Case Number

CA 6821/93

Date Decided

11-9-1995

Decision Type

Appellate

Document Type

Full Opinion

Abstract

The Family Agricultural Sector (Arrangements) Law was adopted by the Knesset in 1992, as part of an attempt to rehabilitate Israel’s agricultural sector following a severe economic crises. To that end, the law established a body called the “rehabilitator,” which was granted broad authority to settle, restructure and cancel debts that had been created up to the end of 1987. In 1993, the Knesset found it necessary to intervene again, and amended the law. Among other changes, the Family Agricultural Sector (Arrangements) (Amendment) Law, 5753-1993, redefined the debts subject to the law, and extended the applicable time period so that debts incurred until the end of 1991 also fell within the scope of the law and the authority of the rehabilitator.

Following the adoption of the Primary Law, but prior to the adoption of the Amending Law, the Knesset enacted Basic Law: Human Dignity and Liberty. Section 10 of the Basic Law stated that the Basic Law “shall not affect the validity of any Law in force prior to the commencement of the Basic Law.

CA 6821/93 concerned a suit brought by the appellant in the District Court against the respondents who had guaranteed the debt of the Cooperative Agricultural Fund Ltd. The respondents requested that the matter be transferred to the jurisdiction of the rehabilitator, in accordance with the Amending Law. The Court granted the request. The appellants argued on appeal that the Amending Law violated their property rights under s. 3 of Basic Law: Human Dignity and Liberty, and was contrary to s. 8 of that Basic Law, which establishes that there shall be no violation of rights under the Basic Law except “by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than required, or by regulation enacted by the virtue of express authorisation of such Law.”

LCA 1908/94 concerned debts incurred by the appellants for the rental of agricultural equipment. The District Court held that the provisions of the Amending Law that extended the period of debts were incompatible with s. 8 of the Basic Law and were void. While the Amending Law served a proper purpose, the Court found that it applied selectively to a part of the public and was therefore incompatible with the values of the State of Israel.

LCA 3364/94 addressed the District Court’s decision to reject the request of the appellants to transfer their matter to the jurisdiction of the rehabilitator. The Court found that the debt had been incurred in 1988 and thus did not fall within the scope of the Primary Law. The stay of proceedings and the transfer of the debt to the jurisdiction of the rehabilitator were a result of the Amending Law. The Court held that the Amending Law infringed creditors’ rights beyond what was established in the Primary Law. While the Primary Law was immune to review under the provisions of s. 10 of the Basic Law, those provisions did not apply to the Amending Law, which was, therefore, subject to review under s. 8.

The three cases represented the first instances in which Israeli courts annulled a law passed by the Knesset on the grounds of unconstitutionality due to a violation of fundamental rights established in a Basic Law. Inasmuch as the three cases raised the same fundamental questions of constitutional law, the appeals were heard together before an expanded bench of nine judges of the Supreme Court.

In deciding the appeals, the Supreme Court was called upon to address the questions of whether or not the Knesset possessed constituent authority to frame a constitution and limit its own legislative authority thereby, and whether Basic Laws enacted by the Knesset enjoy supra-legislative status. After establishing the place of Basic Laws in the legislative hierarchy and the ramifications of a conflict between regular legislation and Basic Laws, the Court addressed the specific issue of whether the Amending Law violated rights established under Basic Law: Human Dignity and Liberty and whether the violation was incompatible with s. 8 of that law, and the consequences of such a violation.

Each of the nine judges wrote a separate opinion. The primary approach of the Court is set out in the opinion of President Barak. According to President Barak, the Knesset’s authority to frame a constitution derives from the doctrine of constituent authority. The Knesset derives its constituent authority from the First Knesset by means of constitutional continuity. This view of the Knesset’s constituent authority best reflects the national consciousness and legislative history of the State of Israel. The Knesset, therefore, acts in two capacities. It enacts laws as a regular legislature, and it adopts Basic Laws in its capacity as constituent assembly. Basic Laws so enacted enjoy supra-legislative, constitutional status. Judges Bach, Goldberg, Levin, Mazza, Tal, and Zamir concurred in their separate opinions.

