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The Courts and the Legislative Supremacy of the Knesset

Published online by Cambridge University Press:  12 February 2016

Eliahu Likhovski
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Israel, unlike most modern States, does not have a Constitution embodied in a formal document which lays down the basic political assumptions on which the system of government is founded, and which is considered the “supreme law of the land”. The student of Israel's Constitution must, as in the case of the British Constitution, collate his country's Constitution, including its unarticulated “major premises”, from a close study of the practical workings of the system of government and from a number of diverse sources of varying legal force.

From a study of the workings of the system of government, Knesset (Parliament) legislation and the decisions of the courts, it would appear that Israel's courts, lawyers and others have asserted, almost without demur, the doctrine of the legislative supremacy of the Knesset as the underlying unarticulated major premise of Israel's Constitution. In accepting that assumption they seem to have chosen to follow the constitutional trail blazed by their British forerunners. This article is intended to test that assumption and to establish its exact application in the legal system.

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Israel Law Review , Volume 3 , Issue 3 , July 1968 , pp. 345 - 367
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1968

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References

1 Cf. D.C.M. Yardley, Introduction to British Constitutional Law, (2nd ed.) Chap. I; Wade and Phillips, Constitutional Law (Sixth ed.) Chaps. I & II.

2 (1948) 1 L.S.I. 3.

3 1 L.S.I. 6.

4 See the preamble to the Law and Administration Ordinance, 1 L.S.I. 7.

5 See Constituent Assembly (Transition) Ordinance, 1949, sec. 3 (2 L.S.I. 81).

6 (1949) 3 L.S.I.3. This attribute was intentionally left unchanged when in 1958 the Knesset adopted the Basic Law: The Knesset, sec. 1 of which describes the Knesset as “the Parliament of the State” (12 L.S.I. 85). See 23 Divrei HaKnesset 874.

7 In practice the Israel Constitution does not comply with the strict doctrine; see Klinghoffer, , Administrative Law (in Hebrew) 26–36Google Scholar. He says at 26–27:

“In Israel as in England, in the absence of a formal [rigid] Constitution, there is no way to secure the separation of powers by means which bind the legislator.”

8 On the nature of Legislatures, see generally Wheare, Legislatures.

9 But cf. Klinghoffer, , “On Emergency Legislation in Israel”, Sefer Hayovel Le Pinhas Rosenne (ed. Cohn, Haim) 86Google Scholar, “Legislative authority means the authority which has the supreme and general power to enact laws”.

10 Dicey, , Introduction to the Study of the Law of the Constitution (9th ed.) with Introduction and Appendix by E.C.S. Wade (1945)Google Scholar, Part I. Dicey was also concerned to show that Parliamentary Sovereignty is bounded by “internal” and “external” limitations. It is readily admitted that the Knesset is bounded by “internal” and “external” limitations in the same general sense as used by Dicey.

11 For a recent formulation, see Mitchell, J.D.B., “Sovereignty of Parliament—Yet Again” (1963) 79 L.Q.R. 196Google Scholar (herinafter “Mitchell”) at 208 et seq.

12 See generally, Basic Law: The Knesset, 1958 (12 L.S.I. 85).

13 See generally, Basic Law: The President of the State, 1964 (18 L.S.I. 111).

14 See generally, Transition Law, 1959 (op. cit.)

15 Judges Law, 1953 (7 L.S.I. 124) Courts Law, 1957 (II L.S.I.) 157; see generally, Baker, , The Legal System of Israel (1st ed.) pp. 106–27Google Scholar.

16 Cf. Harari, J., M.K., , 21 Divrei HaKnesset 5.Google Scholar

“I doubt whether there is yet a Constitution in the entire world, wherein so much power is given to a single institution, so sovereign, so omnipotent.… I must declare that I am sometimes filled with anxiety when I regard the immense powers of the Knesset.”

He therefore urged the establishment of a second reviewing Chamber, as a possible curb on the vast powers of the Knesset.

