Judicial Review of Knesset Decisions

תקציר

The idea that Knesset legislation is not subject to judicial review would seem to be a well-accepted and incontrovertible principle of Israeli constitutional law. On three occasions the Supreme Court has indeed declared a statute of the Knesset invalid, but only on the narrow grounds that it was not passed by the special majority required under another statute. The Court's stand against judicial review of legislation would seem to indicate that it acknowledges and bows to the supremacy of the Knesset as the first among Israel's branches of government, from which all law emanates. Thus it may seem surprising that in recent years, the Court has revealed a growing tendency to subject a range of Knesset decisions to judicial review. In one case it ruled that a decision of the Knesset plenum itself was invalid, in three cases it overruled decisions of Knesset organs, and in other cases it scrupulously reviewed the legality of Knesset and Knesset committee decisions. The purpose of this paper is to canvass the approach of the Court towards judicial review of Knesset decisions of all types. I shall begin with a review of the attitude of the Court on the principle of Knesset sovereignty in the field of legislation and the grounds for adoption of this principle by the Court. I shall then proceed to review the one apparent exception to that principle - the case of entrenched clauses in Basic Laws - and show that the theoretical underpinnings of this exception have never been fully explored, and that in fact it need not be regarded as a real breach of parliamentary sovereignty on which judicial review of legislation must necessarily rest. Next I shall embark on a critical examination of the decisions in which the Court has gradually, but surely, extended its net of review over all Knesset decisions, barring primary legislation. Finally, I shall discuss whether the activist stand of the Court towards intervention in parliamentary decisions points in the direction of an inevitable revision in the stand on judicial review of legislation.