—Paolo Sandro, University of Leeds
Introduction
Last month Netanyahu’s government, despite the unprecedented mass demonstrations taking place on a weekly basis across Israel for months now, has passed what is likely to be only the first step of their proposed overhaul of the Israeli judicial system. Already taken on its own, this first reform is momentous: the new legislation amends Section 15 of the Basic Law: The Judiciary to remove the reasonableness ground among those that courts can use in judicial review to find government action unlawful. Significantly, despite calls for compromise – where the removal of reasonableness review would have been limited only to an inherently more political category of government’s acts, namely the nomination of ministers – the ruling coalition has instead decided to remove the ground of review for all decisions by the Cabinet and by government ministers. Critical reactions were immediate: the reform has been denounced globally by leading Israeli law professors, and the Supreme Court of Israel has now confirmed they will hear petitions against the amendment to the Basic Law.
That the Supreme Court might exercise this type of judicial review over constitutional amendments (and potentially strike them down as unconstitutional) is far from uncontroversial though. For while in the past the Court has hinted at this possibility – de facto postulating some version of the ‘basic structure’ doctrine – this has never materialised after all. The reasons for this are likely several and cut across the legal and political landscape, but a crucial one arguably lies in the apparent lack of formal legitimacy of such a move, given Israel’s singular constitutional history and arrangements and in the absence of a formally entrenched constitution.
In this post, after briefly illustrating the flexibility of the formal constitutional arrangements in Israel which give rise to the issue, I will argue that on a proper understanding of the common law model of constitutionalism (upon which the Israeli constitutional experience undoubtedly draws) The Supreme Court of Israel is indeed entitled to review the constitutionality of the amendment of the Basic Law: The Judiciary. This is because, even in a system of parliamentary sovereignty, the core principles of judicial review (which include the independence of the courts and the grounds of review) cannot be unilaterally altered in a pejorative sense (or removed tout court) by the legislature.
The formal flexibility of the Basic Laws of Israel
The Basic Laws of Israel, adopted over a period of several decades, were initially conceived of as a preliminary stage towards a full-fledged constitution for the new state. Given the lack of realisation of this latter, post-1992 these Basic Laws have become to be recognised as Israel (proto-)constitution. A consequential moment in this process – which has been termed a ‘constitutional revolution’ – is represented by the 1995 United Mizrahi Bank decision by the Supreme Court of Israel, in which the Court recognised superior normative status to the Basic Laws vis-à-vis ordinary legislation, as well as the accompanying power of judicial review over primary legislation. This ‘revolution’ appears to have been accepted, in practice, by consecutive iterations of the Knesset and Israeli society at large.
And yet, a closer look of the entrenchment status of the Basic Laws betrays perhaps their origin as ‘transition’ documents. First things first, by entrenchment it is commonly meant that a constitutional clause or norm is more difficult to amend or to repeal than ordinary legislation.[1] Thus, if ordinary legislation requires a simple majority in the legislative chamber to be passed, and the constitution requires simple majority plus one vote for amendments to its text, that could already be technically termed as a form of entrenchment, albeit a clearly shallow one.
Entrenchment, in this respect, is a scalar property. It is also a relative one – discussing entrenchment only makes sense vis-à-vis the process for approving ordinary legislation. Different forms of entrenchment are possible, from formal requirements (a particular string of words in the bill), to increased voting majorities, all the way to different and more complex approval procedures (including a popular referendum). There is also the possibility of absolute entrenchment, that is when parts of the constitutional text (or norms) are put beyond the amendment or repeal by any majority whatsoever. This is usually done explicitly through the use of so-called ‘eternity clauses’ in the constitutional text.
Now, while it is technically correct to describe some constitutions as ‘entrenched’ overall (because the entirety of the constitutional text requires something more than the ordinary legislative procedure to be amended – the Italian 1947 Constitution is an example), many constitutions are a combination of different forms of entrenchment (ranging from increased majorities to additional procedural steps, all the way to eternity clauses). What about Israel then?
