Rivka Weill
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.