Constitutional Law Bar Ilan

Section 4 of the Freedom of Occupation Law - Path 1 on Infringement - Limitation Clause

Cannot be violated except for a law that corresponds to the values of the State of Israel which is designed to serve an appropriate purpose, and to an extent no

greater than required or on the basis of a law, as aforementioned, by force of an explicit authorization therein

Essentially: Must be proportional and correspond with the values of Israel as a Jewish and democratic

Section 8 of the Freedom of Occupation Law - Path 2 on Infringement - Procedural Entrenchment Clause

Section 8 of the occupation law - procedural entrenchment or “rigidity” - infringement on this Basic Law will be valid if passed through a 61 majority and explicitly mentions that it is valid despite what is stated in the Basic Law

Infringing on the Basic Law - Freedom of Occupation

If you want to infringe on the freedom of occupation law, you have two paths. This is the only Basic Law that has a path to be infringed upon

1. Section 4 - you the parliament must be for an appropriate purpose, correspond with the values of the the state of Israel, and be proportional

• 2. Section 8 - Alternative requirements - must be a 61 majority, and explicitly state that it is valid despite what is stated in the Basic Law

State of Emergency

Since the establishment of the state, there has been a constant state of emergency in Israel, allowing the state to pass emergency legislation. However, there are limitations on this.

President Barak’s Opinion in United Mizrahi Bank v. Migdal Cooperative Village (1995): Israel’s Marbury v. Madison, part of the “constitutional revolution” (civil appeal, NOT HCJ)

According to President Barak’s Opinion:

• The Knesset’s authority to frame a constitution stems from constituent authority, passed on from the First Knesset by way of constitutional continuity

• The Knesset wears two hats: enacting regular everyday legislation, and also Basic Laws

• Basic Laws have a higher status than normal legislation

• The idea of judicial review: non-Basic Laws that violate Basic Laws are subject to judicial review

What are two basic features of a constitution?

At its core, a constitution must contain an institutional element. A Bill of Rights is not necessary, but is usually included supplementally.

Marbury v. Madison (1803)

Established judicial review within the United States: U.S. courts have the rights to strike down laws deemed unconstitutional.

Does the Knesset have the power to constitute a constitution (and to limit itself)?

Yes! From the First Knesset’s constituent authority, passed down by constitutional continuity.

What is the source of the Knesset’s authority?

The First Knesset (according to Barak)

Shamgar v.s. Barak (both arrived at the same conclusion using different arguments

Shamgar: (Sovereign Knesset theory): Knesset is the sovereign, omnipotent and supreme, it can do anything basically (including limiting itself and creating a Constitution) PARADOX, how can it be omnipotent if it can be limited?

Barak: There are two bodies actually (two crowns theory), constitutional assembly and regular Knesset (you can tell by the Basic Law heading whether it is acting as a constitutional assembly)

Normative Supremacy: Are Basic Laws Supreme to regular legislation?

Yes!

What is the status of a law that violates a Basic Law?

Nullified!

What happens if there is a conflict between two legislative items on the same level of the constitutional pyramid?

Specific overpowers general

Changing / Amending a Basic Law

• Cannot do it through regular legislation, you need another Basic Law

• Some of our basic laws have procedurally entrenchment clause (you cannot change this except by a special majority), in which you will need a Basic Law AND a majority required in that entrenchment clause (usually 61)

• Infringing on rights - must meet the requirements of the limitation clause. Must meet the values of the state, serve a suitable purpose and be proportional

• EXCEPTION: YOU ARE ALLOWED TO INFRINGE ON FREEDOM OF OCCUPATION EVEN IF YOU DON’T MEET THE REQUIREMENTS OF THE LIMITATION CLAUSE

What is the difference between an infringement and an amendment / change?

Infringement does not introduce new changes to the legislation

What is an infringement?

EX: Passing a law that says everyone who steals a car gets 5 years in prison. This violates / infringes upon the Basic Law on Human Rights and Dignity. Does it meet the requirements of the limitation clause? (proportional, meets the values, and serves a purpose). Infringements do not change the meaning of Basic Laws.

Structure of the Judiciary

In theory: there are supposed to be 15 Justices

In practice, there are 11 right now.

Does the court have the power of substantial judicial review of legislation?

Yes!

reasonableness clause

applies only to executive decisions, not legislative or constitutional law