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Temporary Constitutional Amendments as a Means to Undermine the Democratic Order: Insights from the Israeli Experience

  • Nadav Dishon (a1)
Abstract

This article focuses on the adoption of temporary measures within the generally rigid constitutional sphere. Commentators frequently contemplate the extent to which temporary constitutional measures are adequate and necessary within a constitution that is meant to be perpetuated. Some writers are in favour of temporary constitutionalism, claiming that it allows flexibility and relieves the counter-majoritarian problem. Others emphasise the devastating impact of intense implementation of temporary measures on the status and legitimacy of the constitution.

The article contends that as beneficial as temporary constitutionalism may be in some circumstances, its use should be scrutinised with great suspicion, especially when it is employed in weak constitutional regimes. In outlining the history of temporary constitutionalism in the State of Israel, the article illustrates how temporary constitutional amendments can be harnessed to undermine the democratic order. The Israeli use of temporary constitutionalism since 2009 reveals a new under-explored manifestation of ‘abusive constitutionalism’, referred to here as ‘abusive temporary constitutionalism’. With abusive temporary constitutionalism, incumbents can entrench their power against their opponents while avoiding both public accountability and judicial review of their actions. Drawing on the Israeli experience, the article outlines several signifiers (i.e. distinctive markers) which will allow judges in the future to monitor and suppress the development of the abusive employment of temporary constitutional amendments.

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The views expressed herein are mine and not those of the firm. An earlier version of this article was submitted to Professor Cindy Skach as a Master's Thesis at King's College London. Many thanks to Cindy Skach, Yaniv Roznai, Aeyal Gross, Arbel Astrahan, Adi Goldiner, Hagai Kalai, Efy Michaely and Ittai Bar-Siman-Tov for helpful comments and conversations. I also thank the editors of the Israel Law Review for their excellent work.

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1 Hobbes, Thomas, A Dialogue Between a Philosopher and a Student of the Common Laws of England (University of Chicago Press 1997).

2 Aristotle, , Politics: Books III and IV (Robinson, Richard tr, Clarendon Press 1995).

3 eg, Charlton, Roger, Political Realities: Comparative Government (Longman 1986) 23.

4 eg, Scheppele, Kim Lane, ‘Constitutional Coups and Judicial Review: How Transnational Institutions can Strengthen Peak Courts at Times of Crisis (with Special Reference to Hungary)’ (2014) 23 Transnational Law and Contemporary Problems 51 (scrutinising the ability to enforce judicial review in times of ‘constitutional coups’ – ie when a ‘constitutionally devious leader’ aims to achieve anti-constitutional results through a series of wholly legal moves); Landau, David and Dixon, Rosalind, ‘Constraining Constitutional Change’ (2015) 50 Wake Forest Law Review 859 (discussing the possibility that would-be autocrats might use the processes of constitutional amendment for anti-democratic ends, while focusing on the particularly problematic practice of ‘constitutional replacements’).

5 Israel has no single formal document known as ‘the constitution’. However, the Israeli legislature has adopted a set of Basic Laws, which hold legislative supremacy. Commentators refer to the Israeli Basic Laws as an actual constitution. The implications of the unique nature of Israel constitutional law are discussed in Part 3 below.

6 Ozan O Varol, ‘Temporary Constitutions’ (2014) 102 California Law Review 409, 411.

7 Dixon, Rosalind and Ginsburg, Tom, ‘Deciding Not to Decide: Deferral in Constitutional Design’ (2011) 9 International Journal of Constitutional Law 636, 636.

8 Ackerman, Bruce A, ‘The Storrs Lectures: Discovering the Constitution’ (1984) 93 Yale Law Journal 1013, 1020–22.

9 ibid.

10 Elster, Jon, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke Law Journal 364, 366 (suggesting three criteria to distinguish constitutions from ordinary legislation, one of which is the stringent amendment procedures of the constitution).

11 For further discussion see Bar-Siman-Tov, Ittai, ‘Temporary Legislation, Better Regulation and Experimentalist Governance: An Empirical Study’ (2018) Regulation and Governance 4 (forthcoming).

12 For further discussion regarding political ‘self-dealing’ by governments see Graber, Mark A and Gillman, Howard, The Complete American Constitutionalism: Introduction and the Colonial Era, Vol 1 (Oxford University Press 2015) 11. See also Michels, Robert, Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy (The Free Press 1968).