17 Sec. 23.

18 It is interesting to note that when the Transition Bill, 1949, was being debated, it was proposed by Dr. Z. Warhaftig, M.K., to enjoin the Knesset from enacting ex-post facto criminal legislation. He said:

“… I would like to raise a basic constitutional problem. My proposal is to add a sec. 2 (c) which would provide that criminal sanctions should not apply to acts which when actually committed were legal. The position now is…that in accordance with sec. 10 of the Law and Administration Ordinance every law could be made retroactive…” (1 Divrei HaKnesset 33). He explained that the matter had been raised by him in the Committee considering the draft Bill and some Members had opposed his view “being of the opinion that Parliament could pass an Act with retroactive effect.” Dr. Warhaftig's proposal was rejected like so many other constitutional issues to await a “permanent Constitution” (ibid. p. 34).

19 (1962) 16 P.D. 2033.

20 4 L.S.I. 154.

21 (1962) 6 P.D. 375 at 385. This was a case on the retroactive effect of local by-laws imposing municipal rates. But Agranat J.'s proposition was made generally.

22 11 H.L. Cas. 108 (9 E.R. 1033).

23 Rabbinical Courts (Validation of Appointments) Law, 1952. (6 L.S.I. 62.)

24 Sharia Courts (Validation of Appointments) Law, 1953. (7 L.S.I. 42.)

25 The Wage Protection (Amendment No. 3) Law, 1964, sec. 14. (18 L.S.I. 34.)

26 Cf. The Tenant's Protection (Amendment No. 2) Law, 1956 (II L.S.I. 29) sec. 15, and secs. 1 and 2 of the Tenant's Protection (Amendment No. 2) Bill, 1956, and see 262 Hatza'ot Hok 88 at 93.

27 2 L.S.I., 115.

28 Secs. 1 and 2. See, as well, the new Amnesty Law, Sefer HaHukim (1967) 82.

29 Shlifkowitz v. Local Council Bat Yam (1959) 13P.D. 210 at 213, Witkon, J.: “…sec. 11 of the Law and Administration Ordinance must be deemed to have re-enacted the entire Mandatory law and incorporated it, by way of general reference, into Israel's Ordinance.”Google Scholar

30 The question of delegated legislation and Knesset supervision thereof, which is an aspect of the Knesset control of the Executive generally is not dealt with in this study.

31 Sec. 9 (b).

32 Sec. 9 (c).

33 See generally, Klinghoffer, “On Emergency Legislation in Israel”, op. cit. 86 et seq. On May 19, 1948, five days after the Proclamation of Independence, the Provisional Council duly declared the existence of “a state of emergency”, (Iton Rishmi, 1948, p. 6.) Under sec. 9 (d) the Knesset can declare the end of a state of emergency; it has, however, not done so up to the present.

34 Dicey, op. cit. 60.

35 Courts Act, 1957, sec. 33, and cf. Bentwich, , “The Migration of the Common Law: Israel”, 76 L.Q.R., 64Google Scholar, 65 et seq., and see further, Baker, , “The Reception and Development of Common Law and Equity in Israel”, Lawyers Convention in Israel (1959) (hereafter “LCI”) 24 at 37Google Scholaret seq.

36 See Bassul v. Minister of the Interior (1965) 19 P.D. 337, 349.

37 (1951) 5 P.D. 801; I.S.J. 75. On the question of justiciability generally, see “Justiciability” by Marshall, Geoffrey, Oxford Essays in Jurisprudence, Chap. X, pp. 264–87Google Scholar and Witkon, , “Justiciability” (1966) 1 Is. L.R. 40.Google Scholar

38 3 L.S.I. 3.

39 Jennings, , The Law and the Constitution (3rd ed. 1943) 99et seq.Google Scholar

40 The matter has been treated by Witkon, op. cit. 48–53.

41 (1951) 5 P.D. 523, 529.

42 But for a recent case, where the Court ordered a Minister to promulgate regulations under a law, see Oppenheimer v. Minister of the Interior (1966) (I) 20 P.D., 30–38; an unofficial translation appears in (1966) 1 Is. L.R. 462–78 followed by a discussion of the issues involved.

