The Road to Stable Democracy

Knesset speaker: Israeli democracy needs to do away with its ambiguities and institute a clearer dialogue among its branches.

The recent oversight on the part of the High Court of Justice with regard to building a private prison and the right of a security suspect to due process resulted in the abrogation of provisions of legislation, and reignited the controversy over the intervention of the judicial authority in Knesset legislation.

Those who dared to publicly support enshrining the relationship between the judiciary and parliament through a Basic Law on Legislation were showered with insults, and accused of attempting to weaken the judicial branch and undermine its very authority to undertake any kind of judicial oversight.

These attacks are unfounded. No one disputes the fact that judicial criticism of the constitutionality of legislation is essential in a democratic system and constitutes part of the modern concept of checks and balances. There is no true democracy anywhere in the world that does not include some sort of judicial critique.

However, unlike other countries, Israeli democracy has gone only halfway. Since the Knesset enacted the Basic Laws and limited its discretion by means of overarching legislative norms, is has been clear that this action implies that the High Court has the authority to keep Knesset legislation in check - to the point of annulling it.

But the work has not been completed. The limitations of this oversight have never been fully interpreted: Which court may enact it, whow many judges and by what majority? What may constitute grounds for legislation to be struck down and how may the Knesset respond?

Lacking constitutional outlines, democracy in Israel is fated to continue suffering frequent crises. This lack of boundaries imposes a chaotic democracy on Israelis rather than a stable and harmonious one with a healthy internal balance among its components.

Years ago, as Knesset speaker, I urged then-Supreme Court president Aharon Barak to compromise and set aside his demand that a Basic Law grant total authority to the High Court to annul Knesset laws. I asked him to support a more moderate formulation that would allow the Knesset to take a law under advisement again after the High Court had declared it unconstitutional - being that only the Knesset's decision on the proper purpose and proportionality of its legislation is truly open to public scrutiny.

Barak refused my pleas. He agreed that clear rules of the game must be set and that the authority to strike down a law be given to a wider bench of more judges, but remained adamant in his position. He did so even though it was contrary to the principle of majority rule and the basic concept that the Knesset is the representative of the sovereign power.

A Basic Law on Legislation would have a historical and constitutional function. Beyond enshrining rules regarding various levels of legislation in Israel and their normative hierarchy, the law would determine proper means of ensuring the stability of Israel's democratic regime. It would place the judicial authority alongside the legislative authority, not instead of it or above it.

A Basic Law on Legislation would for the first time formally and openly enshrine the status of the High Court of Justice as a constitutional court. Moreover, the High Court would be authorized to declare a law unconstitutional by means of an expanded bench and a supermajority, returning the law to the Knesset for reconsideration by a means to be determined.

I believe that now more than ever, after more than 60 years of work toward a constitution, Israeli democracy needs to do away with its ambiguities and institute a clearer dialogue among its branches.

The writer, a Likud MK, is speaker of the Knesset.