Former President Shamgar based the Knesset’s authority to frame a constitution upon constituent authority deriving from the Knesset’s unlimited sovereignty. It is the Knesset’s unlimited sovereignty that underlies its authority to frame a supra-legislative constitution that can limit the legislative power of future Knessets.

In his dissenting opinion, Justice Cheshin agreed that the First Knesset was granted the power to frame a constitution, but argued that the First Knesset’s constituent authority was not transferable, and it was not transferred to subsequent Knessets. Moreover, According to Cheshin, J., constituent authority must be unequivocal, yet Court precedent and Israel’s legislative history do not reflect such a clear view of the Knesset’s authority, and the legislative history of the Basic Laws does not support a conclusion that the Knesset believed it was adopting legislation of a constitutional nature in enacting them.

The Court unanimously held that although the Amending Law violated the property rights of creditors, the provisions of the Amending Law were consistent with the requirements of s. 8 of Basic Law: Human Dignity and Liberty. The appeal in CA 6821/93 was therefore dismissed, and the appeals in CLA 1908/94 and CLA 3363/94 were upheld and the decisions of the District Court were set aside.

(Per Shamgar, P.) The Basic Law did not infringe pre-existing laws, but applies only to laws adopted following its entry into force. The Amending Law was adopted following the entry into force of the Basic Law.

Two primary theories explain the Knesset’s power to enact legislation of a constitutional nature: The theory of unlimited sovereignty and the theory of constituent authority. Of theses two theories, that of unlimited sovereignty more accurately expresses Israel’s legislative history, its accepted legal concepts, and the case law of the Supreme Court.

The Knesset has the power to enact laws of every type and content, and can formally or substantively entrench the fundamental values of the State of Israel, and thereby limit its own power and that of subsequent Knessets. The extent of the Knesset’s power to limit itself is a question of constitutional policy. Both the theory of unlimited sovereignty and that of constituent authority recognize the Knesset’s power to limit itself.

In terms of preferred law, a Basic Law should be changed only by another Basic Law. In this regard, a distinction must be drawn between changing a right as opposed to infringing it. An infringement does not change the basic right.

(Per Barak, P.) The Knesset’s power to adopt a constitution derives from its constituent power. The source of the Knesset’s constituent power is the sovereign, that is, the people. This approach can be grounded upon three models: 1) constitutional continuity, 2) the recognition rule, 3) the best explanation for the socio-historical and legal history of the system.

Regardless of the legal situation that existed following the dissolution of the First Knesset, and even if there never was a Constituent Assembly, Israeli law currently recognizes the power of the Knesset to adopt a constitution. This is supported by the Knesset’s understanding of its role, the platforms of the various political parties, the consensus of opinion of jurists and legal scholars, the decisions of the Supreme Court, and the Knesset’s reaction to those decisions.

Due to the fact that a Basic Law is of a higher normative level, it can only be changed by another Basic Law.

In wielding its constituent power, the Knesset can limit its authority to change Basic laws, and thus create “rigidity” of constitutional provisions. The Knesset’s power to limit itself and thus entrench the provisions of a Basic Law derives from its authority to adopt a formal constitution.

The theory of constituent power addresses the question of the Knesset’s authority to limit its own power when wielding constituent power, but it does not provide an answer to the question of whether the Knesset can limit itself when it employs its normal legislative power. This question can be left for further review. We can also leave for further review the question of whether there is a substantive difference between the entrenchment of a regular law that requires an absolute majority, as opposed to a provision requiring some greater majority.

True democracy recognizes the constitutional power to entrench basic human rights against the power of the majority. This limit upon majority rule does not infringe democracy, but rather realizes it. Granting the majority the power to harm the rights of the minority is undemocratic. Protecting the individual, the minority, and the fundamental values of the legal system against the power of the majority is the democratic act.

