From the court's archivePetition to the High Court of Justice

רוני בר- און ח"כ ואח' נ' כנסת ישראל ואח'

HCJ 4908/10 was decided on 7 April 2011.

The court's decision, in its own words.

The Supreme Court also rejected the argument that it is appropriate to invalidate the Basic Law, because it changes the balance of forces between the Knesset and the Government in the budget approval process, in a manner that impairs a pivotal principle of democracy in Israel. According to the ruling, this argument brings up the doctrine of the unconstitutional amendment to the Constitution and raises the possibility for the Court to repeal a Basic Law because it impairs basic principles of our legal system. The Court pointed out that this doctrine has been extensively discussed in foreign legal systems and has also been mentioned in a number of obiter dicta in the case law handed down by the Israel Supreme Court, but has not yet been used in Israel. The Court ruled that there are, indeed, basic principles that cannot be changed, which underlie our existence as a society and a state, and that impairment of those principles will give rise to grave questions of authority, including doubts about whether this would constitute a change in the Constitution or the establishment of a new Constitution. In this case, however, and without deciding on the question of the applicability, or the scope of the applicability, of the doctrine of the unconstitutional amendment to the Constitution in Israel, the harm caused to the Knesset as the result of the shift to a two-year budget does not constitute an impairment of the supreme principles of our legal system in such a way as to justify the repeal of the Basic Law by virtue of the doctrine of the unconstitutional amendment to the Constitution. The Court pointed out that, in light of the fact that the endeavor of Israel’s Constitution has not yet been completed, there is doubt as to the applicability, or the scope of the applicability, of this doctrine in Israel.

The ruling came on 7 April 2011.

Court: The Supreme Court
Case: HCJ 4908/10
Opened: 2010
Decided: 7 April 2011
Length: 3 pages

This is how to cite the ruling.

בג"ץ 4908/10 רוני בר- און ח"כ ואח' נ' כנסת ישראל ואח' (7.4.2011)

The full text of the ruling, in the Hebrew the court gave it in.

פסק-דין

High Court of Justice 4908/10 Bar-On v. Israel Knesset

Abstract

In the judgment, which was handed down by a bench of seven judges headed by Supreme Court President D. Beinisch, the Court was required to examine the constitutionality of the Basic Law: The State Budget (Special Provisions) (Temporary Order) (hereinafter: the Basic Law), which specified that the state budget for the years 2010-2011 would be a two-year budget. This was in contravention of Section 3 of the Basic Law: The State Economy, which specifies that the state budget will be determined each year. The Court, in a judgment handed down by President D. Beinisch, ruled that the Basic Law was constitutional and that, within the framework of the currently existing legal system in the State of Israel, it was not appropriate to intervene therein.

In the judgment, the Court addressed the question of whether it was possible to expropriate a constitutional principle that is anchored in the Basic Laws in a temporary order, whose period of applicability is determined exclusively as the term in office of the present Government. In order to answer this question, the Court initially examined whether the Basic Law was a Basic Law for all intents and purposes. It did so in light of the fact that the Law in question was enacted by way of a temporary order, which applied to the state budget for the years 2010-2011 only. In response to this question, the Court ruled, first, that the generally accepted test in Israel for the identification of Basic Laws, which constitute part of the future Constitution of the state, is a test which is essentially formal in nature. In other words, a Basic Law will be deemed to be such if its title includes the words “Basic Law” and does not include the year of its enactment. However, the Court left, for future study, the possibility that a more complex test for the identification of Basic Laws would be applied in the future and that, within such a test, the content of the piece of legislation and its suitability for serving as part of the Constitution of the state would also be examined.

Second, with regard to the question of whether it was possible to enact a Basic Law by way of a temporary order, the Supreme Court ruled that the enactment of a temporary constitutional arrangement detracts from the status of the Basic Laws and that it would be best to use this tool sparingly, if at all. The Court ruled that the use of a temporary order is likely to be deemed, in certain cases which would be examined on their own merits, as an “abuse” of the heading “Basic Law.” However, the Court pointed out that, in the absence of a Basic Law: Legislation, which outlines the manner in which Basic Laws are to be enacted, amended and modified, it is not appropriate rule that a Basic Law in the form of a temporary provision is inherently null and void.

The Supreme Court criticized the ease with which Basic Laws in Israel can be changed. The Court pointed out that, along with entrenching the constitutional concept and the supremacy of the Basic Laws in Israel, the fact that there is no unique procedure for adopting or amending Basic Laws detracts from their status as part of the emerging Constitution of the state. In this context, the Court pointed out the need for enacting a Basic Law: Legislation and called for the completion of the constitutional endeavor.

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The court's decision, in its own words.

The ruling came on 7 April 2011.

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The full text of the ruling, in the Hebrew the court gave it in.

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