13 The generality principle is considered one of the key values of constitutionalism: see Fuller, Lon L, The Morality of the Law (Yale University Press 1969). Fuller suggests that the law should assume the seven following conditions: generality; adequate publicity; non-retroactivity; intelligibility; non-contradictoriness; stability; consistency (that is, the practical possibility for a disposition to be followed); plus an eighth condition referring to the congruency between the behaviour of officials and what rules establish: ibid 39. See also Murphy, Colleen, ‘Lon Fuller and the Moral Value of the Rule of Law’ (2005) 24 Law and Philosophy 239.

14 Thomas Jefferson, ‘Popular Basis of Political Authority’, Letter from Thomas Jefferson to James Madison, 6 September 1789, http://press-pubs.uchicago.edu/founders/documents/v1ch2s23.html. Ironically, as part of the reasoning for his argument Jefferson assumed the human average life expectancy to be 55 years. In hindsight, this supposition, which is extremely incompatible with today's statistics, unintentionally illustrates the enormous intergenerational differences that occur as society progresses. In doing so, it vividly visualises Jefferson's point in praise of temporary constitutions.

15 Quoted in Wood, Gordon S, The Creation of the American Republic 1776–1787 (University of North Carolina Press 1998) 379.

16 Varol (n 6) 448 (describing the ‘dead hand problem’: ‘By etching their normative preferences into a durable constitution, constitutional framers continue to rule their unborn posterity long after their death’).

17 Ranchordás, Sofia, Constitutional Sunsets and Experimental Legislation: A Comparative Perspective (Edward Elgar 2014) 8.

18 See, eg, Dixon, Rosalind, ‘Updating Constitutional Rules’ (2009) 8 Supreme Court Review 319, 341 (describing potential error costs derived from rules in the Irish and the Indian constitutions governing the ratification of treaties and the size of the government).

19 The US amendment procedure requires a two-thirds vote in both houses of Congress as well as ratification by three-quarters of the state legislatures: Landau, David, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 189, 224.

20 Dixon (n 18) 342.

21 For example, in 1985 the Knesset enacted a temporary amendment to Basic Law: The State Economy, which, in light of the economic crisis in Israel during that year, allowed the government to lay the budget bill before the Knesset later than the date specified in the Basic Law: Draft Proposal to Basic Law: The State Economy (temporary provision), 1985, Government Draft Proposals 1715 (Israel).

22 Dixon and Ginsburg (n 7) 640. Much literature has scrutinised emergency clauses and the risk of the exception becoming de facto the norm. This risk is also noticeable in Israel, which since its inception extends its state of emergency on an annual basis: see discussion in Barak-Erez, Daphne, ‘The National Security Constitution and the Israeli Condition’ in Sapir, Gideon, Barak-Erez, Daphne & Barak, Aharon (eds), Israeli Constitutional Law in the Making (Hart 2013) 429, 434–36.

23 Varol (n 6) 439.

24 ibid.

25 ibid.

26 ibid 415.

27 Tversky, Amos and Kahneman, Daniel, ‘Judgment under Uncertainty: Heuristics and Biases’ (1974) 185 Science 1124.

28 However, it depends on the consequences of the war. Wars could also lead to the drafting of constitutions like that of post-war Germany, which are extremely considerate of human rights as a result of the painful experience of the Nazi regime: see, eg, Tschentscher, Axel, The Basic Law (Grundgesetz) 2016: The Constitution of the Federal Republic of Germany (May 23rd, 1949) – Introduction and Translation (4th edn, Bern University 2016) 15.

29 Varol (n 6) 428–30.

30 Navot, Suzie, ‘Chapter 9: Israel’ in Oliver, Dawn and Fusaro, Carlo (eds), How Constitutions Change: A Comparative Study (Hart 2011) 191.

31 ibid 192.

32 Basic Law: The Knesset; Basic Law: Israel Lands; Basic Law: The President of the State; Basic Law: The State Economy; Basic Law: The Army; Basic Law: Jerusalem, the Capital of Israel; Basic Law: The Judiciary; Basic Law: The State Comptroller; Basic Law: Human Dignity and Liberty; Basic Law: Freedom of Occupation; Basic Law: The Government; Basic Law: Referendum.

