (depending upon the jurisdiction and subject matter) in matters specifically related to Jewish religious life.
Chief Ashkenazi Rabbi David Lau (center) and Sephardi Chief Rabbi Yitzhak Yosef (right) attend a meeting of the Rabbinate Council in Jerusalem in November 2014. (Yonatan Sindel/Flash90)
Basic Laws of Israel
upload.wikimedia.org/wikipedia/commons/thumb/a/ac/Flickr_-_Government_Press_Office_%28GPO%29_-_A_CEREMONY_MARKING_50_YEARS_OF_LAW_HELD_AT_THE_SUPREME_COURT_IN_JERUSALEM.jpg/1920px-Flickr_-_Government_Press_Office_%28GPO%29_-_A_CEREMONY_MARKING_50_YEARS_OF_LAW_HELD_AT_THE_SUPREME_COURT_IN_JERUSALEM.jpg
The Basic Laws of Israel (Hebrew: חוקי היסוד, romanized: Ḥukey HaYesod) are thirteen quasi-constitutional laws of the State of Israel, and some of them can only be changed by a supermajority vote in the Knesset (with varying requirements for different Basic Laws and sections). Many of these laws are based on the individual liberties that were outlined in the Israeli Declaration of Independence. The Basic Laws deal with the formation and role of the principal institutions of the state, and with the relations between the state's authorities. They also protect the country's civil rights, although some of these rights were earlier protected at common law by the Supreme Court of Israel. The Basic Law: Human Dignity and Liberty enjoys super-legal status, giving the Supreme Court the authority to disqualify any law contradicting it, as well as protection from Emergency Regulations.
The Basic Laws were intended to be draft chapters of a future Israeli constitution, which has been postponed since 1950; they act as a de facto constitution until their future incorporation into a formal, unitary, written constitution. Israel is one of six countries (along with Canada, New Zealand, San Marino, Saudi Arabia and the United Kingdom) that operate entirely or in part according to an uncodified constitution consisting of both material constitutional law (based upon cases and precedents), common law, and the provisions of these formal statutes.
Background
Cover page for Israeli Constitution draft proposed by the Institute for Zionist Strategies
The State of Israel has an unwritten constitution. Instead of a formal written constitution, and in accordance with the Harari Decision (הַחְלָטַת הֲרָרִי) of 13 June 1950 adopted by the Israeli Constituent Assembly (the First Knesset), the State of Israel has enacted several Basic Laws of Israel dealing with government arrangements and with human rights. The Israeli Supreme Court President Aharon Barak ruled that the Basic Laws should be considered the state's constitution, and that became the common approach throughout his tenure (1995-2006). Opponents of this approach included Barak's colleague, Supreme Court Justice Mishael Cheshin.
According to Israel's Declaration of Independence of 14 May 1948, a constituent assembly should have prepared a constitution by 1 October 1948. The delay and the eventual decision on 13 June 1950 to legislate a constitution chapter by chapter, resulted primarily from the inability of different groups in Israeli society to agree on the purpose of the state, on the state's identity, and on a long-term vision. Another factor was the opposition[why?] of David Ben-Gurion (Prime Minister 1948-1954 and 1955-1963).
Various bodies in Israel have called for the enactment of a formal constitution as a single document, and have submitted ideas and drafts for consideration.
The Israeli Declaration of Independence stated that a formal constitution would be formulated and adopted no later than 1 October 1948. The deadline set in the declaration of independence proved unrealistic in light of the war between the new state and its Arab neighbors. General elections eventually took place on 25 January 1949 in order to elect a Constituent Assembly which would approve the new state's constitution. The Constituent Assembly convened in February 1949. It held several discussions about the constitution without reaching an agreement.
For a number of reasons, Israel's first Prime Minister, David Ben-Gurion, did not wish to develop a constitution. After only four meetings, the Constituent Assembly adopted on 16 February 1949 the Transition Law, by which means it became the "First Knesset". Because the Constituent Assembly did not prepare a constitution for Israel, the Knesset is the heir of the Assembly for the purpose of fulfilling this function.
The Basic Laws do not cover all constitutional issues, and there is no deadline set for the completion of the process of merging them into one comprehensive constitution. There is no clear rule determining the precedence of Basic Laws over regular legislation, and in many cases such issues are left to interpretation by the judicial system.
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[by whom?] 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.[26] However, Justice Aharon Barak, who would become President of the Supreme Court (equivalent to Chief Justice of the United States), 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 Bill of Rights’ “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 Bank Mizrahi was announced, 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 enjoys de jure parliamentary supremacy and can pass any law by a simple majority, even one that might arguably conflict with a Basic Laws of Israel, 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.