By all accounts, it is safe to characterise the Basic Laws of Israel as extremely flexible from a formal point of view. There are no eternity clauses in the text of the Basic Laws. Moreover, the Basic Laws can simply be amended via ordinary legislation: to be more precise, they can be created, amended, or repealed by a majority of those participating in the voting in the Knesset, as long as the bill is passed with the proper name of ‘Basic Law’.[2] There are only two exceptions:
- Some sections which require ‘a majority of the members of the Knesset (such as section 4 Basic Law: The Knesset); and
- Some sections of the Basic Law: The Knesset which require a majority of eighty members (out of 120) to extend the Knesset’s term (section 9A) and to amend the prohibition of amendment/repeal by emergency regulations (section 44).[3]
The conundrum of ‘unconstitutional’ constitutional amendments in a regime of constitutional flexibility
From a formal point of view, it is only these latter, entrenched, provisions which can legitimise the Court exercising a power of review over constitutional amendments. What would be in fact the point of prohibiting that some section of the Basic Laws cannot be amended by less than a two-thirds majority of the legislature, if that norm is not thereafter enforced via judicial review? In this regard, there are precedents – notably, even before the 1995 ‘constitutional revolution’ brought about by the landmark decision in United Mizrahi Bank – in which the Court enforced the formal procedural entrenchment of section 4 Basic Law: The Knesset. The Court’s decisions, however, were not exactly followed in practice.
In any case, the issue is that the rest of the Basic Laws are not entrenched (not even procedurally), and as such it is not clear on which basis the Court could intervene to review the constitutionality of their constitutional amendment. What would be the yardstick? The fact that there are also no eternity clauses in the Basic Laws (unlike, say, the German or Italian constitutions) compounds the issue, as we do not seem to have any explicit or formal starting point when looking for a ‘basic structure’. Moreover, while the importance of the decision in United Mizrahi Bank cannot be underestimated, it did not establish the power for the Supreme Court to review constitutional amendments to the Basic Laws (as it happened for instance with the Kesavananda decision of the Supreme Court of India). This, in fact, cannot be easily squared with the theoretical model – the ‘constituent assembly’ theory – offered by the Supreme Court of Israel in United Mizrahi Bank to recognise the superior normative hierarchy of the Basic Laws and the power to review ordinary legislation vis-à-vis them.[4] It also does not fit the traditional parliamentary sovereignty/common law model of constitutionalism, upon which the Israeli legal system and constitutional arrangements are historically based.
So, while Israel might be indeed understood as a case of ‘hybrid’ constitutionalism – somewhere in-between the ‘legal’ (or entrenched) and the new Commonwealth models – there is no straightforward path to ground the possibility of judicial review of constitutional amendments. As we just said, the Basic Laws lack strong textual anchors vis-à-vis absolute entrenchment and the related development of a ‘basic structure’ doctrine, which can be instead found in foreign experiences (like Germany or Italy). This means that the Supreme Court of Israel would have to bootstrap constitutional amendment review in a similar fashion to the Indian case, which is a possibility (already hinted at by the Court). But this would not fit easily neither with the constituent assembly theory –[5] on which the existing power of the Supreme Court to review ordinary legislation for compatibility with the Basic Laws is recognised to be based – nor with the parliamentary sovereignty/common law constitutional model, from which the Israeli system emerged.[6] Does it mean that everything is up from grab for a political majority, provided that the correct label – ‘Basic Law’ – is slammed on a bill, like in the current scenario?
Common law constitutionalism and the limits of judicial review reform
I contend that this is not the case. That is, a more careful analysis of the evolution of the common law model of constitutionalism – the one developed in Britain over time immemorial – returns a very different answer on the question of the limits of parliamentary authority from the prevailing one, according to which in such a system the law-making capacity of Parliament has no legal (that is, constitutional) limits.
