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Judicial Review of the Legislative Process

Published online by Cambridge University Press:  04 July 2014

Suzie Navot
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Abstract

Should the process by which laws are enacted affect their legislative validity? This Article attempts to provide a justification for judicial review of the legislative process and suggests that the court should encourage legislative due process. Lawmaking means responsible lawmaking, and the court should thus be able to ensure a minimal due process of lawmaking by reviewing the legislative process. To date the Israeli Supreme Court has refrained from judicial review of Knesset legislation by virtue of flaws in the legislative process. Recently however, Supreme Court judgments seem to have endorsed a form of judicial review of the legislative process, at least de jure. This Article presents the theoretical and comparative frameworks for judicial review of the legislative process and scrutinizes the law in those countries that conduct judicial review of procedurally defective laws together with an examination of the particular features of the rules governing such review. In comparative law, the characteristics of judicial review of the legislative procedures are similar to those manifested in the question of judicial review of legislation, and based on the same premises. In Israel as well, judicial review of legislation is based on the existence of a supreme constitutional norm, of basic rights and fundamental principles. The Article concludes by proposing that the main characteristics of judicial review: constitutionality, proportionality, and restraint should dictate the relationship between the Supreme Court and the Parliament in all aspects of judicial review.

Type
Research Article
Information
Israel Law Review , Volume 39 , Issue 2 , Summer 2006 , pp. 182 - 247
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2006

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Footnotes

*

Senior Lecturer in Constitutional Law and heads the Public Law Division at the COLMAN Law School in Rishon Lezion, Israel. The Author thanks Prof. Daphne Barak-Erez and Dr. Barak Medina for their important remarks.

References

1 See HCJ 4885/03 The Poultry Growers' Organization v. The Government of Israel [2004] IsrSC 59 (2) 14 [hereinafter the Poultry Growers case]; HCJ 5131/03 Litzman v. The Knesset Speaker [2004] IsrSC 59 (1) 577 [hereinafter the Litzman case].

2 See HCJ 652/81 Sarid v. The Knesset Speaker [1982] IsrSC 16 (2) 197 [hereinafter the Sarid case] English translation, available at http://elyonl.court.gov.il/files_eng/81/520/006/z01/81006520.z01.htm (last visited July 11, 2006) that formulated the test for Supreme Court judicial review of internal parliamentary proceedings, but did not apply the test to the case in point.

3 This was the case in CA 6821/93 United Mizrachi Bank v. Migdal Agricultural Cooperative [1995] IsrSC 49(4) 221 [hereinafter the Bank Mizrahi case] that recognized the court's power to judicially review, and ultimately invalidate Knesset legislation. This case provided the theoretical framework for judicial review but did not nullify the statute discussed in the case.

4 In the footsteps of the American tradition, the Israeli Supreme Court established that the exercise of judicial review does not require explicit authorization. Much like in the American case, Madbury v. Madison, 5 U.S. 137 (1803) the Israeli Supreme Court arrogated itself the power to invalidate the Knesset's legislation, despite the absence of any constitutional provision authorizing it to do so.

5 As was decided previously in the 1980s in the Sarid case, supra note 2.

6 Zemach, Y., The Problem of Non-Justiciability of Parliamentary Procedures, 3 T.A.U. L. Rev. 752, 754 (1973)Google Scholar [in Hebrew].

7 HCJ 188/63 Batzul v. The Minister of Interior [1965] IsrSC 19 337, 343.

8 HCJ 306/81 Platto Sharon v. The Minister of Interior [1981] IsrSC 35 (4) 118.

9 HCJ 325/85 Miari v. The Speaker of the Knesset [1985] IsrSC 39(3) 122, 127.

10 See Tzemach, supra note 6; see also Navot, Suzie, The Sarid Test After Twenty Years: Revisiting Judicial Review of Parliamentary Decisions, 19 Mehkarei Mishpat 721 (2002)Google Scholar [In Hebrew].

11 The Sarid case, supra note 2, at 202.

12 Id. at 204.

13 HCJ 98/69 Bergman v. The Minister of Finance [1969] IsrSC 23(1) 693, an English translation is available at http://elyonl.court.gov.il/fileseng/69/980/000/z01/69000980.Z01.HTM (last visited July 11, 2006).

14 See Navot, supra note 10.

15 See, e.g., the Bank Mizrachi case, supra note 3; HCJ 6055/95 Tzemach v. The Minister of Defense [1999] 53(5) 241, an English translation is available at http://elyonl.court.gov.il/files _eng/95/550/060/i15/95060550.i15.htm (last visited July 11, 2006). See also HCJ 1715/97 Office of Investment Managers in Israel v. The Minister of Finance [1997] IsrSC 51(4) 36; HCJ 1030/99 Oron v. The Speaker of the Knesset [2002] IsrSC 56(3) 640.

