Abstract:

The paper analyses the development of the constitutional process in Israel since 1950, and especially since the 1992 basic laws. It argues that this process should be viewed within a frameworks distinguishing between three stages of constitution-making: the initial enactment of a constitution, amendments of the constitution, and application and interpretation of the constitution. The distinction between stages has institutional implications. Constitution-making should be primarily done by constituent assemblies. Regular legislatures are a second choice. The process should seek broad consensus, and involve big compromises between segments of the public. Amendments should also be undertaken by legislatures with broad consensus, but they can be more local, and their ratification procedures may be less demanding. Application and interpretation should be done in an ongoing way by all branches of government. Courts are authoritative interpreters but they do not necessarily have the final word on the constitution. When we study the Israeli process we see that does not conform to this model at all. It reflects judicial involvement in all stages, including the initial making of the constitution. There is thus a 'legitimacy deficit' in the constitutional process, which may perpetuate the current instability in the constitutional situation.

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