The Constitutional Revolution

Question 1

What is the Constitutional Revolution?

Answer 1

Expanded the scope of judicial review. Public petitioners bringing matters in front of the Supreme Court and the Supreme Court having power to strike down actions of the Knesset, the executive branch.

Question 2

What did the United Nations General Assembly Resolution 181 say?

Answer 2

Dealt with the termination of the British Mandate, partition, and independence. The Provisional Council of Government for both the Jewish and Arab state shall hold elections to the Constituent Assembly which shall be conducted on democratic lines.

Question 3

What did the Declaration of the Establishment of the State of Israel say?

Answer 3

Constitution shall be adopted by the Elected Constituent Assembly.

Question 4

Why was the adoption of the Constitution by the Elected Constituent Assembly delayed?

Answer 4

Because of the war. Elections were not held until January 25, 1949.

Question 5

It was originally planned that the ___ ___ ___ would continue to serve as a legislature, while the ___ ___ prepared the constitution.

Answer 5

Provisional State Council, Constituent Assembly.

Question 6

How did the Constituent Assembly end up with two functions?

Answer 6

The Provisional State Council dissolved and the newly elected members of the Constituent Assembly assumed the function of the legislature.

Question 7

What were the two functions of the Constituent Assembly?

Answer 7

Drafting a constitution and acting as a legislature.

Question 8

Transition Law, 1949.

Answer 8

The legislature of the State of Israel will be known as the Knesset. The Constituent Assembly will be know as the First Knesset.

Question 9

Transition Law, 1951.

Answer 9

The Second Knesset and its members shall have all the powers which the First Knesset and its members had” and that “this shall be applicable to the Third Knesset and to all future Knessets.

Question 10

Did the First Knesset reach a consensus on whether to adopt a constitution?

Answer 10

No.

Question 11

Who opposed the idea of a written constitution?

Answer 11

Religious Jews and Prime Minister David Ben-Gurion.

Question 12

Why did religious Jews generally oppose the idea of a written constitution?

Answer 12

Because they believed that the Torah is the supreme law of the Jewish nation?

Question 13

Why did Prime Minister David Ben-Gurion oppose the idea of a written constitution?

Answer 13

It created division among Jews. He favoured a flexible model of government, and stressed that the nascent state was not ready to settle foundational issues and though that these would be better dealt with after the immigration of Jews from the Diaspora.

Question 14

Harari Resolution.

Answer 14

Compromise with regards to the question of a constitution. The First Knesset charged the Constitution, Law, and Justice committee with preparing a draft of the State Constitution. The Constitution consisted of separate chapters known as Basic Laws.

Question 15

Is there a formally recognized, consolidated constitution in Israel?

Answer 15

No.

Question 16

Which of the basic laws are like the Canadian Charter of Rights and Freedoms?

Answer 16

Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation.

Question 17

Why is it beneficial that the Basic Laws have not been consolidated in a constitution? Why is it problematic?

Answer 17

It is beneficial because it is more flexible, but is problematic as it is more prone to abuse.

Question 18

Simple majority.

Answer 18

Required to pass something into law after three readings. Only required that, of the members of Knesset present at the time of the vote, a majority votes in labour of the bill. No quorum requirement.

Question 19

Absolute (special) majority.

Answer 19

Requires greater number of members to support the bill. Usually requires a minimum of 61 members out of 120 to support the bill. Only requires that a coalition government that is in place ensures that every one of its members gets up that morning and shows up for the vote — not a particularly difficult majority to achieve.

Question 20

Bergman v Minister of Finance.

Answer 20

A special majority is required to amend a Basic Law. There is a lack of clarity as to the Basic Laws and their constitutional status. The ability to amend a basic law hinges on whether a provision is entrenched requiring an absolute majority.

Question 21

“Negev” — Service Station v State of Israel.

Answer 21

Prior to 1992, the principle of lex specialis applies even when an ordinary statute enacted following a Basic Law. Overruled by United Mizrahi Bank v Migdal Cooperative Village.

Question 22

United Mizrahi Bank v Migdal Cooperative Village.

Answer 22

The “Two-Hat Theory” states that the Knesset has been acting as both a legislature and a constitution assembly, and therefore Basic Laws are distinct from the laws that are passed by the Knesset when it acts as an ordinary legislature. Therefore, Basic Laws enjoy normative supremacy over other laws passed by the Knesset; in the even of a conflict between the Basic Laws and other laws passed by the Knesset, the Basic Laws take precedence and the other law is deemed invalid.

Question 23

Which case did Justice Aharon Barak’s “Two-Hat Theory” come from?

Answer 23

United Mizrahi Bank v Migdal Cooperative Village.

Question 24

“Two-Hat Theory.”

Answer 24

The Knesset has been acting as both a legislature and a constitution assembly, and therefore Basic Laws are distinct from the laws that are passed by the Knesset when it acts as an ordinary legislature. Therefore, Basic Laws enjoy normative supremacy over other laws passed by the Knesset; in the even of a conflict between the Basic Laws and other laws passed by the Knesset, the Basic Laws take precedence and the other law is deemed invalid.

Question 25

What did Justice Mishael Cheshin state in his dissent in United Mizrahi Bank v Migdal Cooperative Village?