33 However, those rights were recognised by the Israeli High Court of Justice (HCJ): see, eg, HCJ 73/53 Kol Ha'am Ltd v Minister of Interior 1953 PD 7(2) 871, https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\53\730\000\Z01&fileName=53000730_Z01.txt&type=4 (English translation) (acknowledging the constitutional right of freedom of expression); HCJ 98/69 Bergman v. Minister of Finance 1969 PD 23(1) 693, https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\69\980\000\Z01&fileName=69000980_Z01.txt&type=4 (English translation) (acknowledging the constitutional right of equality). Also, in the Israeli case law, those rights are considered to be rights that derive from the human right to dignity: see, eg, HCJ 4541/94 Miller v Minister of Defense 1995 PD 49(4) 94, https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\94\410\045\Z01&fileName=94045410_Z01.txt&type=4 (English translation) (concerning the right to equality); and HCJ 4804/94 Station Film v Film Review Board 1997 PD 50(5) 661, https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\94\040\048\Z01&fileName=94048040_z01.txt&type=4 (English translation) (concerning freedom of speech). All references to Israeli case law in this article are in Hebrew unless otherwise stated.

34 Navot, Suzie, The Constitutional Law of Israel (Kluwer 2007) 3537. See also the discussion in Justice Rubinstein's opinion in HCJ 8260/16 The College of Law and Business v The Israeli Knesset (6 September 2017), paras 19–22.

35 CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village (1995) PD 49(4) 221, https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\93\210\068\z01&fileName=93068210_z01.txt&type=4 (English translation).

36 Weill, Rivka, ‘Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power’ (2012) 39 Hastings Constitutional Law 457, 476.

37 ibid 473.

38 Navot (n 30) 198.

39 Shetreet, Shimon, Jewish and Israeli Law: An Introduction (De Gruyter 2017) 46 fn 51 and accompanying text (providing further details regarding the 15 judgments in which the HCJ invalidated acts of primary legislation up to the end of 2016. During 2017 the HCJ declared invalid two acts of primary legislation: HCJ 1877/14 Movement for Quality of Government in Israel v The Knesset (12 September 2017) (invalidating a law which introduced a new framework for the deferment and exemption of ultra-orthodox Jews from compulsory military service); and HCJ 10042/16 Quantinsky v The Israeli Knesset (6 August 2017) (invalidating the ‘third apartment tax’ provisions, which imposed a special tax on homeowners who own more than two pieces of real estate).

40 Navot (n 30) 198.

41 Basic Law: Freedom of Occupation, 1994 (Israel), s 7; Basic Law: The Government, 2001 (Israel), s 44(a). In Israel, in order to assume power the government must be approved through assembling a coalition which provides an absolute majority in the Knesset. Hence, insofar as the government is stable, it can easily obtain absolute majority for any particular vote and amend even the more rigid Basic Laws.

42 By way of comparison, while Basic Law: The Knesset and Basic Law: The Government were each amended dozens of times in only a few decades, the US constitution has been amended 27 times since its enactment in 1776, and the Dutch constitution, the oldest in Europe, has been amended 18 times since its enactment in 1814: Navot (n 30) 200 (providing an outline of the amendments passed by the Knesset to each Basic Law); European Commission for Democracy through Law (Venice Commission), Report on Constitutional Amendment, Study No 469/2008, CDL-AD(2010)001, 19 January 2010, 6 (outlining various defining characteristics of constitutions in Europe, including the number of constitutional amendments).

43 Especially after the ‘constitutional revolution’ ignited by the Mizrahi Bank ruling: Mizrahi Bank v Migdal (n 35) para 54 of Justice Barak's opinion (‘A basic law is a chapter in the State constitution. It derives from the Knesset's constituent authority. In establishing a basic law, we find ourselves at the highest normative level’); see also Navot, Suzie, The Constitution of Israel: A Contextual Analysis (Hart 2014) 32.

44 HCJ 4908/10 Baron v The Knesset 2011 PD 64(3) 275, para 22 of Justice Beinisch's opinion.

45 Elster (n 10) 366.

46 ibid.

47 Rubinstein, Amnon and Medina, Barak, The Constitutional Law in the State of Israel (Shoken 2005) 83.

48 Baron v The Knesset (n 44) para 22 of Justice Beinisch's opinion.

49 Navot (n 34) 36–37.

50 ibid.

51 For a different analysis of the Harari compromise, maintaining that it actually did not help in reconciling ideological disputes but rather brought about a decline in the Israeli constitutional project, see Barak-Erez, Daphne, ‘From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective’ (1995) 26 Columbia Human Rights Law Review 309, 314–15.