16 HCJ 9070/00 Livnat v. Rubenstein [2001] IsrSC 55 (4) 800.

17 For a detailed discussion on unwritten fundamental principles, Rubinstein, Amnon & Medina, Barak, The Constitutional Law of Israel 593–605 (2005)Google Scholar [In Hebrew] and see Justice Cheshin's approach in HCJ 6427/02 The Movement for Quality in Government v. The Knesset [May 5, 2006] (not yet published).

18 See Bank Mizrachi case, supra note 3.

19 There are a number of Israeli rulings that “theoretically” recognize the authority for judicial review of a decision or legislative act that severely damages democratic values. The fundamental notion is that the court is vested with the power to declare the invalidity of a law that contravenes the basic tenets of the system. This notion was given judicial recognition by Justice Barak even prior to the constitutional revolution. See E.A. 1/65 Yeredor v. The Chairman of the Election Committee [1965] IsrSC 19(3) 365, mainly the opinion of Justice Zusman at 359, discussing the “meta”-principle of a democracy on the defense. See also HCJ 142/89 Laor Movement v. Knesset Speaker [1989] IsrSC 44 (3) 529, at 554; HCJ 4676/94 Mitrael v. The Knesset [1996] IsrSc 50 (5) 15.

20 See Rubintsein & Medina, supra note 17, at 593.

21 See supra note 17. Despite this view the Court decided by a majority of eight judges against Justice Cheshin's lone dissenting opinion, that the law is constitutional.

22 See Navot, supra note 10.

23 The State Economy (Arrangements) Law is an annual law passed along with the Annual Budget Law, in order to amend existent legislation. In comparative law it is known respectively as the Reconciliation Bill (USA); la ley de acompañamiento (Spain); la Loi Programme (France).

24 See the Poultry Growers' case, supra note 1, at 50-51.

25 This case triggered a public storm, and the opening of a criminal investigation leading to protracted proceedings for removal of immunity, and ultimately the filing of criminal charges against two Knesset members and an amendment to the Immunity (Knesset Members) Law.

26 With the concurring views of Justices Grunis and Joubran.

27 The Litzman case, supra note 1, at 586-585.

28 See, e.g., Justice Barak ruling in HCJ 761/86 Miari v. The Knesset Speaker [1989] IsrSC 42 (4) PD. 868, 873: “because legislative process are carried out in accordance with the law, and the organs of the Knesset that deal with legislation carry out a public function under law. From this it flows that legislative activities too are subject to the HCJ power of judicial review.”

29 Justice Cheshin in the Bank Mizrahi case, supra note 3, at 569. See also HCJ 975/89 Nimrodi Land Development v. The Knesset Speaker [1991] IsrSC 45 (3) 154 [hereinafter the Nimrodi case]. The Court stated that “[i]n order for a ‘law’ to be enacted, it is necessary to follow the instructions of the Regulations as they relate to legislative processes…if one of the stages is missing…the proposal does crystallize into a legislative act, and the court has the authority… to declare the invalidity of the ‘law.’” id. at 157.

30 The Poultry Growers' case, supra note 1, at 40, para 15.

31 Id.

32 Bergman v. The Minister of Finance, supra note 13, at 693.

33 The Sarid case, supra note 2, at 197.

34 For an in depth discussion see Navot, supra note 10 in the first part of the article, examining the theoretical frameworks.

35 Campos, P. Biglino, Los Vicios en el Procedimiento Legislativo 19–20 (1991)Google Scholar [Flaws in the Judicial Process]. For a discussion of the background to the change in the Continental Approach see Navot, supra note 10.

36 Two Supreme Court Justices broadened the discussion on the question of the court's authority to intervene with internal procedures of the Knesset, precisely in order to substantiate their view that that this type of authority—if it exists—is extremely limited. President Landau (principally in Platto Sharon v. The Minister of Interior, supra note 8) and the Deputy President Elon (particularly in HCJ 1635/90 Jerczewski v. The Prime Minister [1991] IsrSC 45 (1) 749; Welner v. The Israeli Labor Party [1995] IsrSc 49 (1) 758; Miari v. The Speaker of the Knesset, supra note 9; and Miari v. The Knesset Speaker, supra note 28.).

37 See discussion infra in the second part of this Article, Section IV.

38 The last few years have witnessed increasing discussion of the subject of judicial review of legislative processes in Congress. Justice Beinish's judgment in the Poultry Growers case includes numerous references and comprehensive examination of American literature on the topic of “Legislative Due Process.” For a more extensive discussion of American law, see infra.

