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The Platonic Conception of the Israeli Constitution
273
The Harari decision, however, did not close the door on a constitution. The
decision is very short and is cited here in its entirety:
The first Knesset directs the Constitutional, Legislative and Judicial
Committee to prepare a draft Constitution for the State. The Constitution
shall be composed of separate chapters so that each chapter will constitute
a basic law by itself. Each chapter will be submitted to the Knesset as the
Committee completes its work, and all the chapters together shall be the
State’s constitution.
12
The decision was devised so as to avoid a constitution at that stage, but allow
for its adoption at a later stage if the political will for that existed. It was also
devised so as to give an appearance of faithfulness to the commitment in the
Declaration of Independence to have a constitution. As a typical compromise
decision it intentionally left unsettled several pertinent questions. First, it set
no deadline to the completion of the draft constitution (and indeed since no
deadline was set, the work has not been completed up to today). Second, it
set no special process for the adoption of these Basic Laws that would serve as
the draft of the constitution (therefore they are adopted until today in an ordi-
nary process of legislation as any other regular law of the Knesset). Third, it
did not mention which institution is to decide that the draft is complete, how
the different Basic Laws are to be collected and compiled, and whether there
will be a separate process of adoption and ratification of the entire document,
and if so, how would it look like (until today there has not been a decision
to the effect that the draft work has been completed and there has been no
attempt to collect together the different Basic Laws). Finally, and most impor-
tantly to the unfolding of the story, it did not mention what would be the status
of these Basic Laws during the interim period until they are collected into a
constitution – whether they will have the status of regular laws, or a different
status.
The political community interpreted the Harari decision as a decision
to defer the question of a constitution to a later stage, but did follow the
framework it provided and enacted several Basic Laws. The first Basic Law
was enacted eight years after the Harari decision, in 1958 – Basic Law: The
Knesset. All in all, until 1992, the Knesset enacted nine Basic Laws at a pace of
once every few years. They were all enacted in a regular process of legislation,
12
5 Knesset Protocols 1743 (1950) (Hebrew). The English translation is taken from the Israeli
Knesset website, “The Constitution”:
www.knesset.gov.il/description/eng/eng_mimshal_hoka
.htm#4
.
274
Iddo Porat
and all of them dealt with the basic institutions of government.
13
There were
attempts along the way to push forward for a completion of the Basic Laws,
and for their adoption as a full constitution including a Basic Law: Bill of
Rights, with a complete list of rights, but they did not come to fruition.
14
In terms of their normative status, the Basic Laws were not given superiority
over other laws and were regarded as regular laws. This was the doctrine in
Supreme Court adjudication, made explicit in several decisions, including
decisions that gave effect to laws conflicting with a Basic Law, according to the
principle of lex posterior.
15
One fact blurred this picture, but not substantially. Some of the Basic Laws
included entrenched provisions. Thus, section 4 of Basic Law: the Knesset,
discussing the type of elections, contains the following provision: “this
section shall not be changed save by a majority of the members of the
Knesset” (meaning at least sixty-one of the one-hundred and twenty Knesset
members). Section 46, referring to this section, maintained that “under this
section, ‘change’ is either explicit or implicit.” In one case, in 1969, the Court
invalidated a law that implicitly conflicted with section 4 of Basic Law: The
Knesset, but was not enacted by a majority of Knesset members. Striking
down the law, however, the Court explicitly maintained that it was not doing
this on the assumption that Basic Laws are of a constitutional status higher
than regular laws, but on the assumption that the Court would give effect to
rules set by the Knesset, regarding the procedure of legislation, including rules
regarding entrenchment.
16
13
Basic Laws: The Knesset (1958), Israel Lands (1960), The President of the State (1964), The
Government (1968, reenacted in 2001), The State Economy (1975), The Army (1976), Jerusa-
lem, The Capital of Israel (1980), The Judiciary (1984), The State Comptroller (1988). See the
Knesset website: “Basic Laws”
www.knesset.gov.il/description/eng/eng_mimshal_yesod.htm
.
The process of legislation of Basic Laws is the same as of any other governmental bill (i.e., a
regular majority of the Knesset Members present in all three readings) except for the fact that
they are initiated by the Knesset Constitution, Legislation, and Law Committee and bear a
different title than regular laws. See Suzie Navot, The Constitutional Law of Israel (Kluwer
Law International, 2007) 48–9.
14
For a description of these attempts see CA 6821/93, United Mizrachi Bank Ltd. v. Migdal
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