The Israeli Law Professors’ Forum for Democracy, an unincorporated and voluntary group of experts on Israeli law and, specifically, on Israeli public law, is gravely concerned about looming initiatives to undermine the independence of Israel’s judicial branch of government, to subordinate it to the partisan and party-driven political considerations of the government, and to curtail the independence of civil-servant ministerial legal counsels to the government and its ministries.
This position paper focuses on the following question: does the majority in the Knesset have unlimited power? We reject the assertion that the Knesset can simply call any legislative act as a “basic law”, and thereby assume the authority to legislate absolutely any content it deems fit. We argue that Israeli law sets limits on the Knesset’s powers, and that if the Knesset were to overstep those boundaries—as will be the case if it enacts the proposed changes—that legislation would be null and void.
The policy paper holds that the Knesset’s legislative powers are restricted in two main aspects: the first is empirical, namely that broad agreement, both within the legislature and in the public, is a prerequisite for amendments that remove existing restrictions on governmental powers. The second is a substantive restriction, according to which amendments to basic laws must be consistent with the basic tenets of democracy.
We contend that even if the proposed changes to Israel’s basic laws may enjoy the support of the contingent majority in the current Knesset, they undermine the basic principles of democracy and are not widely accepted by the public. Therefore, we conclude that the Knesset lacks the power to enact them.
A detailed position paper in Hebrew is available on our website.