The Short Answer – It wasn't, now it is…In the process, the Court has adopted and applied the unconstitutional constitutional amendment doctrine without acknowledging it.
In the past year, fifteen separate petitions, addressed in a single Court ruling (Hasson decision), decried the unconstitutionality of Basic Law: Israel --the Nation-State of the Jewish People (Basic Law: Nation State). The petitioners sought to represent primarily Israel's Arab minority, which consists roughly 21% of Israel’s population. The petitioners argued that this Basic Law does not commit to upholding the principles of democracy and equality. Since it cements Israel's identity as a Jewish state, neglecting to mention one value (Democracy), while highlighting the other (Jewish character), was perceived as demolishing Israel's democratic nature. The petitioners asked the Court to deploy the unconstitutional constitutional amendment doctrine to strike down either the entire Basic Law or parts of it. If the Court were to adopt this doctrine, it would empower the Court to axe out a constitutional amendment that seeks to abolish Israel's most fundamental values, which are already enshrined in the Constitution.
In the landmark Hasson decision, ten out of eleven Justices dedicated about one hundred and sixty pages to reasoning why the Court will not even issue an order nisi that will force the government to explain why the Basic Law is constitutional and should not be voided. The Justices stated that, since the Israeli legislature (Knesset) is still in the process of adopting the Constitution through Basic Laws, judicial intervention in the content of the Basic Laws is especially problematic. Absent an explicit eternity clause that identifies constitutional values and rights as eternal, and without an entire Constitution whose “basic structure” may be identified, the Court should be wary of intervening. Given Israel's separation of powers doctrine, the Justices further questioned whether the Supreme Court even enjoys the power to intervene in the Constitution's contents. The Court did state that were the Knesset to adopt an extreme provision abolishing Israel’s Jewish or democratic nature, which the Court hopes will never occur, then the Court might intervene, nonetheless. Shy of that, the Court reasoned that it was better to leave open the question whether it enjoys the power to invalidate parts of the Constitution based on their content.
Instead, the majority-opinion Justices suggested an interpretive course that enabled them to reconcile Basic Law: Nation State with Israel's democratic values. The Justices stressed that this Basic Law only constitutes a single chapter of Israel's entire Constitution. As such, it must be read in tandem with the other Basic Laws. In particular, the Justices determined, it must be read alongside Basic Law: Human Dignity and Liberty, which safeguards Israel's democratic identity and the right for equality. Although Basic Law: Human Dignity and Liberty does not explicitly contain the right for equality, Supreme Court's decisions over the years have derived it from the explicit right for human dignity.
The sole dissenter in the Hasson decision was the Arab Justice George Karra, who argued that some of the clauses of Basic Law: Nation State "undermined the core democratic identity of the state and shook the foundations of its constitutional structure."
The public responses to the Hasson decision were swift and ranged across Israel's political spectrum. Since Basic Law: Nation State was upheld, some interpreted the Court's choice as cowardice. The ruling was criticized as racist and anti-democratic, or as a public relations exercise which seeks to embellish a reality that is in fact discriminatory and segregationist. Others regarded the decision as a proper exercise of judicial restraint. Some of them even argued that the Justices had left the question of whether they enjoy the power to review the Constitution's content open ended on purpose, to be revisited in less turbulent times. Others still believed that the Court's ruling only reinforces what they perceived as obvious – nothing is problematic about Basic Law: Nation State.
I argue that the Justices did something quite different and far more profound than they claim. The Court's reasoning and verdict show that it has, in fact, intervened in the very content of the Basic Law. This carries far reaching implications for the meaning of Basic Law: Nation State, as well as the power division between the Israeli government's different branches. The majority opinion relied on use of the constitutional avoidance doctrine. This marked the first time that the Court applied this interpretation method to Basic Laws. Previously, it had only been applied to ordinary legislation, ensuring that it aligns with the Basic Laws, which are superior. However, now it has been applied to Basic Laws, where no hierarchy sets one Basic Law as superior to any other.
According to Israel’s constitutional avoidance doctrine, when the Court may legitimately choose between a few possible interpretations, it should prefer an interpretation that reconciles the legislation with the Basic Laws. This enables the Court to preserve the legislation and "avoid" voiding legislation on grounds of unconstitutionality. By examining the precedents that the Justices mention in the Hasson ruling for use of the constitutional avoidance doctrine, we can see that, in all cases, the validity of a legislation was questioned. Usually, under these circumstances, the Justices preferred to interpret the legislation in a way that refrains from voiding it. Sometimes, the dissenters in those decisions argued that using the constitutional avoidance method amounts to a greater intervention in legislative affairs and "neuters" the legislature's intent, such that it is preferable to void a law rather than reinterpret it in a way that doesn't reconcile with the original legislative intent. Thus, we can see that, despite the Justices' claims, applying the constitutional avoidance doctrine, by its very nature, asserts that the Justices indeed have the authority to repeal the Basic Law, if the doctrine is not exercised to de facto modify its problematic nature.
With this understanding in mind, we can appreciate the true revolutionary nature of the Hasson decision. In many ways, it is more radical than voiding Basic Law: Nation State. The Court had officially rejected the petitions, including their request that the Court rewrite this Basic Law and read democracy and the right for equality into it. However, by exercising constitutional avoidance, the Court has in fact done just that. It didn't wait for the Knesset to react. Rather, the Court remedied Basic Law: Nation State on its own. Now, because of the Hasson ruling, Basic Law: Nation State doesn't need to just be read in tandem with other Basic Laws which uphold democracy and the right for equality. Rather, the principle of democracy and the right for equality are now an intrinsic part of Basic Law: Nation State itself. Any other approach would undermine the Basic Law's validity and would leave it vulnerable to challenges in Court on grounds of unconstitutionality.
Astonishingly, among the majority opinion, liberal as well as conservative Justices, have embraced the constitutional avoidance doctrine. None of them objected to the application of the constitutional avoidance interpretive method. It is equally important to note that even the government officials had not only consented to the use of this doctrine, but urged its exercise over voiding the Basic Law. If the constitutional avoidance method hadn't been applied, then probably all Justices would have concurred that Basic Law: Nation State should've been and would've been voided already.
The implications of this are dramatic. From now on, Israel's governmental bodies need to account for equality and Israel's democratic nature when they implement Basic Law: Nation State. Furthermore, Israel's Supreme Court, led by President Hayut, had adopted and applied the unconstitutional constitutional amendment doctrine as part of the ratio dicidendi of the case. Thus, the Court's decision has constrained the Knesset's constituent power. The Knesset no longer has the power to abolish Israel's Jewish and democratic character. In doing so, the Court has unknowingly led a new constitutional revolution that aimed to heal Israeli society from the divisiveness of Basic Law: Nation State.Rivka Weill is Professor at Harry Radzyner Law School, Reichman University. You can reach her by e-mail at email@example.com. This post is based on a public lecture given on 12.16.2021 at an int’l conference “Nationalism and Liberalism, Judaism and Democracy” held in memory of Prof. Ruth Gavison, jointly organized by the Israel Academy of Sciences and Humanities, Hebrew University and Van Leer Jerusalem Institute. It is part of a larger project titled “Israel's Constitutional Revolution in 2021.”