43 The Bassul case, op. cit. at 349.

44 Silberg, J. in a minority judgment in Joseph Lubin v. Tel Aviv-Jaffa Municipal Council in (1958) 12Google ScholarP.D. 1041 at 1065 et seq. The majority view was confirmed after further argument: Tel Aviv-Jaffa Municipal Council v. Joseph Lubin, (1959) 13 P.D. 118. For an intermediate view, cf. J., Cheshin in Mituva Ltd. v. Jacques Casim Co. (1952) 6P.D. 4 at 11.Google Scholar

45 Sefer v. Minister of Interior (1956) 10 P.D. 1213, 1221.

46 Cf. Scott, , The New Zealand Constitution, 41Google Scholaret seq.

47 See Baker, , Drafting and Interpretation of Documents (stenciled ed.) (in Hebrew) 425Google Scholaret seq. and the cases there cited.

48 Berinson, J. in Custodian of Enemy Property v. Samara and ors (1956) 10Google ScholarP.D. 1925 at 1934.

49 Baker, and Baker, , Drafting and Interpretation, (1963 ed.) (in Hebrew) 122Google Scholar; cf. Ratsavi v. Ratsavi (1955) 10 P.M. 472.

50 Cf. ibid., n. 49.

51 p. 18 below.

52 A.G. v. Levitan (1950–52) 3 P.M. 195, 200.

53 Per Olshan, P., Joseph Lubin v. Tel Aviv-Jaffa Municipality (1958) 12 P.D. 1041 at 1059Google Scholar.

54 The subject has been treated exhaustively by Baker in LCI, 35. Cf. Baker, , Drafting etc. at 441Google Scholar, where reference is made to a Palestine case deciding that a modified version of the rule in Heydon's Case applied in Palestine (Gotfreed v. Levi, S.D.C. 620).

55 Per Witkon, J., Biderman v. The Director of Customs and Excise (1955) 9P.D. 1699 at 1707.Google Scholar

56 The Eichmann case, supra n. 19 at 2041.

57 A.G. v. Smueloff (1955) 9 P.D. 822.

58 Per Etzioni, J., Koltai v. The Commissioner of Stamp Duty (1959) 18P.M. 94 at 100Google Scholar. The learned judge refers for his authority to Broom's Legal Maxims (10th ed., 1936) 382.

59 (1958) 12 P.D. 1041.

60 11 L.S.I. 16.

61 At 1051.

62 At 1059.

63 Sussman, J. in the same case at 1079, said:

“My two brethren are agreed that the legislator does not usually intend to inflict an injury on the person of the citizen or his property without allowing for judicial proceedings, to which such person has been duly summoned to enable him to have his say. The State of Israel, it is said in the Declaration of Independence, ‘is based on freedom, justice and peace’. These words would be empty of meaning and the rule of law would collapse if the (legislative) authority were not guided by this principle. Yet the omnipotent legislator may authorize an infliction of an injury on the citizen without the judgment of a court. Has he done so in the present case?”

He adds that the onus of proving a departure from the rule of law is on the person claiming such departure and concludes that no such departure was in fact proved.

64 Cf. Wade (6th ed.) op. cit. 50–52.

65 Cf. Wade, Dicey op. cit., Introduction at XLI: “legal sovereignty is not sovereignty as such, but merely a lawyer's rule which is accepted and acted upon because it suits political conditions in a State that the unrestricted power of law-making should rest in Parliament alone.”

66 The two questions, although distinct, are governed by the same rule and will accordingly be treated alike.

67 With the possible exception of the courts, there does not seem to exist any constitutional organ in Israel, which can act as a reviewing authority of legislation. Accordingly, possible effects alone of “judicial review” will be treated here.

68 Wheare, Legislatures, Chap. 6.

69 See Akzin, , “Fundamental Law and Entrenched Laws in Israel” (1961) 17HaPraklit 230.Google Scholar

70 Indian Constitution Act, sec. 13. See Setalvad, M. C., The Common Law in India, 184Google Scholaret seq.

71 Marbury v. Madison (1813) 1 Cranch 137. For a history of the case see Warren, Charles, The Supreme Court in United States History, 230–68Google Scholar.

