Basic Law: Legislation

On the eve of the Passover holiday the Ministry of Justice published a legal memorandum relating to Basic Law: Legislation.

Since the First Knesset failed to formulate a constitution for the State of Israel, as stipulated by the Proclamation of Independence, the Knesset has passed a series of Basic Laws on various topics. Once all the Basic Laws have been passed they will together constitute Israel’s constitution.

Basic Law: Legislation is one of a handful of Basic Laws that have not yet been completed, due largely (though not exclusively) to reservations among the religious parties, which fear that such a law, which ignores halacha, will be used to the detriment of the religious community.

Since 1975 several drafts of Basic Law: Legislation have been proposed, but none got beyond the first reading in the Knesset.

All the drafts dealt with the Knesset as the legislative authority, even though Basic Law: the Knesset defined it only as “The House of Representatives.” They all dealt with the Knesset’s role as the Constituent Assembly with the authority to prepare a constitution; the supremacy of Basic Laws over ordinary legislation; the manner in which Basic Laws, Government Bills, Committee Bills and Private Members’ Bills are passed; the Knesset’s supervisory role over the issuing of regulations (i.e. subsidiary legislation) by the ministries; and the limits to the use of emergency regulations to override existing legislation.

In the past decade, as a result of the growing activism of the Supreme Court, the drafts have also included provisions on the subject of the right of the judiciary to declare laws to be unconstitutional, and the right of the Knesset to override decisions of the courts in this area.

Among the changes that the new proposal will introduce to our system are: preventing MKs from proposing new Basic Laws (i.e. only the government and the Knesset Constitution, Law and Justice Committee will be able to propose such laws); providing that only the High Court of Justice (HCJ), with a make-up of nine judges, will be able to declare laws to be unconstitutional; and enabling a majority of 65 MKs (out of 120) to override the decision of the Supreme Court, and leave in place, at least temporarily, a law declared by the court to be unconstitutional.

The main objection to the existing proposal is the latter provision, that in fact enables the ruling coalition (which is usually supported by more than 65 MKs) to overrule the decision of the HCJ without even trying to amend the problematic law to the satisfaction of the HCJ. Undoubtedly, efforts will be made in the Knesset to increase the number of MKs must approve the overruling of the HCJ, and to encourage the Knesset to amend laws rejected by the HCJ rather than overrule the latter’s decision.

I think there is an additional problem with the new proposal, which so far no one has mentioned. While the proposal addresses the tension that has developed between the Knesset and the Supreme Court over the issue of judicial review, it does not relate to the tension between the Knesset and the government over the issue of legislation.

There are two main causes for this tension that emerged in the late 1980s.

The first is the Economic Arrangements Law that is attached to the state budget, which includes a large number of amendments to existing legislation, and which the Knesset repeatedly claims to be undemocratic in that it mothballs existing legislation and introduces major structural changes without giving the Knesset the chance to debate them seriously.

The second is the scandalous volume of Private Members’ Bills (over a thousand every year) that clogs up the legislative process to the detriment of government legislation, which is also one of the government’s excuses for preserving the Arrangements Law.

If the Knesset is really serious about its objection to the Arrangements Law, it should insist that Basic Law: Legislation includes provisions that will limit the size and content of the former. This could be done in the form of a “single subject rule,” which exists in the constitutions of most of the US States, to block omnibus bills that deal with a large number of unrelated issues. This rule simply states that bills cannot relate to more than one integral subject.

If the government were really serious about its complaint regarding the volume of Private Members’ Bills it would include provisions in Basic Law: Legislation that discourage MKs from proposing bills that have no chance of even reaching preliminary reading (at the moment only around 20 percent of all Private Members’ Bills reach preliminary reading, and only around 5% are passed in third reading).

It is not clear whether this time Basic Law: Legislation, which is an important piece of legislation, will finally be passed.

However, if it is, hopefully the Knesset will be wise enough to pass it in an improved form.

The writer teaches at the Max Stern Yezreel Valley College and was a Knesset employee for many years.