30 Mai 2021

Saving the Constitution from Politics

The Israeli High Court of Justice and the Misuse of Constituent Power Doctrine

On May 23, 2021, the Israeli High Court of Justice (HCJ) delivered an important decision setting and defining the limits for the use of Basic Laws – laws of a constitutional ranking – for the purpose of solving temporary political and coalition problems.1)HCJ 5969/20 Stav Shafir v. The Knesset (May 23, 2021) (ISr.). The Basic Laws are supposed to be “the crown jewels” of our constitutional system, yet in Israeli politics they have become an instrumental tool for narrow and everyday political interest, often amended in a temporary manner. The decision, given by a 6-3 majority of an extended bench, now defines some constitutional boundaries for the proper use of Basic Laws.

What constitutional amendments were discussed by the court?

The Likud and Blue-White rotating government was formed in May 2020. According to the Basic Law it had to pass a state budget 100 days later, and if not – the Knesset would have to be dissolved. Defense Minister (and the alternate Prime Minister) Benny Gantz demanded that Prime Minister Netanyahu fulfill his commitment in the coalition agreement, and that a biennial budget be passed for the years 2020-2021, thus ensuring the rotation between them, that was supposed to take place in November 2021. However, Prime Minister Netanyahu demanded a one-year budget for 2020, probably out of a desire to ensure an ‘exit point’ for the rotating government by not passing a budget for 2021.

The political tangle did not come to a solution, and a day before the dissolution of the Knesset, on August 24, 2020, a compromise was adopted and anchored by constitutional amendments, according to which the provisions of the Basic Laws will be temporarily amended so that the deadline for passing the Budget Law for 2020 would be extended until December 2020, and that an amount of 11 billion NIS will be added to finance expenses, for the continuing budget that applied in 2020, at the discretion of the government. These amendments were challenged before the HCJ.

What did the court rule?

The six majority judges, leaded by President Esther Hayut, ruled that the Knesset had misused its power to change the Basic Laws in order to solve political problems. It was held that by using temporary constitutional provisions,  the Knesset (in its constituent capacity) denied the Knesset’s oversight capacity (in its capacity as the legislature), on setting priorities and allocations of public funds for narrow coalition needs of the time.

Basic Law: The State Economy establishes a mechanism designed to incentivize the Knesset to pass a budget law, and as long as a budget law is not passed, then the government can continue to operate under a ‘continuation budget’, subject to various temporal, amount, and purposes limitations. Through these temporary and particular amendments, the Knesset in fact ‘bypassed’ the permanent constitutional arrangement, and misused its constituent authority to change the Basic Laws.

Is this a new legal rule?

Yes and no. No, because the doctrine of misuse of constituent power has had its appearances in earlier judgments.2)For an elaboration, see Suzie Navot & Yaniv Roznai, ‘From Supra-Constitutional Principles to the Misuse of Constituent Power in Israel’ (2019) 21(3) European Journal of Law Reform 403. Yes, because it is a very significant refinement of the existing constitutional doctrine.

From the pioneer judgment of United Mizrahi Bank v. Migdal Cooperative Village of 1995, in which the Supreme Court acknowledged the constitutional status of the Basic Laws, it was accepted that a common feature of all the basic laws is that they are formally titled “basic laws”, without reference to their enactment year (as in ordinary legislation). Otherwise, there is no explicit way to identify basic laws, since Basic Law: Legislation – proposed by several Ministers of Justice over the years in different versions – which was to address the manner in which basic laws are to be enacted, has not yet been enacted. In that judgment, President Aharon Barak raised a question which “concerns the role of future Knesset legislation that might abuse the term Basic Law by designating as such regular legislation with no constitutional content. This question is by no means simple; its answer extends to the very root of the relationship between the constituent authority (of the Knesset) and the judicial authority (of the courts)” [para. 57]. President Barak set this question aside for further consideration.

In a case from 2011, concerning a temporary basic law that changed the annual budget to a biennial one3)HCJ 4908/10 Bar-on, MK v. Knesset, 64(3) PD 275 (2011)., the majority of judges agreed that the test by which basic laws are identified is the morphological characteristic, but left open the question of whether a combined (morphological and substantive) test should apply to identify a basic law. President Beinisch, who found the morphological test “too simplistic”, also held that:

“In certain circumstances, which cannot be determined in advance, it is possible that the enactment of a basic law as a temporary provision may amount to ‘misuse’ of the title ‘basic law’.” [para. 24]

Although at that case the court did not intervene, President Beinisch wrote that temporary constitutional amendments should be used sparingly and in extreme circumstances [para. 28]. Unfortunately, this warning from the Supreme Court was ignored by the Knesset, and over the past few years, there has been an increasing tendency towards ad hoc and temporary amendments of the basic laws.4)See Nadav Dishon, ‘Temporary Constitutional Amendments as a Means to Undermine the Democratic Order – Insights from the Israeli Experience’ (2018) 51(3) Israel Law Review 389.

In 2017, after the government decided, for the fifth time, to approve a biennial budget for 2017–2018 by way of another Temporary Order, this time, an expanded panel of seven judges intervened.5)HCJ 8260/16 Ramat Gan Academic Center of Law and Business v. Knesset (Sept. 6, 2017) (Isr.). Justice Elyakim Rubinstein, writing the majority opinion, held that the repeated amendment of the basic law by temporary orders, time after time and under the current circumstances, constitutes a misuse of constituent power. He stated that “when there is a majoritarian misuse of the constitutional text, the political need retreats before the constitutional core and sanctity, its legal and principal importance” [para. 30]. Instead of striking down the amendment, the court declared a “nullification notice”, according to which it maintained the validity of the amendment yet forbade another future temporary amendment of the Basic Law.6)See Yaniv Roznai, ‘The Israeli Supreme Court as Guardian of the Knesset’ (2018-2019) 51(4) Verfassung  und Recht in Übersee 415-436

So what’s the novelty in the recent judgment?

In this recent case7)Shafir case (n 1).