72 See Akzin, op. cit. 230 at 236, note 21.

73 Constituent Assembly (Transition) Ordinance, 1949. (2 L.S.I. 81). Cf. Rubinstein, A., “Israel's Piecemeal Constitution”, Studies in Israel Legislative Problems, 16 Scripta Hierosolymitana (Jerusalem, 1966) 201.Google Scholar

74 See Steinberg, , “Another Act or a Supreme Legal Form”, 16 Molad 284.Google Scholar

75 Cf. The Bribery Commissioner v. Ranasinghe [1964] 2 All E.R. 785.

76 See the Basic Law: The Knesset, 1958, secs. 4, 44–46 (12 L.S.I. 85).

77 The term is borrowed and adapted from Mitchell, supra n. 11 at 202.

78 Cf. Heuston, , Essays in Constitutional Law (1961) 23Google Scholar.

79 Inter alia, sec. 11, Transition to the Second Knesset Law, 1951, sec. 11 (5 L.S.I. 95), Knesset Voters Register Law, sec. 53 (13 L.S.I. 28).

80 Basic Law: The Knesset (Amendment No. 3) 1959 (13 L.S.I. 228).

81 Sixty one out of one hundred and twenty.

82 And see for a further limitation sec. 46 considered below.

83 Mr.Nir-Rafalkes, , M.K., 23 Divrei HaKnesset 897.Google Scholar

84 Dr. Moshe Sneh, M.K., ibid. 897.

85 Proposed by Mr. I. Raphael, M.K., ibid., 989. The proposal was based on the assumption that the existing proportional representation system should not be changed except by at least the majority of the electorate, which under the traditional proportional representation system is represented by sixty-one Knesset Members.

86 See 23 Divrei HaKnesset 900.

87 It is notable that almost no debate followed on the constitutional implication of the entrenchment of secs. 44–45, ibid. 925, but see Dr. M. Sneh, M.K., at 927.

88 (13 L.S.I. 228.)

89 Divrei HaKnesset 2960. It is to be noted that secs. 44 and 45 of the Basic Law were adopted practically without any debate. Cf. 20 Divrei HaKnesset 925; see, however, Mr. B. Azania, M.K., ibid, at 926.

90 Mr.Zadok, H., M.K., , 27 Divrei HaKnesset at 2961.Google Scholar

91 Ibid.Cf. Witkon, op. cit. at 55, referring to these sections, says:

“Opinions are divided as to the effectiveness of these ‘entrenched’ clauses. Some, including Professor Akzin, firmly considered them effective, whilst others deny their validity. The latter school of thought regards an entrenched clause in a law as being repugnant to the traditional English view of parliamentary sovereignty (which is also current in Israel)—whereby Parliament can do everything except bind its successor.”

With judicial caution, Witkon J. does not commit himself to either view. It is to be noted, however, that Professor Akzin does not state that these sections are effectively entrenched but that a written Constitution can be adopted and that it can be properly “entrenched”. To that extent, Witkon concisely represents Professor Akzin's view. However, Professor Akzin is decidedly of the opinion that these particular sections are not effectively entrenched: (1961) 17 HaPraklit 230, 236 et seq. and see Akzin, , Lawyers Convention in Israel (1959) 91.Google Scholar

92 Cf. Phillips, Hood, Constitutional and Administrative Law (3rd ed.) 73.Google Scholar

93 See Witkon, op. cit. at 53 et seq. The Bassul case, ubi supra, goes very near to implying that the courts will not presume to hold that a “statute” appearing on the statute book is not a “statute”. But it would seem that in that case the court was not dealing directly with the point under discussion. Still the case shows the attitude of the court as to where to draw the boundary line of the judical province. According to this view the competency of the courts does not extend to the point where it will upset the will of the majority of the Knesset acting in the capacity of representatives of the electorate. (See particularly ibid. 348–50.) It is submitted, however, that the opinion of the Court on that point was obiter.

94 Generally on the question of the application of Art. 46, see Tedeschi, , Studies in Israel Law (1960) 166–237.Google Scholar

95 Tedeschi, op. cit. 201–02. “Generally speaking, there is no gap in the law where the legislator refrains from making provisions on any matter either because he desires a negative regulation of that matter…or because he wants the regulation of that matter to be left to other social forces.…If his silence is attributable to either of these reasons, there is no gap in the law.”

96 See Wade, , “The Basis of Legal Sovereignty” (1955) C.L.J. 172CrossRefGoogle Scholar; Jenning, , Law and the Constitution (5th ed.) 156Google Scholaret seq.; Mitchell, op. cit., 196; Heuston, op. cit. Chap. I; Marshall, G., Parliamentary Sovereignty and the Commonwealth (1957)Google Scholar.