Now Israel is a normal country, part of the world community, the Western world, the Free and Democratic First World and in cultural, political, financial economical sense to the Middle East, Europe and North America also in it's diplomacy, military power, modern agriculture, ICT (Information Communication Technology) importance, population and digital internet economy and connection with the world. It is part of the United Nations, the International Wheat Council, he Office of the United Nations High Commissioner for Refugees (UNHCR) and the Food and Agriculture Organization (FAO). Israel also participates in other international organizations such as the International Atomic Energy Agency (IAEA) and the World Health Organization (WHO). Israel left the United Nations Educational, Scientific and Cultural Organization (UNESCO) in a coordinated move with the US in 2019.
Within the UNESCO, Israel was a member in many international programs and organizations. In the area of science, Israel was an active member of the Man and the Biosphere Programme (MAB), the Intergovernmental Oceanographic Commission (IOC), the International Hydrological Programme (IHP), the International Centre for Synchrotron-Light for Experimental Science Applications in the Middle East (SESAME), and the International Geoscience Programme (IGCP).
Other notable organizations Israel is an active member of include the Education For All movement, the European Centre for Higher Education (CEPES), the World Heritage Committee (WHC), the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM), and the International Council on Monuments and Sites (ICOMOS). Relations were carried out through the Israeli National Commission for UNESCO.
Israel joined the European Union's Framework Programmes for Research and Technological Development (FP) in 1994,[19] and is a member of the European Organization for Nuclear Research (CERN), the European Molecular Biology Organization (EMBO) and the European Molecular Biology Laboratory (EMBL). It is also a member of the Bank for International Settlement (BIS) since 2003.
On 10 May 2010, Israel was invited to join the Organisation for Economic Co-operation and Development (OECD). Israel is a member of NATO's Mediterranean Dialogue forum. In 2014 Israel joined the Paris Club.
After over 50 years of not being part of a regional grouping in the UN (effectively shut out of many internationals organizations), Israel joined the Western European and Others group on a temporary basis in 2000. Israel joined on a permanent basis in 2014.
Of course Israel is a member of the IMF, World Bank, the Bank for International Settlements (BIS) and many other International organizations.
In many ways Israel could be part of European organisations due to the fact that about 50% of the Israeli Jews has European roots, directly from European ancesters or indirectly via American ancestors who came from Europe to the USA. If not the Israeli and Polish administrations had quareled a few years ago about the past, Israel could have been a member of the Visgrad group. Israeli investments in the Polish, Hungarian, Czech and Slovak economies would have been benificial for these Center European countries and Polish, Hungarian, Czech and Slovak investments in Israel and trade with Israel beneficial for Israel and the Levant.
Israel has a three-tier court system. At the lowest level are magistrate courts, situated in most cities across the country. Above them are district courts, serving as both appellate courts and courts of first instance; they are situated in five of Israel's six districts. The third and highest tier is the Supreme Court, located in Jerusalem; it serves a dual role as the highest court of appeals and the High Court of Justice. In the latter role, the Supreme Court rules as a court of first instance, allowing individuals, both citizens and non-citizens, to petition against the decisions of state authorities. Although Israel supports the goals of the International Criminal Court, it has not ratified the Rome Statute, citing concerns about the ability of the court to remain free from political impartiality.
Israel's legal system combines three legal traditions: English common law, civil law, and Jewish law. It is based on the principle of stare decisis (precedent) and is an adversarial system, where the parties in the suit bring evidence before the court. Court cases are decided by professional judges with no role for juries. Marriage and divorce are under the jurisdiction of the religious courts: Jewish, Muslim, Druze, and Christian. The election of judges is carried out by a committee of two Knesset members, three Supreme Court justices, two Israeli Bar members and two ministers (one of which, Israel's justice minister, is the committee's chairman). The committee's members of the Knesset are secretly elected by the Knesset, and one of them is traditionally a member of the opposition, the committee's Supreme Court justices are chosen by tradition from all Supreme Court justices by seniority, the Israeli Bar members are elected by the bar, and the second minister is appointed by the Israeli cabinet. The current justice minister and committee's chairman is Gideon Sa'ar. Administration of Israel's courts (both the "General" courts and the Labor Courts) is carried by the Administration of Courts, situated in Jerusalem. Both General and Labor courts are paperless courts: the storage of court files, as well as court decisions, are conducted electronically. Israel's Basic Law: Human Dignity and Liberty seeks to defend human rights and liberties in Israel. As a result of "Enclave law", large portions of Israeli civil law are applied to Israeli settlements and Israeli residents in the occupied territories.
Judiciary of Israel
The judicial system of Israel consists of secular courts and religious courts. The law courts constitute a separate and independent unit of Israel's Ministry of Justice. The system is headed by the President of the Supreme Court and the Minister of Justice.
Religious courts include Jewish batei din, Muslim and Druze courts, and courts for ten recognized Christian communities.