52 See n 16 and accompanying text.

53 Navot (n 30) 191–92.

54 Barak-Erez (n 22) 430.

55 See MK Ophir Pines-Paz, then chairman of the Constitution, Law and Justice Committee of the Knesset, 330th Meeting of the 15th Knesset (15 July 2002).

56 Basic Law: The State Economy (Bills and Reservations whose Implementation Involves a Budgetary Cost) (Temporary Order), 2002 (Israel), s 1.

57 Explanatory notes of Draft Proposal to Basic Law: The State Economy (Amendment No 6), 2003, Government Draft Proposals 25 (Israel). An illustration of the importance attached to the examination process by the Knesset was given during the third reading discussions in the Knesset plenary. The coalition representative, MK Michael Eithan, Chairman of the Constitution, Law and Justice Committee of the Knesset at the time, stated that the examination period for this provision would continue even after its permanent enactment and, for that purpose, it was enacted without any supermajority amendment requirement, although found in the original proposal: see the 25th Meeting of the 16th Knesset (26 May 2003).

58 Ittai Bar-Siman-Tov outlines three main characteristics to classify temporary legislation as experimental legislation: (i) it is one that stems from a purpose to enact a temporary rather than a permanent arrangement in order to generate data prior to the sunset date; (ii) it contains an ex-post evaluation and learning mechanism, which is the most crucial component; and (iii) it is intended to be the first step towards permanent legislation (Bar-Siman-Tov (n 11) 6–7). The provision in Basic Law: The State Economy of 2002 meets those requirements, and therefore can be classified as a correct application of experimental constitutionalism.

59 Roznai, Yaniv, ‘Book Review: Sofia Ranchordás, Constitutional Sunsets and Experimental Legislation: A Comparative Perspective (Edward Elgar, 2014)’ (2016) 64 American Journal of Comparative Law 790, 790–94.

60 Basic Law: The Knesset, enacted in 1958.

61 Bar-Siman-Tov (n 11) 12

62 Elections to the Eighth Knesset and to Local Government Law (Temporary Provision), 1973 (Israel), s 9.

63 Following the 1973 war and during the 1980s, Israel underwent a severe economic crisis, which at its peak (in 1984) brought about inflation with an annual rate of over 400%. In 1985 the Israeli government embarked on a stabilisation programme, which reduced inflation significantly: Zalman F Shiffer, ‘Adjusting to High Inflation: The Israeli Experience’ (1986) 68 Federal Reserve Bank of St Louis Review 18.

64 The Convening of the Knesset Law (Temporary Provision), 1985 (Israel).

65 The Convening of the Knesset Law (Temporary Provision), 1989 (Israel).

66 Basic Law: The Knesset (Amendment No 25), 2000 (Israel).

67 See MK Silvan Shalom, 69th Meeting of the 15th Knesset (10 January 2000).

68 See nn 56–58 and accompanying text.

69 Although not officially classified as such by the Knesset, this amendment is considered in hindsight to have been a ‘constitutional experiment’: Kretzmer, David, ‘Presidential Elements in Government Experimenting with Constitutional Change: Direct Election of the Prime Minister in Israel’ (2006) 2 European Constitutional Law Review 60.

70 See discussion in Varol (n 6) 461–63 (stating that ‘low amendment thresholds – which allow constitutional amendment through, for example, a simple legislative majority – can also relax constitutional permanence’).

71 Netanyahu's first premiership was between 1996 and 1999.

72 Draft Proposal of Basic Law: The State Budget for 2009–2010 (Special Provisions) (Temporary Provision), 2009, Government Draft Proposals 424 (Israel).

73 Minister of Finance, Yuval Steinitz, 15th Meeting of the 18th Knesset (6 April 2009).

74 ibid.

75 ibid.

76 For other sources of criticism see, eg, the First Meeting of the 18th Knesset Finance Committee (6 April 2009), including, inter alia, the following statements by MK Shelly Yachimovich (‘Does it seem reasonable to you, even when we are in the middle of a massive process of economic changes, to set already now the cures for the market's flaws in 2010?’); MK Haim Oron (‘The Knesset doesn't have tools to cope with biennial budgeting system, especially with the lack of clarity inherited in it’); and MK Shay Hermesh (‘I'm starting to be convinced that your only goal is to say one thing – we confiscate today the power [to approve the annual budget] from this honorable committee’).

77 According to art 36A of Basic Law: The Knesset, unlike a no-confidence vote – which requires at least 61 MKs in order to trigger new elections – preventing approval of the budget is sufficient to overthrow the government: Eyal Yinon, Legal Adviser to the Knesset, 341st Meeting of the 20th Knesset Finance Committee (23 May 2016) 16.