The crucial (and perhaps slightly counter-intuitive) move, as I explain in my recent book, is for constitutional theory to move away from the focus on constitutions (or lack thereof) and instead zero in on the operationalisation of the doctrine of constitutionalism directly. From this vantage point, the standard dichotomy between legal and political constitutionalist models fades away. For what the doctrine of modern constitutionalism requires is not, necessarily, the presence of a formal, entrenched constitution. What it requires, at a minimum, is that even the law-making power of the legislative authority – which in a democracy is usually the politically legitimated assembly – is legally limited. There must be certain things that, as a matter of law, no political majority, however large, can do.
It is true that, in most modern liberal democracies, this happens through an entrenched constitutional document which sets formal and substantive limits on the legislative power of the legislature and which is enforced by a supreme or constitutional court. But the doctrine of constitutionalism can also be instantiated through a specific institutional setting, even in the absence of a formally entrenched constitutional document. What the doctrine requires is, as we just said, that the law which is the product of political authority – lex – is limited by a different type of law, ius. This latter is constituted by the body of judge-made law which protects the fundamental liberties of the subjects and – at a minimum – meaningful access to courts, where individuals can seek redress from the action of the state and other individuals alike (a key element of the rule of law under any account of the doctrine). What is crucial, in this instantiation of the doctrine of constitutionalism, is that this second type of law – ius – is institutionally and normatively autonomous from lex in its fundamental elements. In other words, the legislative authority cannot unilaterally dispose of the core elements of the judge-made law regarding fundamental rights (whatever these might be) and access to justice (which includes a robust degree of judicial independence).
Clearly, in the absence of a formal entrenched document, this kind of limitation will be chiefly pragmatic – that is, without normally resorting to explicit normative conflict between ordinary and ‘constitutional’ norms – and will depend on collaboration and mutual respect between the different branches of government. It will tolerate, in other words, a meaningful type of indeterminacy as to where the last word on the meaning of legislation lies (whether with the legislature or with the courts). But when collaboration between the branches breaks down and the legislature goes beyond the remit of its constitutional authority, the courts are entitled to step in.
I contend that this approach captures the evolution and current workings of the common law model of constitutionalism in England. In this respect, English courts have since time immemorial provided pragmatic limitation vis-à-vis the law-making power of monarchs first and parliaments later through the common law of the land. Judicial review in particular constitutes a core structural element of the common law – and its main tenets, including the grounds of review – have been developed (not always organically, granted) by courts over several centuries.
This can be seen most clearly in the UK debate on the legitimacy and feasibility of ouster courts – legislative clauses which purport to exclude the supervisory jurisdiction of the High Court in London. For, despite rhetorical declarations to the contrary, even the current Conservative government seems to have accepted that there is a core of judicial review which not even the ‘omnipotent’ Westminster Parliament can unilaterally remove. The partial ouster clause in the Judicial Review and Courts Act 2022 is significant but in the opposite sense that what it might appear prima facie.
Parliament, in fact, seems to have accepted that it cannot remove fully the supervisory jurisdiction of the High Court, not even when they are giving the last word to a body – a senior tribunal – that is for all practical purposes like a court. This, in turn, is what English courts have been saying – more or less explicitly – since time immemorial. It is captured by the principle nemo iudex in causa sua (‘no one should be a judge in their own cause’) which the courts have repeatedly enforced throughout the history of the common law, even (and significantly) in the face of clear statutory language to the contrary. But what is this, if not imposing legal limits – through the circumvention of the ordinary meaning of the statute – on the law-making powers of the legislature? In other words, the basic principles of judicial review in the UK are beyond the legislative competence of the Westminster Parliament (unless they are to be expanded or strengthened, as it happened for instance with the Human Right Act 1998) and represent constitutional limits to its law-making powers.
Conclusion
From what I have just said, then, it should be apparent why the Supreme Court of Israel is entitled to review the constitutionality of the amendment of Section 15 of the Basic Law: The Judiciary, even in the absence of a formally entrenched constitution. For the basic principles of judicial review of governmental action – its grounds and scope, as well the independence of courts and access to them – represent the core of ius that is beyond the constitutional remit of any legislature under the common law model of constitutionalism, upon which the Israeli system and practice are based. To be even more precise, these principles can only be strengthened and/or expanded but not diminished (or, worse, entirely removed) by the Knesset acting unilaterally, no matter with which majority.
