There is widespread misunderstanding about the rule of law in Israel.
No written constitution in Israel
Unlike almost all democracies, Israel has no written constitution. Instead, it has a variety of ad hoc “Basic Laws” which have been passed at different times and by different Governments.
Israel’s first Basic Law, entitled Basic Law: The Knesset, was enacted in 1958, ten years after the founding of the State. Some other Basic Laws are The President of the State (1964); The Government (1968); The Judiciary (1984).
Strange as it may seem, Basic Laws are enacted by ordinary legislative procedures. Basic Law: The Knesset was initiated by the Knesset Law Committee. Other Basic Laws have been sponsored by the Government (i.e. the Cabinet) or by private members. Basic Law: State Economy (1975) was sent to the Finance Committee, not the Law Committee!
So what’s “basic” about a Basic Law? Not easy to say. To be “basic” a law must be passed by an absolute majority of Israel’s 120-member Knesset. But countless laws enacted by a Knesset majority are not labeled “Basic.”
It’s true that Basic Laws are privileged by “entrenchment,” which means that their amendment or repeal requires an absolute majority of the Knesset plenum. But if the Knesset wishes, entrenchment can apply to ordinary laws.
Lacking is any clear definition as to whether, when, and how Basic Laws are to be placed above ordinary legislation. Also lacking is any provision for their codification. Such vagueness is hardly conducive to the rule of law, as opposed to the rule of men or of transient majorities.
In theory, the Knesset can pass any law it wishes. And since the Supreme Court is its creation, the Knesset would seem to be all-powerful. In reality, however, the Knesset is impotent, and for the following reasons.
Basic Law:The Government stipulates that “The Government is competent to do in the name of the State, subject to any law, any act whose doing is not enjoined by law upon another authority.” Hence, the Government can declare war, make treaties, and change the exchange rate without ever consulting the Knesset! In 2009, PM Netanyahu endorsed the creation of a Palestinian state in the Land of Israel without even consulting the Knesset!
Also, treaties are not “laid before Parliament” for ratification, as is the case, respectively, in the United States and Great Britain. In Israel treaties are merely announced by the Government and within 20 days are published. The Knesset may pass a resolution in favor of a treaty, but this has no legal significance.
The Knesset is not a proper representative body
Unlike the American legislature, the Knesset is not a house of representatives but a “house of parties.” Knesset members owe their seats to their party, not to local constituencies. Because there are no district elections in Israel, Knesset Members are not individually accountable to the voters, and they have no independent base of power. Hence they are all the more subservient to their party leaders.
The Government is composed of a coalition of party leaders drawn from the Knesset. Hence the Knesset can’t exercise administrative oversight. As a consequence, violations of the law and of administrative regulations are rampant.
Moreover, standing committees of the Knesset do not supervise cabinet ministries, as in the United States. The Cabinet is not the implementing institution of the Knesset but rather the executive authority of the State. Consistent therewith, Knesset resolutions do not bind the Cabinet.
Such is its enormous and unchecked power that the Government sometimes acts as if it were above the law. (This is especially so when the Labor Party controls the Government, given Labor’s power over the economy via the Histadrut and its predominance in the media.)
Supreme Court: rule of law becomes rule of men
Conversely, such is the Knesset’s impotence that Israel’s Supreme Court has become a super-legislature. Indeed, until the mid-1980s, only persons directly harmed by a Government decision could petition the High Court against that decision. Since then, the law has not changed, but the Court, since its former president Aharon Barak, has created a new norm: anyone can petition the Court on any issue, and no issue is beyond its purview. This means that the Court can render decisions on any petition not only without citing any judicial precedents, and not only without reference to any laws enacted by the Knesset, but even contrary to such laws!
Among many other decisions that may be cited, the Barak court has (1) ordered the Interior Minister to recognize homosexual adoptions performed overseas, even though Israeli law does not recognize such adoptions (Berner-Kadish v. Interior Minister, 2000); (2) declared parental spanking a criminal offense, contrary to a consensus of the Knesset (Jane Doe v. State of Israel, 2000); (3) nullified a law permitting the Film Censorship Board to ban pornographic movies by ruling that nothing can actually be declared pornography, as one man’s pornography is another man’s art (Station Film Company v. Film Censorship Board, 1997).
More than any other branch of government, the Supreme Court is above the law. All of which indicates that in Israel we find not the rule of law but the rule of men.☼
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