78 Basic Law: The Knesset (Israel), s 36a.

79 Draft Proposal to Basic Law: The State Budget for 2009–2010 (Special Provisions) (Temporary Provision) (Amendment), 2010, Government Draft Proposals 498 (Israel).

80 ibid.

81 Baron v The Knesset (n 44).

82 ibid para 29 of Justice Beinisch's opinion.

83 ibid para 24 of Justice Beinisch's opinion. The doctrine of ‘misuse of the title Basic Law’ was introduced by the then President of the Supreme Court, Justice A Barak, in his opinion in the Mizrahi Bank judgment (Mizrahi Bank v Migdal (n 35) 406). In Israel there are no formal rules governing the amendment of Basic Laws apart from the judicially introduced rule that Basic Laws are to be amended only by Basic Laws, which is merely a textual and stylistic requirement: see Mazen Masri, ‘Unamendability in Israel – A Critical Perspective’ in Richard Albert and Bertil Emrah Oder (eds), An Unconstitutional Constitution? Unamendability in Constitutional Democracies (Springer, forthcoming) 1, 6–7. This doctrine is aimed at identifying an amendment to a Basic Law which meets the technical requirements, but is not sufficiently substantive to be part of the constitution. It is intended to prevent the enactment of a regular norm in the disguise of a constitutional norm, merely for the purpose of shielding it from judicial review.

84 ibid para 25 of Justice Beinisch's opinion.

85 ibid paras 25–26 of Justice Beinisch's opinion.

86 ibid para 5 of Justice Rubinstein's opinion.

87 ibid para 7 of Justice Rubinstein's opinion.

88 The State Comptroller, ‘Audit Report: Ministry of Finance – Preparing the 2011–2012 Budget and Meeting the Deficit Target’, 2014 (in Hebrew), http://www.mevaker.gov.il/he/Reports/Report_258/fd3ba6e6-dcd3-4e88-bbb5-a94d36dc0210/ozar-1.pdf.

89 Draft Proposal to Basic Law: The State Budget for 2009–2012 and 2013 (Special Provisions) (Temporary Provision) (Amendment No 3), 2013, 749 Government Draft Proposals 260 (Israel).

90 ibid.

91 Minister of Finance, Yair Lapid, 22nd Meeting of the 19th Knesset (29 April 2013).

92 The Chair of the Finance Committee, MK Moshe Gafni, was very clear about this matter, stating that ‘from 2015 onwards there will only be an annual budget. Period’: 29th Meeting of the 19th Knesset (20 May 2013).

93 Yinon (n 77) 17.

94 Draft Proposal to Basic Law: The State Budget for 2009–2014 (Special Provisions) (Temporary Provision) (Amendment No 4), 2015, 916 Government Draft Proposals 590 (Israel).

95 Basic Law: The State Budget for 2017 and 2018 (Special Provisions) (Temporary Provision) (Original Law), 2016 (Israel).

96 Draft Proposal to Basic Law: The State Budget for 2017 and 2018 (Special Provisions) (Temporary Provision), 18 July 2016, 1063 Government Draft Proposals 1212 (Israel).

97 ibid.

98 Yinon (n 77).

99 The 422nd Meeting of the 20th Knesset Finance Committee (25 July 2016) 15–16.

100 The College of Law and Business (n 34). The author represented the petitioners in this case. The petition was based on research which served as a basis for this article.

101 ibid.

102 ibid para 32 of Justice Rubinstein's opinion.

103 ibid para 11 of Justice Rubinstein's opinion.

104 ibid para 33 of Justice Rubinstein's opinion.

105 Indeed, following the College of Law and Business judgment, in 2018 the government promulgated an annual draft budget law for 2019 only.

106 An earlier version of the Basic Law, which was valid between 1992 and 1999, limited the number of ministers in the government to 18 members: Basic Law: The Government, s 33. Indeed, when Benjamin Netanyahu was first elected Prime Minister in 1996, he met the limit and formed a government of 18 ministers.

107 Basic Law: The Government (Amendment), 2014, in force starting with the term of the following (20th) Knesset.

108 Draft Proposal to Basic Law: The Government (Amendment No 3 and Temporary Provision for the 20th Knesset), 11 May 2015, Government Draft Proposals 915 (Israel).

