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Judicial Review of Knesset Decisions by the High Court of Justice*

Published online by Cambridge University Press:  04 July 2014

Meir Shamgar
Meir Shamgar
Affiliation:
President, The Supreme Court of Israel.
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Extract

Some fifteen years ago, an address on the subject of judicial review of the actions of the Knesset would have been extremely short and quite familiar to English jurists. Our practice was basically the same as in England: the Parliament is sovereign, its laws inviolate, and its inner proceedings immune from review.

Beginning with two decisions in the early 1980s, Flato-Sharon and Sarid, the Court has gradually recognized the justiciability of a limited range of Knesset decisions. While the precise level of review varies according to the type of decision at issue, the Court's review has been motivated in all cases by the need to preserve the rule of law and the integrity of our democratic regime.

Type
Articles
Information
Israel Law Review , Volume 28 , Issue 1 , Winter 1994 , pp. 43 - 56
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1994

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References

1 Flato-Sharon v. Knesset Speaker (1981) 35(iv) P.D. 118 (hereinafter Flato-Sharon).

2 Sarid v. Knesset Speaker (1982) 36(ii) P.D. 197; appears in English in (1992) 8 S J. 62 (hereinafter Sarid). For a summary of this case see (1983) Is. L.R. 279.

3 Basic Law: Judicature, 38 L.S.I. 101.

4 Miari v. Knesset Speaker (1885) 39(iii) P.D. 122, at 127 (hereinafter Miari D).

5 See Miari v. Knesset Speaker (1987) 41(iv) P.D. 169, at 190–192 (hereinafter Miari II). For a summary of this case see (1989) 23 Is. L.R. 518.

6 See ibid. as well as supra n. 2, at 202–203.

7 Supra n. 5, at 192.

8 Pinhasi v. The Knesset (H.C. 1843/93) (as yet unpublished).

9 ibid., at 5–6, citing sec. 215 of the Law of Criminal Procedure (Consolidated Version), 1982 (36 L.S.I. 35). This principle is similar to sec. 2(I) of England's Criminal Appeal Act of 1988.

10 Kahane v. Knesset Speaker (1986) 39(iv) P.D. 86 (hereinafter Kahane I). For a summary of this case see (1987) 22 Is. L.R. 219.

11 Kach Faction v. Knesset Speaker (1986) 39(iii) P.D. 141. For a summary of this case see (1987) 22 Is. L.R. 219.

12 Poraz v. Knesset Speaker (1992) 46(i) P.D. 299.

13 Reiser v. Knesset Speaker (1988) 42(iii) P.D. 142 (hereinafter Reiser).

14 Kahane v. Khesset Speaker (1986) 40(iv) P.D. 393, at 399 (hereinafter Kahane II).

15 See Miari I, supra n. 4, at 127; Flato-Sharon, supra n. 1, at 124.

16 supra n. 2, at 197 (S.J., at 58–59).

17 See supra n. 14, at 399.

18 Compare Kahane II (supra n. 14) with Kahane I (supra n. 10).

19 Bergman v. Minister of Finance and State Comptroller (1969) 23(i) P.D. 693; appears in English in (1992) 8 S.J. 13 (hereinafter Bergman).

20 Agudat Derech Eretx v. Broadcasting Authority (1981) 36(iv) P.D. 1; appears in English in (1992) 8 S.J. 21 (hereinafter Agudat Derech Eretz).

21 Rubinstein v. Knesset Speaker (1983) 37(iii) P.D. 141; appears in English in (1992) 8 S.J. 60. For a summary of this case see (1985) 20 Is. L.R. 491 (hereinafter Rubinstein).

22 Le'or Movement v. Knesset Speaker (1990) 44(iii) P.D. 529. For a summary of this case see (1992) 26 Is. L.R. 258 (hereinafter Le'or Movement).

23 Basic Law: The Knesset, 12 L.S.I. 85.

24 supra n. 21, at 148; S.J., at 66.

25 supra n. 22, at 539.

26 Basic Law: The Knesset (Amendment No. 3), 13 L.S.I. 228.

27 Supra n. 22, at 554.

28 Supra n. 5, at 190–191.

29 See Miari I, supra n. 4, at 127.

30 See Rubinstein, supra n. 21, at 161–162; Agudat Derech Eretz, supra n. 20, at 22–23.

31 Neiman v. Chairman of the Central Elections Committee for the Tenth Knesset (1985) 39(ii) P.D. 225; appears in English in (1992) 8 S.J. 83. See also Kahane II, supra n. 14, at 400–401.

32 For an English translation of these two laws see (1992) 26 Is. L.R. 247–248.

33 On 9 March 1994 the Knesset passed Basic Law: Freedom of Occupation in a revised veraion. The new version includes a new article (Article 8) providing that a provision of law, infringing on the freedom of occupation will be valid, notwithstanding any contradiction to article 4. The last mentioned article (Article 4) provides that freedom of occupation shall not be infringed upon except by a law conforming with the basic values of the State of Israel, which is furthering a worthy cause, and to an extent which does not exceed the necessary or in accordance with a law which includes an explicit enablement to infringe such right by legislation. An infringement on the basis of Article 8 shall be valid if it is included in a law, adopted by a majority of the members of the Knesset and it is stated in it explicitly that it shall be valid notwithstanding the provisions of the Basic Law; the validity of such law shall expire four years after the date of its entry into force, except if an earlier date has been provided for in such law.

The “notwithstanding clause” presented above has so far been applied in relation to one law, namely, the Import of Frozen Kosher Meat Law, 5754–1994.

The Basic Law: Human Dignity and Freedom was also amended by a provision included in the new version of Basic Law: Freedom of Occupation. A new provision as to the “Basic Principles” of the law was added according to which the basic rights of a person in Israel are founded on the recognition of the value of a human being, the sanctity of hs life, and his being free, and they shall be respected in the spirit of the principles of the Declaration on the Establishment of the State of Israel (i.e., the Charter of Independence).

As mentioned before Basic Law: Human Dignity and Freedom has only qualitative pre-conditions for any legislation contravening its provisions, and no formal majority of Knesset members is demanded. But the courts will naturally apply their power of judicial review based on the qualitative qualifications.