Read more here: en.wikipedia.org/wiki/Judiciary_of_Israel
Beth din
בית דין
A beit din (Hebrew: בית דין, romanized: Bet Din, lit. 'house of judgment', [bet ˈdin], Ashkenazic: beis din, plural: batei din) is a rabbinical court of Judaism. In ancient times, it was the building block of the legal system in the Biblical Land of Israel. Today, it is invested with legal powers in a number of religious matters (din Torah, "matter of litigation", plural dinei Torah) both in Israel and in Jewish communities in the Diaspora, where its judgments hold varying degrees of authority (depending upon the jurisdiction and subject matter) in matters specifically related to Jewish religious life.
Chief Ashkenazi Rabbi David Lau (center) and Sephardi Chief Rabbi Yitzhak Yosef (right) attend a meeting of the Rabbinate Council in Jerusalem in November 2014. (Yonatan Sindel/Flash90)
Basic Laws of Israel
upload.wikimedia.org/wikipedia/commons/thumb/a/ac/Flickr_-_Government_Press_Office_%28GPO%29_-_A_CEREMONY_MARKING_50_YEARS_OF_LAW_HELD_AT_THE_SUPREME_COURT_IN_JERUSALEM.jpg/1920px-Flickr_-_Government_Press_Office_%28GPO%29_-_A_CEREMONY_MARKING_50_YEARS_OF_LAW_HELD_AT_THE_SUPREME_COURT_IN_JERUSALEM.jpg
The Basic Laws of Israel (Hebrew: חוקי היסוד, romanized: Ḥukey HaYesod) are thirteen quasi-constitutional laws of the State of Israel, and some of them can only be changed by a supermajority vote in the Knesset (with varying requirements for different Basic Laws and sections). Many of these laws are based on the individual liberties that were outlined in the Israeli Declaration of Independence. The Basic Laws deal with the formation and role of the principal institutions of the state, and with the relations between the state's authorities. They also protect the country's civil rights, although some of these rights were earlier protected at common law by the Supreme Court of Israel. The Basic Law: Human Dignity and Liberty enjoys super-legal status, giving the Supreme Court the authority to disqualify any law contradicting it, as well as protection from Emergency Regulations.
The Basic Laws were intended to be draft chapters of a future Israeli constitution, which has been postponed since 1950; they act as a de facto constitution until their future incorporation into a formal, unitary, written constitution. Israel is one of six countries (along with Canada, New Zealand, San Marino, Saudi Arabia and the United Kingdom) that operate entirely or in part according to an uncodified constitution consisting of both material constitutional law (based upon cases and precedents), common law, and the provisions of these formal statutes.
Background
Cover page for Israeli Constitution draft proposed by the Institute for Zionist Strategies
The State of Israel has an unwritten constitution. Instead of a formal written constitution, and in accordance with the Harari Decision (הַחְלָטַת הֲרָרִי) of 13 June 1950 adopted by the Israeli Constituent Assembly (the First Knesset), the State of Israel has enacted several Basic Laws of Israel dealing with government arrangements and with human rights. The Israeli Supreme Court President Aharon Barak ruled that the Basic Laws should be considered the state's constitution, and that became the common approach throughout his tenure (1995-2006). Opponents of this approach included Barak's colleague, Supreme Court Justice Mishael Cheshin.
According to Israel's Declaration of Independence of 14 May 1948, a constituent assembly should have prepared a constitution by 1 October 1948. The delay and the eventual decision on 13 June 1950 to legislate a constitution chapter by chapter, resulted primarily from the inability of different groups in Israeli society to agree on the purpose of the state, on the state's identity, and on a long-term vision. Another factor was the opposition[why?] of David Ben-Gurion (Prime Minister 1948-1954 and 1955-1963).
Various bodies in Israel have called for the enactment of a formal constitution as a single document, and have submitted ideas and drafts for consideration.
The Israeli Declaration of Independence stated that a formal constitution would be formulated and adopted no later than 1 October 1948. The deadline set in the declaration of independence proved unrealistic in light of the war between the new state and its Arab neighbors. General elections eventually took place on 25 January 1949 in order to elect a Constituent Assembly which would approve the new state's constitution. The Constituent Assembly convened in February 1949. It held several discussions about the constitution without reaching an agreement.
For a number of reasons, Israel's first Prime Minister, David Ben-Gurion, did not wish to develop a constitution. After only four meetings, the Constituent Assembly adopted on 16 February 1949 the Transition Law, by which means it became the "First Knesset". Because the Constituent Assembly did not prepare a constitution for Israel, the Knesset is the heir of the Assembly for the purpose of fulfilling this function.
The Basic Laws do not cover all constitutional issues, and there is no deadline set for the completion of the process of merging them into one comprehensive constitution. There is no clear rule determining the precedence of Basic Laws over regular legislation, and in many cases such issues are left to interpretation by the judicial system.
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[by whom?] 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.[26] However, Justice Aharon Barak, who would become President of the Supreme Court (equivalent to Chief Justice of the United States), 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 Bill of Rights’ “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 Bank Mizrahi was announced, 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 enjoys de jure parliamentary supremacy and can pass any law by a simple majority, even one that might arguably conflict with a Basic Laws of Israel, 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.