109 This type of temporary legislation has been coined by scholars ‘sunrise clauses’. Generally speaking, such clauses are far more acceptable in the constitutional sphere as their delayed application tends to remove extraneous considerations: Herz-Roiphe, Daniel E and Grewal, David Singh, ‘Make Me Democratic, But Not Yet: Sunrise Lawmaking and Democratic Constitutionalism’ (2015) 90 New York University Law Review 1975, 1985 (noting that ‘[s]unrise lawmaking … reflects the spirit of constitutionalism: it enables contemporary majorities to cast their eyes forward and think only of the future’).

110 Such a limit seems appropriate in Israel where, compared with other countries, the size of the government is disproportionally higher than the size of the population and the legislature: see discussion in HCJ 3234/15 Yesh Atid Party v The Speaker of the Knesset (9 July 2015), para 1 of Justice Naor's opinion.

111 For example, Ofir Akunis and Ze'ev Benjamin Begin were appointed as ministers without portfolio, while the Prime Minister served also as Minister for Health, Foreign Affairs, Communications, and Regional Cooperation.

112 Yesh Atid Party v The Speaker of the Knesset (n 110); see also The College of Law and Business (n 34) para 5 of Justice Hendel's opinion, in which he compares the Yesh Atid judgment and the College of Law and Business judgment.

113 Yesh Atid Party v The Speaker of the Knesset (n 110) para 13 of Justice Naor's opinion.

114 Landau (n 19) 229.

115 Strauss, David A, ‘Common Law Constitutional Interpretation’ (1996) 63 The University of Chicago Law Review 877, 907.

116 Marmor, Andrei, ‘Are Constitutions Legitimate?’ (2007) 20 Canadian Journal of Law and Jurisprudence 69, 79.

117 See also nn 81–84 and accompanying text above.

118 Draft Proposal to Basic Law: The Knesset (Amendment No 42 and Temporary Provision (Termination of Service of a Member of Knesset who Serves as a Minister or Deputy Minister)), 20 July 2015, Government Draft Proposals 940 (Israel).

119 Eyal Zandberg, Director of Public Law at the Ministry of Justice, 29th Meeting of the 20th Knesset Constitution, Law and Justice Committee (27 July 2015) 7.

120 MK Michal Rozin, ibid 21.

121 MK Osama Saadi, ibid 22–31.

122 MK Nissan Slomiansky, Chair of the Constitution, Law and Justice Committee, 32nd Meeting of the 20th Knesset (28 July 2015) 3.

123 For more on the topic see nn 6–9 and accompanying text.

124 However, unlike the Israeli case, in the Czech constitution there is a non-amendable provision protecting the ‘rule of law’ and the debate in that case surrounded this provision: Constitutional Court, Pl ÚS 27/09, Constitutional Act on Shortening the Term of Office of the Chamber of Deputies, 10 September 2019, https://www.usoud.cz/en/decisions/20090910-pl-us-2709-constitutional-act-on-shortening-the-term-of-office-of-the-chamber-of-de. For a critical analysis of this judgment see Roznai, Yaniv, ‘Legisprudence Limitations on Constitutional Amendments? Reflections on the Czech Constitutional Court's Declaration of Unconstitutional Constitutional Act’ (2014) 8 Vienna Journal on International Constitutional Law 29.

125 See also the reference by Justice Melcer to personalised provisions in The College of Law and Business (n 34) and at 5.2.1 below.

126 Interestingly, an increasing use of temporary measures was also identified recently in Israeli ordinary legislation: Bar-Siman-Tov (n 11) 14–15. Examining whether those two trends are intertwined is beyond the scope of this article.

127 See also nn 69–70 and accompanying text.

128 Baron v The Knesset (n 44) para 5 of Justice Rubinstein's opinion.

129 Explanatory Notes to the Draft Proposal to Basic Law: The State Budget for the 2017 and 2018 (Special Provisions) (Temporary Provision) (n 96).

130 See nn 6–9 and accompanying text.

131 Horizontal accountability is defined among scholars as the capacity of state institutions to check abuses by other public agencies and branches of government, while vertical accountability is the means through which citizens, mass media and civil society seek to enforce standards of good performance on officials: see, eg, Leonardo Morlino and Luiss G Carli, ‘How to Assess a Democracy: What Alternatives?’, Report, XV International Academic Conference on Economic and Social Development, 2014; Leonardo Morlino, ‘Good and Bad Democracies: How to Conduct Research into the Quality of Democracy’ (2004) 20 Journal of Communist Studies and Transition Politics 5; O'Donell, Guillermo A, ‘Delegative Democracy’ (1994) 5 Journal of Democracy 55. Diamond and Morlino contend that both vertical and horizontal accountability form part of the ‘eight dimensions of democratic quality’: Diamond, Larry and Morlino, Leonardo, ‘The Quality of Democracy, an Overview’ (2004) 15(4) Journal of Democracy 20, 22.

