Case Number

HCJ 4908/10

Date Decided

4-7-2011

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Is it possible to circumvent a constitutional principle enshrined in a temporary provision set to remain in effect only for the duration of the current government’s administration term?

Background: on June 22, 2010 Basic Law: The State Budget (Special Provisions) (Temporary Provisions) (Amendment) (hereinafter: “Basic Law Temporary Provision” or “the Law”) was passed to set the budget for years 2011 and 2012, as a biannual budget in one statute. Basic Law Temporary Provision is a continuation of a previous Basic Law that established, also in a temporary provision, that the state budget for years 2009 and 2010 would be a biannual budget (hereinafter: the original temporary provision). Basic Law Temporary Provision, like the original temporary provision, revises the provisions established in sections 3(a)(2), 3(b)(1) and 3A of Basic Law: The State Economy according to which the state budget is to be set for one year only. The Petitioners ask the Court to pronounce Basic Law Temporary Provision void, or alternatively to strike it down. The parties’ arguments raise two primary questions. First, whether Basic Law Temporary Provision is indeed a basic law for all intents and purposes? Does using a temporary provision infringe the validity or status of the Law and a basic law? And assuming that Basic Law Temporary Provision is indeed a basic law, should it be struck down for changing the balance of powers between the Knesset and the Government in the process of approving the state budget?

The High Court of Justice (by President Beinisch, with an expanded panel of seven justices) denied the petition for the following reasons:

The formal test: the use of the term “basic law” and the fact that the year of its legislation is not noted in the title were adopted in the case law as a test for identifying basic laws. However, the argument that the formal test was overly simplistic and that a substantive test or a combined test designed to identify a basic law were in order has been raised more than once. Still, even this proposal has both advantages and disadvantages. In this petition, there is no need to determine the issue of how to identify a basic law. Moreover, both applying the formal test and applying the combined test lead to the conclusion that Basic Law Temporary Provision is a basic law.

Does using a temporary provision infringe the validity or status of the Law as a basic law? As a general rule, “it is highly doubtful whether the motivations for enacting a basic law – even were it possible to argued they are improper – may themselves constitute a legal flaw warranting judicial review.” Therefore, even were the motivation for enacting the Law, as the petitioners argue, the coalition’s desire to avoid needing to approve the Budget Law once a year, this reason in itself does not call for judicial review, particularly where the requested remedy is declaring a basic law void. On a separate level, there is the question whether the mere fact that the Law was enacted as a temporary provision constitutes an “abuse of power” of the constitutive authority, in a way that infringes the validity of Basic Law Temporary Provision as a basic law.

In an ideal situation, where there is a regulated and rigid mechanism for changing and amending the constitution, it is doubtful whether changing the constitution by way of a temporary provision would be possible. However under the current state of the law, in the absence of a Basic Law: The Legislation, the restrictions on legislative procedures or the amendments of basic laws are limited, and in order to enact a basic law in Israel there is no need for special procedures in the Knesset. Under these circumstances, it can not be summarily determined that a basic law can never be changed by way of a temporary provision and it cannot be said that the mere fact that the basic law was enacted by way of a temporary provision inherently voids it or puts it in a lower legislative status than a regular statute, as the Petitioners argue.

However, in can also not be said that this practice is free of difficulties. Setting a temporary legislative arrangement does indeed harm the status of basic laws and should be done sparingly, if at all. In certain cases, which cannot be detailed or determined in advance, it is possible that enacting a basic law by way of a temporary provision may amount to an “abuse of power” of the title “basic law” in a way that would justify judicial intervention in the basic law’s legislation. In examining each case, we must consider, among others, the existence of extreme circumstances that justify making a temporary arrangement rather than a permanent one, the subject matter regulated by the basic law, and the measure of the temporary basic law’s infringement upon principles of governance and other basic rights.

Having said all this, the Knesset would do better to refrain from using temporary provisions to amend constitutional instructions in the future. In any event, as long as no path was established for legislating, changing, and amending basic laws, such a legislative procedure must be reserved for extreme, uncommon and unique circumstances, in light of the status of basic laws.

Other arguments regarding the reasonability of the basic law and the majority with which it was passed in the different readings in the Knesset were similarly rejected. Without taking any position on the advantages or disadvantages of a system of biannual budgeting, considerations of the Law’s reasonability are not among the considerations that warrant the Court’s intervention in basic laws. Arguments that the Law should have been passed by a majority of 61 Knesset Members in all three readings are also unsubstantiated, as section 36A of Basic Law: the Knesset is not protected. Any change to it, therefore, does not require a special majority. The argument that Basic Law Temporary Provision explicitly or implicitly changes section 24 of Basic Law: The Knesset, and thus the Knesset must have enacted it with a special majority, must also be rejected. Section 34 is not a general section that defines when the Knesset can be dispersed, but rather a section the addresses the Knesset’s authority to decide to disperse – a decision that may be made by a statute passed by a majority of Knesset Members. Therefore, moving to a biannual budget cannot be considered an implicit change to section 34 of Basic Law: The Knesset.

Additionally, the argument that the Law must be struck down because it changes the balance of powers between the Knesset and the Government in the process of approving the budget was also rejected. This argument puts up for discussion the doctrine of the non-constitutional constitutional amendment – the Court’s authority to void a Basic Law because it infringes the basic principles of our legal system. This doctrine was discussed at length in foreign legal systems and it is also mentioned in several obiter dicta of this Court’s jurisprudence, but it has yet to be used in Israel. Indeed, there are several basic principles that may not be altered, which are at the foundation of our existence as a society and as a state, any harm to which may raise hard question of authority, including doubts as to whether they alter the constitution or establish a new constitution. However, in this case, and without determining the question of the application or the scope of the application of the non-constitutional constitutional amendment doctrine in Israel, the harm caused to the Knesset as a result of the move to a biannual budget does not amount to a harm to the over-arching principles of our system in a way that justifies voiding the basic law under the non-constitutional constitutional amendment – regardless of the scope of its application in Israel.

Finally, the High Court of Justice called for completing the legislative project and enshrining the procedures for enacting basic laws and their amendment through Basic Law: The Legislation.

Keywords

Administrative Law -- Judicial review, Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Basic Law: The Government, Contracts -- Government Contracts, Economy

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