Israel Bergman's Basic Laws: Supreme Power

The Basic Laws of Israel are a set of fourteen quasi-constitutional laws that form the de facto constitution of the State of Israel. In 1969, the Supreme Court invalidated an election financing law because it contradicted the principle of equality in elections found in Article 4 of Basic Law: The Knesset. This case, known as Bergman v. Minister of Finance, implicitly assumed the power of substantive judicial review and established the Basic Laws as supreme. The Basic Laws deal with the formation and role of principal institutions, relations between state authorities, and the protection of civil rights. They are intended to be draft chapters of a future Israeli constitution.

The Supreme Court's authority to review Knesset legislation

The Supreme Court of Israel has, for several decades, assumed the right to declare Knesset legislation unconstitutional. However, the Supreme Court's authority to review Knesset legislation has been challenged by the 2023 Israeli judicial reform, which seeks to curb the judiciary's influence over lawmaking and public policy.

The reform would permit the Knesset to override a ruling by reintroducing the legislation and approving it with a majority of Knesset members. It would also diminish the ability of courts to conduct judicial reviews of the Basic Laws and change the makeup of the Judicial Selection Committee, giving the government control over the appointment of judges.

However, it is important to note that the Bergman decision did not explicitly endorse the principle of judicial review of all Knesset legislation. The Court clarified its stance in its 1974 Negev decision, stating that it lacked the power of judicial review in cases where the standard for potential review was an unentrenched ordinary law or Basic Law.

In recent years, the backlash against the Supreme Court's authority to review Knesset legislation has intensified, partly due to the rise of political populism in Israel. This has resulted in a situation where every time the Court struck down a law, politicians blamed it for undermining "governability" and called for curbing the authority of the Court to invalidate laws.

The current proposals to limit the Supreme Court's authority, put forward by Minister of Justice Yariv Levin and Simcha Rothman, seek to significantly weaken the Court's ability to review the compatibility of new legislation with the Basic Laws. This includes limiting the Court's authority to strike down legislation to those cases that substantively contradict an explicit provision of the Basic Law. The proposals also introduce severe limitations on the Court's authority, such as requiring a majority of 80% of its judges to support the invalidating decision or even a unanimous decision of all judges.

The radical nature of these proposals has been criticised by legal experts, who argue that they would spell the end of Israel as a constitutional democracy with meaningful protections for human rights and real checks on the powers of the Knesset.

The Basic Law: Israel as the Nation-State of the Jewish People

The first clause affirms that the land of Israel is the historical homeland of the Jewish people, in which the State of Israel was established. It also asserts the state's role in fulfilling the Jewish people's natural, cultural, religious, and historical right to self-determination. Additionally, the clause states that the right to exercise national self-determination in Israel is unique to the Jewish people.

The second clause defines the symbols of the state, including the name "Israel," the flag, the emblem, the anthem, and other details to be determined by law.

The third clause designates Jerusalem as the complete and united capital of Israel. It also establishes Hebrew as the state's official language, while granting Arabic a special status to be regulated by law.

The fifth clause addresses the ingathering of exiles, stating that the state will be open to Jewish immigration and the gathering of Jewish exiles.

The sixth clause focuses on the connection to the Jewish people. It outlines the state's responsibilities to ensure the safety and well-being of Jewish people worldwide, strengthen ties with the Diaspora, and preserve Jewish cultural, historical, and religious heritage.

The seventh clause emphasizes the state's view on Jewish settlement, considering it a national value. The government is committed to encouraging and promoting the establishment and consolidation of Jewish communities.

The eighth clause establishes the Hebrew calendar as the official calendar of the state, alongside the Gregorian calendar.

The ninth clause designates Independence Day, Memorial Day for the Fallen in Israel's Wars, and Holocaust and Heroism Remembrance Day as official national holidays.

The tenth clause acknowledges the Sabbath and the festivals of Israel as established days of rest. It also grants non-Jews the right to maintain their own days of rest and states that details regarding this issue will be determined by law.

The eleventh clause addresses the amendment process, stating that the Basic Law can only be amended by another Basic Law passed by a majority of Knesset members.

The Basic Law: Human Dignity and Liberty

The law protects life, bodily integrity, property, personal liberty, the right of everyone to exit Israel, the right of Israeli citizens to enter the country, and the right to privacy. It defines human freedom as the right to leave and enter the country, privacy (including speech, writings, and notes), intimacy, and protection from unlawful searches of one's person or property.

> "One is not to violate the rights in accordance with this Basic Law save by means of a law that corresponds to the values of the state of Israel, which serves an appropriate purpose, and to an extent that does not exceed what is required."

In 1995, the Supreme Court declared that basic laws are superior to regular laws and that it may strike down Knesset statutes that are incompatible with the terms of the limitation clauses in the two basic laws from 1992. This marked a significant shift in Israel's legal system, moving away from parliamentary sovereignty towards a constitutional democracy with a bill of rights.

The Basic Law: Freedom of Occupation

The law states that there shall be no violation of freedom of occupation, except by a law that aligns with the values of the State of Israel, serves a proper purpose, and does not exceed what is required. This is known as the "limiting paragraph", restricting the Knesset from creating laws that contradict this Basic Law.

The Freedom of Occupation law, along with the Basic Law: Human Dignity and Liberty, are considered by most Supreme Court judges to have initiated a Constitutional Revolution in Israel, marking a significant shift in the status of human rights in the country.

The Constitutional Revolution

The laws were passed by votes of 32–21 and 23–0 respectively, and Knesset debates indicate that many MKs were unaware that these laws pertained to the constitutional entrenchment of any rights or 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 the Basic Laws created a set of generalities and conflicting principles, which meant that it fell to the judiciary to interpret and give content to those laws. Barak's declaration of a constitutional revolution was a precursor to his majority opinion in the landmark 1995 Bank Mizrahi v. Migdal Cooperative Village case. This case 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 cumulative impact of the Bank Mizrahi decision was that it established judicial review of ordinary Knesset legislation, curbing the Knesset's parliamentary supremacy. According to some Israeli constitutional scholars, it also fully converted the Israeli constitution from an unwritten constitution to a formal, written constitution, albeit an incomplete one.

Frequently asked questions