132 HCJ 7052/03 Adalah v Minister of Interior 2006 PD 61(2) 202, para 118 of Justice Cheshin's opinion, https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts\03\520\070\a47&fileName=03070520_a47.txt&type=4 (English translation).

133 ibid.

134 Gubler, Zachary J, ‘Experimental Rules’ (2014) 55 Boston College Law Review 129.

135 Eternity clauses provide immunity to certain parts of the constitution from future amendment: see, eg, art 4 of the Constitution of the Republic of Turkey; and art 79(3) of Basic Law for the Federal Republic of Germany. For further discussion regarding the tension between eternity clauses (referred to by some as ‘entrenchment clauses’) and popular sovereignty see, eg, Albert, Richard, ‘Constitutional Handcuffs’ (2010) 42 Arizona State Law Journal 663; Weintal, Sharon, ‘The Challenge of Reconciling Constitutional Eternity Clauses with Popular Sovereignty: Toward Three-Track Democracy in Israel as a Universal Holistic Constitutional System and Theory’ (2011) 44 Israel Law Review 449.

136 The College of Law and Business (n 34) para 35 of Justice Rubinstein's opinion; Baron v The Knesset (n 44) para 32 of Justice Beinisch's opinion.

137 Roznai, Yaniv, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press 2017) 38.

138 Albert, Richard, ‘The Structure of Constitutional Amendment Rules’ (2014) 49 Wake Forest Law Review 913, 918.

139 Roznai (n 137) 42–47. For a review of the Indian court's decisions and further examples of judicial review of constitutional amendments see Gözler, Kemal, Judicial Review of Constitutional Amendments: A Comparative Study (Ekin Press 2008).

140 Roznai (n 137) 67.

141 ibid 53.

142 Baron v The Knesset (n 44) para 33 of Justice Beinisch's opinion; The College of Law and Business (n 34) para 28 of Justice Rubinstein's opinion.

143 See Justice Joubran's description of this doctrine: ‘As we walk along this corridor, we do not examine the Basic Law in itself, and we are not required to understand the meaning and consistency of the arrangements listed therein. The purpose of this review is to ensure that the nature of these arrangements does not contradict their coronation as basic laws and their unique normative status’: The College of Law and Business (n 34) para 5 of Justice Joubran's opinion.

144 ibid para 6 of Justice Melcer's opinion; HCJ 24/01 Ressler v Israeli Knesset 2002 PD 56(2) 699, 713–16; HCJ 1661/05 Gaza Coast Local Council v The Knesset 2005 PD 59(2) 481, 553.

145 The ambiguous relationship between temporary and permanent provisions within the constitution was one of the reasons for the Hungarian Constitutional Court to strike down several ‘transitional provisions’ enacted in Hungary during 2012 in order to specify in detail how to phase in the new constitution, which came into force during the same year. The Hungarian court stressed that a constitutional amendment has to take the proper form and in fact be directly incorporated into the constitution. It could not be tacked on as a ‘small constitution’ at the end of the text, leaving the relationship between the amendment and the original text unclear: Scheppele (n 4) 80.

146 Landau (n 19) 191.

147 See nn 118–122 and accompanying text.

148 For example, the temporary amendment that removed the limitation on the number of ministers (Basic Law: The Government (Amendment No 3 and Temporary Provision for the 20th Knesset)) was adopted within three days (11–13 May 2015); and the temporary amendment which allowed ministers to resign from the Knesset (Basic Law: The Knesset (Amendment No 42)) was adopted within nine days (20–29 July 2015).

149 As was the case in the enactment of Basic Law: The State Economy for the years 2009 until 2012 (Special Provisions) (Temporary Provision) (Amendment No 2), which was first promulgated on 19 March 2013 and passed three readings on the same day; and in the enactment of Basic Law: The State Economy for the years 2009 and 2010 (Special Provisions) (Temporary Provision), which was first promulgated on 6 April 2009 and passed three readings on the same day.

