(photo credit: Ariel Jerozolimski)
Does Israel have a written constitution today? Does former Supreme Court president Aharon Barak think there is a written constitution? What do some the former president’s most erstwhile supporters, such as his successor, Dorit Beinisch and Deputy Supreme Court President Eliezer Rivlin think about this issue? The answers to these questions and the conclusion drawn from them by Beinisch and Rivlin, who are widely accused of being Barak’s devoted followers and therefore overly “activist,” surprised some of those who attended the hearing.
The issue came up in the High Court of Justice Tuesday, during an intense hearing on a petition by the Kadima Party and the party’s former finance minister, Ronnie Bar-On, calling on the court to overturn a temporary amendment to the Basic Law: State Economy.
The temporary law was passed by the Knesset earlier in the year, permitting the government to present a biannual budget for the years 2011 and 2012.
Until the present government was elected in February 2009, all budgets had been in force for only one year.
Because of the importance of the issue, Beinisch appointed a panel of nine justices to hear the petition. Only seven showed up for Tuesday’s hearing, however; the others were at home with the flu.
In the petition, Bar-On and his lawyers, Eyal Rozovsky and Ali Bursztyn,
charged that the law undermined the delicate balance of power between
the executive and legislative branches by allowing the government to
bypass Knesset approval for the 2012 budget.
It was allegedly doing so not because the biannual budget was better for
the economy, but because it helped guarantee the survival of the
Secondly, the temporary amendment deprived the Knesset of one of its
most important and classic functions, that of examining, modifying and
approving the budget proposed by the executive.
The petitioners also charged that from a constitutional point of view, a
temporary law could not alter a basic law. In the sliding scale of
importance, basic laws were at the top, and temporary laws were at the
A basic law, which has constitutional status, could not, by definition,
come in the form of a temporary law, they argued. In fact the government
had admitted that it decided to propose a temporary law because it was
not certain if its financial experts could forecast what the economic
situation would be over a two-year period and wanted to test it out
Rozovsky charged that the use of a temporary law to change a basic law was “disrespectful.”
In response, Knesset legal adviser Eyal Yinon told the court, “The
petitioners’ argument captivates the mind and heart. They present a
sterile model of constitutional law with the clear order and structure
of an eternal constitution, regular laws and temporary laws.
“However, Israeli reality is much more complicated, there does not seem
to be a constitution and the basic laws, which are on a higher level,
can be amended and are not reinforced.
We all know of instances in which it was possible to change basic laws in a single day and no one said a word.”
The state’s representative, attorney Dana Briskman, said the petitioners
were arguing constitutional matters when in fact the law was purely
“The main question here is what should the Basic Law: State Economy look
like and should the budget be an annual or a biannual one,” she said.
Rozovsky told the court Briskman’s reply only proved that the state was
not at all aware of the constitutional ramifications of the temporary
law and ignored them when it drafted the temporary amendment.
“There is also a dispute between me and my colleagues, who say there is
no constitution,” he continued. “The basic laws are the infrastructure
of the constitution.”
But Beinisch indicated that she believed Rozovsky’s arguments had gone too far and entered the realm of theory.
“The place to raise these questions is at an academic symposium,” she told him.
Rozovsky maintained that the question of whether a temporary law could
change a basic law was a crucial aspect of the question of whether there
was a constitution or not. But Beinisch made it clear that the
controversy over the biannual budget was not important enough for the
court to enter into such a complex and potentially explosive matter.
The court will hand down its ruling on the petition at a later date.