97 Wade, op. cit., cites (at 175) in support of the orthodox or traditional theory, the well-known authorities. Vauxhall Estates Ltd. v. Liverpool Corporation [1932] 1 K.B. 733, Ellen Street Estates Ltd., v. Minister of Health [1934] 1 K.B. 590; British Coal Corporation v. The King [1935] A.C. 500.

98 Wade, op. cit. 189:

“What Salmond calls the ‘ultimate legal principle’; is therefore a rule which is unique in being unchangeable by Parliament—it is changed by revolution, not by legislation; it lies in the keeping of the courts and no Act of Parliament can take it from them.”

99 Heuston, op. cit. 6, and cf. Mitchell, op. cit. at 208 et seq.

100 See examples cited by Dicey, op. cit. 62–65 and “explained away” by Jennings (5th ed.) 168 et seq.

101 See Mitchell, op. cit. 214–15.

102 The Parliament Act, 1911, to cite a single example, is undoubtedly a compositional statute. It deals with the composition of Parliament for certain legislative purposes. Yet its substantive political origins and implications are too well known to require any elaboration.

103 de Smith, , Judicial Review of Administrative Action, 356.Google Scholar

104 Ibid. 356, 357 and the authorities there cited, and Hughes & Vale (Pty.) Ltd. v. Gair (1954) 90 C.L.R. 203, 205; Mitchell, 221, and the authorities there cited; see particularly Cowen, Z., “The Injunction and Parliamentary Process” (1955) 71, L.Q.R. 336.Google Scholar

105 See Cowen, D. V., “Legislature and Judiciary” (Part II) (1953) 16 M.L.R. 273CrossRefGoogle Scholar, and see Trethowan v. Feden (1930) 31 S.R. (N.S.W.), 183; but see Z. Cowen, op. cit. 336, and see The Bribery Commissioner v. Ranasinghe [1964] 2 All. E.R. 785.

106 Houston, op. cit. 28. It is arguable that Heuston would consider that the Courts may enjoin Parliament from proceeding with an “illegal” act; see ibid. 16. Heuston would consider presumably that the latter statute is no statute at all, ibid. 23.

107 Cf. Mitchell, op. cit. 218 et seq.

108 Per Berinson, J. in A.G. v. Matana (1962) 16Google ScholarP.D. 430 at 467, and cf. Silberg J. in the Bassul case where he concurs in the end with Berinson J.

“not only because we are closer to the English (than to the American) cases but particularly because the English view secures the separation between these powers [meaning the legislative and, judicial]”. As to Berinson, J. in the Bassul case, see 130Google Scholaret seq.

109 Cf. Witkon, op. cit. at 55.

110 Cf. Mitchell, 218 et seq.

111 (1951) 5 P.D. 801 I.S.J. 75.

112 de Smith, op. cit. 356, and cf. id. “Parliamentary Privilege and the Bill of Rights” (1958) 21 M.L.R. 405.

113 See sec. 1 (b) of the Law and Administration Ordinance, 1948, and now sec. 19 Basic Law: The Knesset, 1958.

114 A test formulated by JusticeFrankfurter in, Joint · Anti-Refugee Committee v. Att. Gen. of the U.S. 71 S. Ct. 673Google Scholar, to determine the “justiciability of an issue” adopted by Zmoira, P. in the Jabotinsky case at 813.Google Scholar

115 See Members of the Knesset (Immunity, Rights and Duties) 1952, sec. 1.

116 See Basic Law: The President of the State, 1964, sec. 11 (18 L.S.I. 112).

117 Cf. Ashby v. White (1704) 2 ld. Raym. 938 and cf. Hanbury, Modern Equity (7th ed.) 581 (discussing Harper v. Home Secretary [1955] Ch. 238. It is, however, doubtful whether any persons could claim a locus standi pursuant to the provisions of sec. 4 of the Basic Law: The Knesset (see Witkon, op. cit. 42 et seq.).

118 (13 L.S.I. 132).

119 See A. Witkon, op. cit. at 58–9.