A stealth constitution
by Jonathan Rosenblum
July 6, 2003
Ruby Rivlin’s recent proposal to limit the Supreme Court’s power to strike down legislation to conflicts with the Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation is no doubt intended to prevent Court President Barak from expanding the Court’s power even further. Barak recently declared that the Knesset has no authority to render decisions of the Central Elections Committee final, relying on the Basic Law: the Judiciary rather than the 1992 and 1994 Basic Laws. (By contrast, American courts have frequently affirmed Congress’s power to make certain administrative decisions non-reviewable.)
Yet the most immediate consequence of enacting Rivlin’s proposal would be to retroactively legitimize Barak’s "constitutional revolution." With Barak’s announcement in the Bank Mizrachi case that the 1992 Basic Laws have constitutional status, Israel became the first country whose constitution was "discovered" by the Supreme Court rather than promulgated by a constitutional assembly.
Yet the passage of those laws lacked the broad public participation and transparency that is the sina qua non of constitutional legitimacy in a democratic society. Only if the constitution can be plausibly said to represent the deepest expression of the will of the people does it attain the status of a superior norm capable of trumping mere legislative enactments.
A constitution passed in secret is a contradiction in terms. As Justice Mishael Cheshin wrote in his Bank Mizrachi dissent, the promulgation of a constitution can be compared to the giving of Torah at Sinai: For regarding the granting of a constitution it shall be said, 'Today you have become a people’ (Devarim 27:9) Or in temporal terms: 'Today you have acquired a norm superior to all others."’ The constitution can only be given, wrote Cheshin, "with complete awareness that the people are willing to accept the yoke of the constitution."
The connection between wide public participation and constitutional legitimacy is lost on large segments of our legal elites. Professor Gavison candidly describes the argument of her colleagues in the upper echelons of the legal world that a "hush-hush" policy must be followed if Israel is to achieve an "enlightened, liberal constitutional format."
The passage of the 1992 Basic Laws was not accompanied by the extensive debate or seriousness associated with constitution-making. Yehudit Karp concluded, in her exhaustive study of the legislative process surrounding their passage, that no more than a handful of Knesset members expressed any sense of a momentous event taking place.
Even Justice Barak has admitted that the process was "almost hidden." The two bills were voted on in the middle of the night, with only 37 Knesset members voting for the Basic Law: Human Dignity and Liberty and 23 for the Basic Law: Freedom of Occupation. The sponsors of the law specifically represented that they would confer no new power on the Supreme Court.
The Court’s interpretative methodology under the 1992 Basic Law also lacks democratic legitimacy. Court President Barak has advanced the claim that the Basic Laws, in addition to the rights enumerated, also include "other unenumerated rights that have no name." And indeed he has spent more energy explicating the title of the Basic Law: Human Dignity and Liberty, than he has the specific rights enumerated, which were deliberately limited to those upon which there existed a wide societal consensus. Clearly the people cannot have expressed their will on unenumerated rights with no name.
Barak goes even further. In importing such amorphous rights into the Israeli system, he has opined that the justices should be guided by the views of that part of the "whose values are universal" and "which is enlightened and progressive." But interpretation of a constitution in terms of the values of a narrow societal elite is fatally inconsistent with a constitution as an expression of the general will of the people.
Enactment of Rivlin’s proposal, at this point, would be the constitutional equivalent of the Arutz-7 law, rewarding past illegitimate activity.
Related Topics: Israeli Supreme Court
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