Answer 25

Constituent power was not passed on to later Knessets.

Question 26

What does s. 8 of the Basic Law: Human Dignity and Liberty state?

Answer 26

One is not to violate the rights accordance by this Basic Law save by means of a law that corresponds to the values of the State of Israel, which serves an appropriate purpose, and to an extent that does not exceed what is required, or on the basis of a law, as aforementioned, by force of an explicit authorization therein.

Question 27

What served as the stepping stone for the Constitutional Revolution?

Answer 27

Section 8 of the Basic Law: Human Dignity and Liberty.

Question 28

The Supreme Court ruled that s. 8 of the Basic Law: Human Dignity and Liberty, by implication, signifies that…

Answer 28

A law that is inconsistent with the Basic Law: Human Dignity and Liberty will not be valid.

Question 29

Since s. 8 of the Basic Law: Human Dignity and Liberty was read to state that laws inconsistent with the Basic Law: Human Dignity and Liberty are invalid, the Supreme Court gave itself the power to…

Answer 29

Subject to constitutional scrutiny laws that are passed by the Knesset, and if they are deemed contrary to s. 8, to strike them down.

Question 30

Does s. 8 of the Basic Law: Human Dignity and Liberty mention equality, freedom of religion, freedom of expression, or rights to criminal defendants?

Answer 30

No, all of these rights have been ‘read in’ as part of the right to dignity. Clearly, some rights, such as the right to equality and the right of marriage, were deliberately left out to obtain the support of the Ultra-Orthodox Jewish parties.

Question 31

What is the test for s. 8 of the Basic Law: Human Dignity and Liberty?

Answer 31

Principle of equality; law must fit the values of the State of Israel as a Jewish and democratic state; law must seek to attain a ‘proper’ purpose; rational connection; minimal impairment; and overall proportionality.

Question 32

The Supreme Court decided that a law that provides someone could be detained for entering the country illegally for three years was…

Answer 32

Inconsistent with the values of Israel as a democratic state, as the purpose was to deter economic migrants. To violate individual freedoms for mere deterrence is not a proper purpose (found on proportionality, not on deterrence as a valid purpose).

Question 33

What does s. 10 of the Basic Law: Human Dignity and Liberty state?

Answer 33

This Basic Law shall not affect the validity of any law that existedprior to the inception of the Basic Law (preservation of laws).

Question 34

Name legislation that exists as a result of the preservation of laws clause (s. 10 of Basic Law: Human Dignity and Liberty).

Answer 34

The Defence (Emergency) Regulations allows the military to demolish houses of terrorists, even if their family members were not complicit.

Question 35

Tzemach v Minister of Defence.

Answer 35

Although the Supreme Court may not strike down legislation enacted prior to 1992, it may revise its interpretation thereof in the spirit of the Constitutional Revolution, assigning greater weight to the rights of the individual.

Question 36

Do Basic Laws enjoy normative supremacy?

Answer 36

Yes.

Question 37

What do Basic Laws require to be enacted?

Answer 37

No special majority required, although seems to be consensus that special majority if 61 members of Knesset required.

Question 38

Do all Basic Laws include ‘entrenchment’ provisions which require a special majority?

Answer 38

No, only some do.

Question 39

What is the result of some Basic Laws not requiring a special majority to amend?

Answer 39

From this viewpoint, quite fragile and lend themselves to be taken advantage of by coalition governments that wish to have certain ideological positions entrenched in the law. Makes it harder for successive governments to adopt a course of policy that deviates.

Question 40

Does Basic Law: Human Dignity and Liberty have an ‘entrenchment’ provision requiring a special majority?

Answer 40

No.

Question 41

True or false? Basic Law: Human Dignity and Liberty was enacted by a large majority.

Answer 41

False, it was enacted by a small majority of 32 to 21.

Question 42

Was the Constitutional Revolution primarily driven by the legislature or judiciary?

Answer 42

Mainly by the judiciary — former Supreme Court Justice Moshe Landau stated that the Constitutional Revolution was carried out by judicial fiat.

Question 43

What distinguishes constitutional norms from other laws?

Answer 43

It is enacted by the Knesset as a Basic Law — a special majority is not necessarily required.

Question 44

What is required to amend a Basic Law?

Answer 44

Basic Laws may require a special majority of 61 members of Knesset to amend a Basic Law or adopt a given policy.

Question 45

Why is it problematic that Basic Laws do not require a special majority to enact, but require a special majority to amend?

Answer 45

This may potentially be undemocratic for it would enable a given government (even if they govern by narrow coalition majority) to entrench its ideological platform and tie the hands of future elected governments. Risk of politicization.

Question 46

Give an example of politicization in Basic Laws.

Answer 46

Basic Law: Jerusalem and Basic Law: Referendum (nation state law). Both of these have to do with the question of territorial concessions. One of the most contentious issues in Israeli politics has to do with whether territorial concessions should be made with regards to Jerusalem, Golan Heights, and the West Bank. These laws provide that no territorial concessions can be made with regards to East Jerusalem and the Golan Heights without a referendum being held on this subject (alternatively, 80 members of Knesset must vote in favour).