In the case at hand, why is the removal of the reasonableness standard of review for decisions of the Cabinet and Ministers so problematic in itself? While it cannot be denied that in many administrative decisions a range of reasonable (and thus, in principle, legitimate) choices exist, it is also undeniable that some decisions can be objectively considered unreasonable, even extremely so. Therefore, the amendment to the Basic Law: The Judiciary would make even a manifestly unreasonable exercise of power by Cabinet or by a Minister lawful. Yet, a manifestly unreasonable exercise of power is nothing but an arbitrary exercise of power – which amounts, again on all possible accounts, to the very negation of the rule of law. Furthermore, and as it has been illustrated already, the reform could have significant impact beyond the more politically salient (and arguably more open for debate) issue of the nomination of ministers which might lack honourability requirements to serve in government.
Still, it could be argued that, taken in isolation, this initial judicial reform by Netanyahu’s government (narrowly) fails to meet the threshold for unconstitutionality even under the account presented here. In this respect, part and parcel of the common law model of constitutionalism, as I have hinted above and showed elsewhere, is that courts find pragmatic ways to limit the authority of the legislator. Thus, in this case the Supreme Court could find that the removal of the reasonableness review standard vis-à-vis decisions by Cabinet and Minister can be ‘compensated’ by developing other standards of review, and that as such it does not have to be struck down for unconstitutionality.
The point is that this is for the Court to decide. To this end, in this short contribution I have endeavoured to provide a theoretical foundation to the constitutional review by the Israeli Supreme Court of the Knesset’s amendment to Section 15 of Basic Law: The Judiciary. This explanation has the advantage, over other theoretical routes to substantiate the Court’s legitimacy to conduct such review,[7] that it prescinds from the enactment, content and status of the Basic Laws and it is instead rooted in the common law tradition on which the Israeli system and practice are based.
Acknowledgments: My thanks go to Pablo Castillo-Ortiz and especially to Adam Shinar for incredibly helpful comments on a previous version of this post. I also owe a continuous debt of gratitude to Mathieu Carpentier for our ongoing discussions on constitutional theory matters, which have informed a significant part of this post.
Suggested citation: Paolo Sandro, Constitutional amendments review without entrenchment in Israel? Common law constitutionalism and the limits of judicial review reform, Int’l J. Const. L. Blog, Aug. 26, 2023, at: iconnectblog.com/constitutional-amendments-review-without-entrenchment-in-israel-common-law-constitutionalism-and-the-limits-of-judicial-review-reform/
[1] Therefore, while amendment should be strictly speaking only predicated of provisions (norm-formulations, clauses, etc), entrenchment can be meaningfully used to refer to both provisions and norms (as the meaning(s) expressed by those provisions). For the purposes of this blog, I will leave the notion of ‘entrenchment’ at that. I plan however to provide a fuller analytical account of the notion in future work.
[2] This is an example of formal entrenchment, which represents without a doubt the shallowest form of entrenchment (to the point that it is questionable whether it is a form of entrenchment, on its own, after all). In this respect, I should note that historically there appear to have been cases in which Basic Laws were amended by ordinary legislation tout court.
[3] The special majority is also required to amend the ‘entrenching’ sections (sections 45 and 45A). This is known as self-entrenchment.
[4] I should point out that the opinions of the judges in the in United Mizrahi Bank case varied on this point, and that no everyone on the panel agreed on the constituent assembly theory as foundation for the decision.
[5] What I mean is that the theoretical distinction between ‘original’ and ‘derived’ constituent power appears harder to apply onto the Israeli context due to its unique historical circumstances.
[6] It is also arguable that the significant differences in scope between the Indian Constitution and the Basic Laws, in addition to historical and contextual factors, could represent a further obstacle to the simple ‘transplant’ of the basic structure doctrine in the Israel context.
[7] To be sure, nothing that I have said in this post should be construed as meaning that the Court’s legitimacy cannot be grounded using other theoretical routes. My argument is in addition to, and not exclusive with, them.
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