Legislation: Adjustment period for the constitution and preexisting legislation

The Legislation chapter addresses the the relationship between the Constitution and ordinary legislation, the procedure for amending the Constitution, and the dynamic these create between the Legislature and the Judiciary. This chapter also defines the procedure for enacting primary legislation and regulations.

The chapter on legislation, as proposed by the Neeman Commission, defines the Knesset as the body authorized to compose a Constitution and Amendments.

Currently, the Knesset passes all primary legislation, including Basic Laws, with a series of three requisite readings. This might suggest that the same would be the default process for constitutional legislation.

Committee Chairman MK Michael Eitan pointed to two reasons to include a referendum in the initial constitutional process, which would not apply to the amendment process.

• A public referendum ratifying a constitution would serve to educate the public. Currently, only a small and specialized segment of the population understands that Israel functions based on constitutional principles.
• A public referendum is necessary in order for the people - the true sovereign - to empower the Knesset to act henceforth as the Constitutional Convention.

The Committee discussed other elements of the initial constitutional process, and did not decide whether initial passage of a constitution would require a special majority or other special procedures, as discussed below regarding amendments, though a preference emerged for the requirement of a referendum to ratify the Constitution.

The Committee discussed the procedure for introducing Amendments, with the Neeman Commission recommending amendments be introduced by the Government or the Knesset Constitution Committee. Others suggested a mechanism by which a certain number of MKs or signatories on a public petition would also suffice to introduce amendments, thereby forcing the Government to more publicly address popular initiatives to which it was opposed. Yehoshua Shofman, the Deputy Attorney-General for Legislative Affairs, pointed out that this would make the requirements pertaining to the introduction of constitutional amendments less demanding than for ordinary legislative proposals.

Amendments would, according to the Ne’eman Commission proposal, require a special fourth reading in the Knesset, six months after the third reading. An absolute majority would be required for passage of the third reading, and a special majority of 70 votes would be required for passage of the special fourth reading.

Prof. Shimon Shetreet of the Hebrew University said that the requirement of a special fourth reading, with a waiting period, is desirable as it serves not to prevent the Knesset from exercising its will, but rather to prevent legislative coups.

Prof. Arye Carmon, President of the Israel Democracy Institute, proposed requiring that a special fourth reading of any proposed amendment be held only after new Knesset elections.

Former Supreme Court Justice Itzhak Zamir suggested omitting from the Legislation chapter of the Constitution any mention of the Knesset’s role as Constitutional Convention, and leaving the decision on the method for passing constitutional amendments to a later stage in the process of composing the Constitution.

MK Chaim Oron (Meretz) cited previous proposals, which involved some element besides Knesset approval. He did not desire removing the final decision-making authority from the hands of the Knesset, but did see value in requirements designed to ensuring public discourse in the amendment process. He recalled a proposal to involve former MKs and Judges in this process.

MK Oron proposed the creation of a permanent body, which would advise the Knesset on constitutional amendments, prior to their final readings in the Knesset. This body would also serve as a preemptive judicial reviewer of proposed legislation, acting before the legislation is passed and the Supreme Court must step in. MK Avraham Burg (Labor) stated that the existing institutions of the Attorney General and the Legal Advisor to the Knesset, which are already statutorily established institutions, could better fulfill the function of advising the Knesset on matters of potential judicial review.

Eliezer Nahir, a private citizen invited to present his views to the committee, suggested that the Knesset set a time at which its role as the Constitutional Convention will end, followed by new, regional, elections to a Constitutional Convention separate from the Knesset, responsible for future amendments.

MK Eitan replied that the Constitutional authority of the Knesset to pass amendments, in its continuing role as Constitutional Convention, will derive clearly and incontrovertibly from a mandate of the people, as the Constitution will be enacted by the people’s elected representatives - the Knesset - and possibly by a public referendum as well. Electing a new Constitutional Convention, separate from the Knesset, does not seem realistic, and the political reality, which necessitated assigning this ongoing role to the Knesset, will not necessarily change with the ratification of the Constitution.

Dr. Amnon Reichman of Haifa University cited the Canadian Supreme Court’s ruling that the people of Canada are not limited to the amendment procedure set forth in the Canadian Constitution, and they or their elected representatives could by other means amend the constitution.

Eyal Zandberg, deputy legal advisor to the committee, suggested that it is difficult to view a people which changes the constitution, using a method other than that set forth in the constitution, as having created a constitutional amendment; their actions would more realistically be described as regime-change.