A democracy of the majority alone that is not accompanied by a democracy of values is but a formal, statistical democracy. True democracy limits the power of the majority in order to protect society’s values.

The human rights defined in the Basic Laws in absolute terms are relative rights. Human dignity, liberty, property, movement, privacy and freedom of occupation are not absolute rights, but can be infringed in order to preserve the social framework. The constitutionality of the infringement does not diminish the constitutional status of human rights. The constitutionality of an infringement means that a regular law that meets the conditions established by the constitution can infringe a constitutionally protected human right.

When the Basic Laws do not state the remedy for the infringement of a constitutional right, legal tradition provides the conclusion that the remedy for an unconstitutional law is abrogation by the courts.

A law is presumed to be constitutional, and a party seeking to challenge that presumption bears the burden of proof. As for the constitutionality of an infringement, the burden falls to the party arguing that the infringement is constitutional. This is the appropriate approach, as it places the burden upon the party best suited to bear it, viz. the state. However, inasmuch as the issue does not arise in the case before the Court, it can be left for further review.

(Per Cheshin, J.) In addressing the question of whether the Knesset possesses constituent power, a distinction must be drawn between the power to adopt a formal constitution and the power to adopt entrenched laws. The power to adopt entrenched laws does not, in and of itself, imply constituent power.

When the Constituent Assembly – the First Knesset – completed its term without adopting a constitution, the Knesset’s right to adopt a constitution in accordance with the Declaration of Independence ceased. The only continuity that was preserved was in regard to legislation, not constitutional issues. The Constituent Assembly’s authority to adopt a constitution was a one-time, non-transferable power.

The Knesset does not have constituent authority, nor does it enjoy unlimited sovereignty. The Knesset is the Knesset, and it possesses only legislative authority.

Insofar as the Knesset’s power to limit itself, a distinction must be drawn between procedural limitation by requiring a special majority, and substantive limitation.

Once the Knesset has established legislative procedures, it must follow those procedures until it expressly repeals them and replaces them with new procedures. The establishing of new procedures must be carried out in accordance with the old procedures. In other words, the Knesset is limited by the procedures that it establishes in regard to legislative procedure.

The question of quorum and that of voting are matters of organizational procedure. The voting rules are established in Basic Law: The Knesset, which establishes that the Knesset decides in accordance with the democratic principle of majority and minority, and that the votes of absent and abstaining members are not counted. In the absence of a constitution that establishes otherwise, the Knesset can decide upon any combination of the variables of quorum, absentees and abstainers, and any combination will be legitimate and legal. The one limitation is that of the principle of democracy. The basic democratic principle of “majority” must be preserved.

A requirement of an absolute majority of sixty-one votes is not only consistent with the majority principle it is the principle itself. An absolute majority is not a special or privileged majority, but rather it is the true majority derived from the democratic theory of majority. A requirement of an absolute majority is not an instance of self-limitation. Such a requirement limits the possibility of abstention or setting off, but the ability to abstain or to arrange a set off is not one of the elected representative’s rights.

In the current legal regime, and in the absence of the power to adopt a constitution, a provision requiring a majority greater than sixty-one votes is manifestly undemocratic. A sixty-one vote majority is the upper limit, and in establishing anything beyond that the Knesset deviates from its authority.

The power to abrogate Knesset legislation should be reserved exclusively to the High Court of Justice. The doctrine that applies to secondary legislation is not appropriate to primary legislation.

Once it has been shown that a law infringes a basic right, the burden of proof falls to the party claiming that the law is constitutional. The presumption that the law is constitutional applies to the secondary evidentiary burden, as opposed to the burden of proof that must be born by the governmental authorities.

(Per D. Levin, J.) The Basic Laws constitute chapters of the Israeli constitution. The framers of Israel’s Declaration of Independence intended that legislation be effected on two parallel levels: A constitution to be adopted by the constituent authority, which would express the fundamental human rights on the basis of the vision of Israel’s prophets, and the regular, day-to-day legislation to be conducted by the legislature.

