SHOULDN'T WE SEEK THE PEOPLE'S CONSENT? ON THE NEXUS BETWEEN THE PROCEDURES OF ADOPTION AND AMENDMENT OF ISRAEL’S CONSTITUTION

Abstract: Israel's Supreme Court recognized the existence of a formal Israeli Constitution in the form of Basic Laws in 1995 in the Hamizrachi Bank Decision. This decision, viewed as the climax of Israel's constitutional revolution, has provoked harsh criticism. Nonetheless, many support finalizing this constitutional revolution by the enactment of Basic Law: Legislation. This Basic Law would decide the constitutional status of all Basic Laws, as well as the process for constitutional amendment. The most prevalent current proposal for this Basic Law is that of the Ne'eman Commission. Its main features were recently adopted also by the Knesset's Constitution, Law and Justice Committee as part of its effort to adopt a Broad-Based Consensual Constitution. The proposal includes no decision, yet, as to the process of adopting the Constitution: Would it require a referendum or would it suffice to gain the Knesset's consent? Not having decided how to adopt a Constitution, the proposal nonetheless prescribes a constitutional amendment process that would also be applicable to the existing Basic Laws, if no new Constitution were to be adopted. According to the proposal, constitutional amendment would require the consent of the Knesset alone by a special process. This lecture argues that, contrary to the prevailing constitutional understanding in Israel, we cannot decide the process of amending the Constitution independently of the process of its adoption and that the two should be tightly coupled. Further, the current leading proposal of Basic Law Legislation is a hybrid, involving features from two different constitutional models. It has features of both a "parliamentary sovereignty"-based constitution as well as a "popular sovereignty"- based constitution. This mixture imposes "high costs" which the article elaborates. The speak offers alternatives to the currently proposed Basic Law: Legislation that would better suit the Israeli constitutional development. Though both models for establishing a Constitution are legitimate, the article argues the desirability of a popular sovereignty based Constitution if we truly wish to base the Constitution on broad consensus.

Location: 
Elath Hall, 2nd floor, Feldman Building, Edmond J. Safra Campus
Dates: 
Friday, March 23, 2007 - 10:00 to 12:00
Old Lecturers: 
RIVKA WEILL
Old Lecturers University: 
INTERDISCIPLINARY CENTER (IDC), HERZLIYA