Dr. Reichman replied that if the power to amend the constitution is not explicitly limited to Knesset, it might be possible to pose a clear constitutional question to the people, and receive in answer a constitutional amendment. MK Eitan warned of the danger, if this were possible, of power grabs by politicians claiming to be acting on behalf of the people.

The Committee considered delineating, within the constitution, the areas which the Constitution is meant to cover.

Dr. Yitzhak Klein of the Israel Policy Center recommended that no description of the contents of the constitution be given, in order to avoid creating pretexts for future limitations on the Knesset’s power in composing amendments.

Eyal Zandberg cited the French and German examples of judicial review of constitutional amendments, (pointing out, however, that these are rare examples).

Deputy Attorney-General Yehoshua Schoffman stated that delineation of the contents would be meant only to clarify that the Constitution is not intended to include trivial matters. It would not be meant to allow the court to block future amendments. Amir Avramovitz of the Israel Democracy Institute added that any amendment ratified by the Constitutional Convention would, by definition, fall within the proper realm.

Dafna Ben Porat of the Knesset Research and Information Center suggested using a preamble to set out the ideas and subject matter to be found in the Constitution, thereby reducing the likelihood of inadvertently limiting the Knesset’s authority to amend the constitution.

However, Dr. Amnon Reichman predicted that even were certain parts of the constitution meant to be declarative and non-operative, the Supreme Court would find it difficult to accept the idea that the document representing the fundamental ideals of the state is meant to be unenforceable, even in its demarcation of its own contents.

MK Burg predicted that the Supreme Court would be less likely to intervene with judicial legislation, should the Knesset demonstrate that it treats the Constitution as a highly stable document. This stabilization could be accomplished by placing further prerequisites upon constitutional legislation, for instance, the requirement of a special majority for early readings of constitutional legislation.

MK Eitan suggested that if the Knesset’s authority to freely amend the Constitution is in question, perhaps the amendment procedure should include a referendum. He clarified that this is not his preference.

MK Haim Oron (Meretz) stated that if all amendments are, by definition, viewed as properly belonging within the subject matter of the constitution, and there exists no possibility of Judicial oversight of amendments, it would be preferable to set stringent requirements for passage of amendments. In this dynamic, only the degree of difficulty in passing an amendment - and not judicial review - would protect against undesirable constitutional amendments.

MK Eitan replied that aside from the question of what sort of subject matter the Supreme Court would, or would not, decide to bar as a constitutional amendment due to a written demarcation of the Constitution’s contents, there would always be certain values which the court would defend as basic to a democracy, even to the point of exercising judicial review of constitutional amendments.

Currently, Israeli legislation does not definitively stipulate a broad status of supremacy of Basic Laws over ordinary legislation . (The principle of superiority of Basic Laws is established, narrowly, in certain Basic Laws). Rather, the Israeli Supreme Court, similarly to the US Supreme Court, has established the principle of judicial review in case law.

The chapter on Legislation would formally establish the principle of, and procedure for, judicial review.

The chapter on Legislation will protect, or ‘entrench,’ the Constitution, requiring a special majority of 70 MKs in order to pass legislation annulling or contradicting a Basic Law.

Professor Yaakov Neeman predicted that passage of the chapter on Legislation would ease the process of legislating all future constitutional amendments, in that it will remove uncertainty regarding Constitutional legislation. There will be no doubt regarding the ability of the Knesset to pass legislation with superior status. Nor will there be uncertainty regarding the process by which the Knesset may accomplish this, or the technical consequences of this supremacy.

Furthermore, the Constitution will be conferred with broader public legitimacy than currently enjoyed by Basic Laws, as the special process - particularly the six-month waiting period before the special fourth reading - stipulates conditions which bring about appropriate deliberation and public discourse.

The committee discussed whether through this section of the Constitution the Knesset would be ceding its power as supreme legislature.

MK Haim Oron rejected the assumption that the Knesset would be relinquishing power. As Professor Neeman explained, the lack of a constitution creates a vacuum, which has been filled by the courts. The constitution simply redefines the balance of power, and the Knesset thereby creates a net gain in its own power.

Michael Eitan stated that in composing the Constitution, the Knesset must look beyond its own self-interest, and engineer a document in the best interest of the public, even if this means relinquishing certain powers and subjecting itself to potential judicial invalidation of its legislation.