The Declaration of Independence indicates that the source of the Knesset’s authority to adopt a constitution is its constituent power. The fact that there have been delays in the process of adopting a constitution since the election of the Constituent Assembly does not change or influence the source of the legislature’s authority in advancing constitutional legislation. Constituent power continues to exist until the task of adopting a constitution is completed.

The party claiming the infringement of a basic right or who challenges the lawfulness of a law due to such infringement bears the burden of showing that a constitutionally protected basic right was infringed. If that burden is met, then the burden of showing that the law meets the justifying conditions passes to the party seeking to uphold the law.

(Per Zamir, J.) The Knesset’s power to limit itself, both formally and substantively, derives from its status as a constituent assembly. The theory of constituent power provides an adequate theoretical explanation and a practical tool for the Knesset and the Court to address constitutional issues, and is the preferable theory.

(Per Bach, J.) In principle, there is no difference between a requirement of a sixty-one-vote majority to amend or repeal a law and a more extreme requirement. A law is adopted by a regular majority of those participating in the vote. Absence or abstention is the right of every Knesset member. If the Knesset is not empowered to adopt constitutional legislation, and if a subsequent Knesset can repeal any law by the normal means, then it is difficult to understand why a law requiring a sixty-one-vote majority would be an exception.

The fear of negative phenomena that may materialize in the future by recognition of the Knesset’s unlimited power to employ Basic Laws to limit the power of subsequent Knessets to change or amend Basic Laws is more theoretical than real. It may be assumed that in a proper democracy, certain things will not occur.

The question of who bears the burden of proof is very relevant to the question of whether the Amending Law meets the requirements of s. 8 of Basic Law: Human Dignity and Liberty, and should be addressed. Once established that the law infringes the right to property, it is necessary to ask who must bear the burden of showing that the law meets the requirements of the Basic Law.

A law that infringes liberty or property or some other basic right is not presumed, a priori, to be void, and it will not be deemed void unless proven otherwise. The presumption must be that a law has been duly enacted, unless it is shown that it infringes a basic right and does not meet the requirements of s. 8 of the Basic Law. Anyone claiming that a law should be declared void must convince the court of the facts of the infringement and show that the law does not meet the conditions set out in the Basic Law.

(Per Tal, J.) The case before the Court does not require that the Court decide upon the fundamental questions regarding the powers of the legislature and its status, and they may be left for the appropriate time. For the purpose of the matter before the Court, it is sufficient to establish the normatively superior status of the Basic Laws by which the Knesset’s regular legislation is reviewed.

(Per Goldberg, J.) Harmony amongst the branches of government requires drawing a “red line” between judicial review of legislation and involvement in legislation. The court must be careful not to cross the line. The court is not a substitute for the legislature, and it does not supplant the legislature’s discretion with its own. Therefore, only a finding that the legislature did not meet the conditions of s. 8 of Basic Law: Human Dignity and Liberty requires that a law be declared unconstitutional. Any other intervention by the court would blur the borders required by the separation of powers.

In examining the constitutionality of a law, the presumption is that the law is constitutional, and any doubt must weigh in favor of upholding the law rather than voiding it. Therefore, the party arguing against the law must bear the burden of proof that the law is unconstitutional. That party must show that the law extremely deviates from the scope of a reasonable infringement intended for a proper purpose. The burden also includes the secondary evidentiary burden of showing that there is a specific alternative that would realize the proper purpose while inflicting substantially lesser harm to the protected right.

(Per Mazza, J.) In terms of the burden of proof, the state bears the burden of convincing the court that the infringement is intended for a proper purpose, and that the means chosen are appropriate to achieving that purpose. The party claiming that the infringement is unconstitutional bears the burden of showing that the government should have chosen a less harmful alternative. However, it is not clear that this must always be the case. It may be that this is the correct approach only in regard to economic harm, whereas the infringement of other basic rights may justify placing the entire burden upon the state.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Government, Constitutional Law -- Judicial Review, Constitutional Law -- Legislation

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