In light of Israel’s 77th Independence Day, I thought it would be fitting to revisit the foundations of the State of Israel’s system of governance and clarify a few key points.
The state of Israel was established on May 14, 1948. At the time, there was a broad consensus among the leadership in favor of drafting a supreme constitution, modeled after the American example. Accordingly, the Declaration of Independence stated that elections would be held for a constituent assembly tasked with drafting the constitution. However, a combination of factors – primarily the fundamental disagreements between various political factions in the Knesset – led to the deferral of the constitutional project to a later, unspecified date, formalized in a Knesset resolution known as the “Harari Decision”.
In the absence of a constitution, the Knesset was universally regarded as the supreme authority, in fact, sovereign, based on the British model of governance. The High Court of Justice (HCJ) itself recognized the fact, in countless Court rulings over the years. As early as the founding period, some attempted to argue that the Declaration of Independence should be treated as a constitutional document, empowering judges to invalidate legislation. However, the Court rejected this claim, holding that the Declaration “does not constitute a constitutional law that effectively determines the existence or revocation of various ordinances and laws.” Laws enacted by the Knesset were considered entirely non-justiciable.
The notion that the Knesset was the all-powerful governing body was so deeply entrenched, that no one doubted that Court had no authority to intervene, even should it infringe upon human rights. So, for instance, writes Supreme Court President Sussman: “The all-powerful legislator may permit harm to citizens with no judge nor jury”. And Justice Berenson: “It is beyond any doubt that according to the constitutional regime prevailing in the state, the Knesset is sovereign and has the power to legislate any law and fill it with any content it sees fit. It is entirely inconceivable to consider invalidating a Knesset law or a provision in a Knesset law that was legally enacted, on any grounds whatsoever”.
In 1989, Aharon Barak discussed this very question in HCJ Laor, and ruled that the Knesset is the supreme and exclusive authorizing body, invoking the English system of government. Even within the Bank Mizrahi ruling that created the constitutional revolution, the Court declared the Knesset to be the source of its authority to review regular laws that contradict entrenched Basic Laws. As Barak later expressed: “We can invalidate Knesset laws only after the Knesset itself enacted the Basic Laws and granted them supra-constitutional status”.
However, with regard to Basic Laws, nothing was changed. The Knesset never granted the Supreme Court the authority to review their validity. In fact, as late as 2003, Justice Barak declared during a Knesset deliberation that “The Knesset may stipulate in a Basic Law that there is no constitutional judicial review, and the Court could not overturn such a stipulation”.
Until that point, the Court had acknowledged its subordination to the Knesset – at least in theory.
On the backdrop of this historical account, the great juristocratic deception is revealed in all its repugnance. In its ruling on reasonableness, the Court finally abandoned the disingenuous attempts to rely on the Knesset’s authorization. By effectively rewriting Israeli jurisprudence and its very history through lengthy and hollow pontifications, the Court felt emboldened to declare its own independence: “We, the Courts”.
On the 77th day of Independence, it is time for the people- the demos– to awaken and demand their sovereignty back. That is what we call democracy.
Adv. Shimon Nataf, Senior Fellow at Kohelet Policy Forum, is completing his doctorate degree at Columbia University