150 HCJ 466/07 Galon v Attorney General 2012 PD 65(2) 44, paras 24–27 of Justice Arbel's opinion.

151 Samuelson, William and Zeckhauser, Richard, ‘Status Quo Bias in Decision Making’ (1988) 1 Journal of Risk and Uncertainty 7.

152 ibid 9.

153 Eidelman, Scott and Crandall, Christian S, ‘Bias in Favor of the Status Quo’ (2012) 6 Social and Personality Psychology Compass 270, 273.

154 Eidelman, Scott, Pattershall, Jennifer and Crandall, Christian S., ‘Longer is Better’ (2010) 46 Journal of Experimental Social Psychology 993.

155 Landau (n 19). Landau's article is part of a burgeoning literature examining the phenomenon of abusive democratic measures for entrenching the incumbent's power and insulate it from serious democratic challenges: see, eg, Varol, Ozan O, ‘Stealth Authoritarianism’ (2015) 100 Iowa Law Review 1673 (discussing how sub-constitutional methods are used to perpetuate political power); Levitsky, Steven and Way, Lucan A, Competitive Authoritarianism: Hybrid Regimes after the Cold War (Cambridge University Press 2010) (describing the new trend of regimes with formal democratic institutions, but which are not truly democratic because ‘the playing field is heavily skewed in favor of incumbents’); Kim Lane Scheppele, ‘Not Your Father's Authoritarianism: The Creation of the “Frankenstate”’, Newsletter of the European Politics and Society Section of the American Political Science Association, 2013, http://www.academia.edu/2773381/Reflections_on_Democracy_in_Eastern_Europe_5_author_forum_ (applying the term ‘Frankenstate’ to describe regimes that perpetuate their incumbents through constitutional processes).

156 Landau (19) 191, 197.

157 ibid 195.

158 ibid 206.

159 ibid 199.

160 ibid 214.

161 ibid 219.

162 ibid 229; see also Albert (n 135).

163 See, eg, the eternity clauses of the German and South African constitutions, which entrench certain human rights on a higher tier.

164 For a comparative analysis of the use of this doctrine see, eg, Barak, Aharon, ‘Unconstitutional Constitutional Amendments’ (2011) 44 Israel Law Review 321; Gözler (n 139).

165 Landau (n 19) 232. For an introduction to the counter-majoritarian difficulty in general, see Bickel, Alexander M, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Bobbs-Merrill 1962).

166 Landau (n 19) 249.

167 ibid.

168 ibid 248.

169 ibid 259.

170 Varol (n 155) 1677.

171 See 3.2.1 above.

172 The College of Law and Business (n 34) para 3 of Justice Hendel's opinion.

173 As noted by Ittai Bar-Siman-Tov, ‘experimental legislation is intended to be a first step toward permanent legislation, whereas other types of temporary legislation are meant to expire’: Bar-Siman-Tov (n 11) 11.

174 The College of Law and Business (n 34) para 6 of Justice Melcer's opinion. This approach is compatible with the theoretical claim that a distinguishing feature of experimental legislation as a whole is that it serves as a step towards permanent legislation: Van Gestel, Rob and Van Dijck, Gijs, ‘Better Regulation through Experimental Legislation’ (2011) 17 European Public Law 539.

175 The College of Law and Business (n 34) para 25 of Justice Rubinstein's opinion.

176 Bar-Siman-Tov (n 11) 10 (suggesting that a proper evaluation mechanism ‘should specify the purposes and goals of the legislative measure, the data to be collected, and the criteria and methods to be used to evaluate whether the legislative measure has met these goals, and define responsibilities for collecting the data and assessing results’). Bar-Siman-Tov also contends that the evaluation process should be held by ‘special units’, which would ideally be independent bodies.

177 The College of Law and Business (n 34) para 6 of Justice Hendel's opinion. See also the discussion at n 124 and accompanying text regarding the judgment of the Czech Constitutional Court of 10 September 2009.

178 Landau (n 19) 229.

179 See Section 5.2.1 above.

The views expressed herein are mine and not those of the firm. An earlier version of this article was submitted to Professor Cindy Skach as a Master's Thesis at King's College London. Many thanks to Cindy Skach, Yaniv Roznai, Aeyal Gross, Arbel Astrahan, Adi Goldiner, Hagai Kalai, Efy Michaely and Ittai Bar-Siman-Tov for helpful comments and conversations. I also thank the editors of the Israel Law Review for their excellent work.

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Israel Law Review
  • ISSN: 0021-2237
  • EISSN: 2047-9336
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