Constitutional Legislation

On April 29, 2004, the Constitution, Law, and Justice Committee of the Knesset met to consider sections of the proposed constitution concerning the Supreme Court. Among the participants were Supreme Court President Aharon Barak and former Supreme Court Presidents Meir Shamgar and Yitzhak Zamir.

Constitutional Committee Chairman MK Michael Eitan (Likud) described the committee’s working procedures and its accomplishments thus far. He proposed that the committee use the current Basic Law: the Judiciary and the Ne’eman Commission’s suggestion for a Basic Law: Legislation as starting points for the chapter on the judiciary, nothing that the basic principles in the Ne’eman Commission’s proposal were acceptable.

The committee opened discussions on the role of the Supreme Court with several questions:

1. Should judicial review be centralized (only the Supreme Court has the authority to strike down legislation) or decentralized?
2. Will Supreme Court rulings bind the courts outside the ordinary justice system such as religious tribunals, military courts, or the labor court?

President of the Supreme Court Aharon Barak opened by noting that he would express his personal opinions, but could not speak on behalf of the judiciary. He also mentioned that since he was set to retire in two years, there can be no suspicion of personal interest. He expressed his support for a constitution, thanking the committee for its work thus far, and said it was time to stop writing Basic Laws, and write a full constitution instead.

Barak expressed his belief that once the constitution is written, it should somehow be brought to the people for approval. This does not necessarily mean a referendum, he said; that is only one possible method, and in his view not necessary to grant the constitution super-legal status.

On the topic of centralization vs. decentralization of the powers of judicial review, Barak’s opinion was that in the long term, the proper arrangement is a non-centralized one. Every court should be able to make constitutional decisions, but these should apply only inter partes, that is, to the parties in that particular dispute. In the long term this is the usual and correct arrangement, its main advantage lying in the fact that it will force each judge to internalize the constitution. In centralized judicial systems, he said, with a constitutional court at the center, the lower courts are insufficiently constitutional.

In the 1970’s, however, Barak supported the centralized approach, believing that once the constitution is adopted, shifting Israel from a Parliamentary democracy to a Constitutional-Parliamentary democracy, it may be difficult for the country to adapt to the sudden change. European legislators, he said, take it for granted that there is a greater law above them; Israelis do not naturally intuit the concept of super-legal status. Barak added that we have been a constitutional-parliamentary democracy since the "constitutional revolution" in the early 1990s. Barak also sympathized with Knesset Speaker Reuven Rivlin’s complaint that a magistrate court should not be able to repeal primary legislation for "constitutional reasons." But this can happen only when the constitutional revolution has not been fully internalized, he said.

To avoid these difficulties, Barak prescribed a centralized system around the Supreme Court. In ten or twenty years, once the constitution has been internalized, we can correct and adjust to a diffuse system. However, he said, he is not dedicated to this opinion on the matter, and said that it was a decision for the Knesset to make as it sees fit.

On the matter of the applicability of precedent, Barak explained that he was responsible for the inclusion of the topic of stare decisis in the Basic Law: the Judiciary. He had insisted on its inclusion because of experience which led him to believe that if it were not protected in the Basic Law, a magistrate court judge would feel no compunctions about rejecting a Supreme Court ruling. The lower courts would be unlikely to accept unilaterally declared authority, he said, and have internalized the principle of stare decisis and the primacy of the Supreme Court thanks only to their inclusion in the Basic Law. He noted that if stare decisis is explicitly not protected in the constitution, the document will lose all of its binding power.

MK Ophir Pines-Paz asked what happens when the Supreme Court overturns its own precedent; Barak answered that a Supreme Court ruling would prohibit any law or executive action in contradiction, but the Supreme Court could overrule a previous decision. That being said, the Court theoretically has less free reign to use its discretion in constitutional issues than it does in making decisions based on non-tangible, fluid social mores.

When a piece of legislation has been struck down, Barak explained, the Knesset naturally has the power and authority to gain the upper hand by amending the constitution. This is the legislature’s trump card, because the Supreme Court cannot write legislation, it can only interpret.

Barak responded to the question about whether stare decisis applied to the non-standard courts by saying he disagreed with the notion some hold that the labor courts are not bound by precedent. They would be bound by constitutional decisions, he said, made by the supreme court. Obviously, the Supreme Court has no jurisdiction to rule on the religious tribunals’ understanding of Jewish law, but in those areas where we accept their ruling as legally authoritative they must be subject to the Supreme Court’s precedents as well.

Committee Chairman MK Eitan suggested parsing section 15 of the Basic Law: The Judiciary into parts to determine what changes were desirable, but Barak preempted this question by asking if the committee should not consider simply adopting section 15 as is into the draft constitution. It is awkwardly written, he allowed, and includes layers of legal and political history. The clauses on the powers and status of the High Court of Justice, for instance, evolved out of a history in which the High Court of Justice was nothing more than a small administrative court under the British system, explained Barak. He said he was torn, but that the historical perspective led him to think we should include the section as it is. Thousands of precedents, he said, have been at tension with each other since as early as 1922 based on this section roughly as it currently stands. It is too much a part of the country’s legal culture and education. It would be best, he said, not to touch it, despite bits that are ugly and even irrelevant. If, he added, elegance is of the utmost importance to you, then make your changes extremely carefully.

MK Eitan suggested reducing all of section 15 - as it is - to regular law. Would that satisfy both desires, he asked? Barak considered the possibility, but advised that the worst of both worlds would be to leave section (C) in the constitution and relegate the rest to regular law. Former President Zamir’s suggestion, to which Barak had fewer objections, was to include a modified version of clause (B) and (C) together, and then a provision that "The details shall be established in the law."