For our purposes, regarding the link between constitutional judicial review and judicial review of the legislative process, see the comments of the following legal writers, Bryant, A.C. & Simeone, T. J., Remanding to Congress: The Supreme Court's New “On the Record” Constitutional Review of Federal Statutes, 86 Cornell L. Rev. 328 (2001)Google Scholar who write that: “It is far from clear that the Court's now well established authority to review statutes supplies any affirmative grant of power for the Court to influence Congress's deliberation prior to enacting a law…The Constitution itself both expressly and implicitly imposes limits on judicial intrusion into the workings of Congress” id. at 373.

39 See, e.g., HCJ 59/76 Ronen v. The Prime Minister [1976] (not published), which rejected the petition to disqualify a law that was enacted after an MK. was denied the opportunity of giving his reasons for his reservations regarding the draft bill. The petition was rejected in view of the MK's absence from the Knesset plenum during the debate on the draft proposal, and there was no ruling in principle on the question of the possible ramifications of being denied the opportunity of explaining a reservation regarding a draft bill. Based on Rubinstein & Medina, supra note 17, at 251, n.334.

40 Justice Or gave a similar ruling in HCJ 8238/96 Abu Arar v. The Minister of the Interior [1998] 52 (4) 26, 35.

41 Rubinstein & Medina, supra note 17. See HCJ 410/91 Blum v. The Knesset Speaker [1992] 46 (2) 201, 207.

42 HCJ 3424/91 The Tenants Protection Organization v. The Minister of Construction and Residence [1991] 45 (5) 340; HCJ 3468/03 Center of Local Councils in Israel v. The Government of Israel (not published) from Rubinstein & Medina, supra note 17.

43 The Poultry Growers' case, supra note 1, at 40 of Justice Beinish's judgment.

44 Justice Cheshin in HCJ 971/99 Movement for Quality of Government in Israel v. The Government of Israel [2002] IsrSC 56 (6) 117, 140

45 The Poultry Growers case, supra note 1, at 40 of Justice Beinish's judgment.

46 Id.

47 For elaboration on the Sarid test, see Navot, supra note 10.

48 Id.

49 The Litzman case, supra note 1, at 586-587 of President Barak's judgment.

50 Id. at para. 11 of President Barak's judgment

51 The first is The Sarid Test After Twenty Years: Revisiting Judicial Review of Parliamentary Decisions, Navot, supra note 10; and Suzie Navot, and the second is Setting the Salaries of MKs: The Deciders are also the Beneficiaries—in the Wake of HCJ 971/99 Movement for the Quality of Government v. Knesset Committee, 8 Hamishpat 253 (2004) [in Hebrew].

52 I refer here to the distinction between a legislative procedure, a quasi-judicial procedure, and an administrative procedure.

53 This argument would enable the disqualification of an internal Knesset decision based on the fundamental principles of the system, even if the Court until now has not declared the invalidity of a law based on those principles.

54 I will discuss the fundamental principles of the parliamentary regime in Section III B below.

55 The Poultry Growers case, supra note 1. at 49-50 (my emphasis S.N.).

56 The Litzman case, supra note 1 at 588.

57 Navot, supra note 10.

58 Decision 9/59, dated the 9th of March 1959.

59 Regarding the Spanish parliamentary system and its relevance for Israeli law with respect to intervention in parliamentary proceedings, see Navot, supra note 10 and Suzie Navot, El Control Jurisdiccional de los Actos Parlamentarios: un Análisis Comparado de la Evolución Jurisprudencial en España e Israel (forthcoming in 77 Revista Española de Derecho Constitucional 2006) [Judicial Review of Parliamentary Acts: A Comparative Analysis of the Jurisprudence's Evolution in Spain and Israel] (translated S.N.).

60 Discussed in, Castillo, Antonia Navas, El Control Jurisprudence's de los Actor Parlamentarios sin Valor de ley 137 (2000)Google Scholar [Judicial Supervision Over Non-statutory Parliamentary Proceedings] 135.

61 Ley Orgánica—Special “organic” laws that derive directly from the Constitution and are in fact an interpretation of the Constitution.

62 Section 88 deals with a bill, and provides that bills will be confirmed by a ministerial committee, that presents them to the House of Representatives. They must be tabled together with a statement of the aims and precedents required to enable informed discussion thereof. The section is worded as follows: Article 88 [Approval of Bills]: Bills shall be approved in the Council of Ministers, which shall submit them to the House of Representatives accompanied by an exposition of the motives and the antecedents which are necessary for action.

63 The Poultry Growers' case, supra note 1, at 40.

64 There are provisions of a constitutional character that are enacted in framework of a regular law. In this context Justice Barak ruled in Bank Mizrahi, that the Law of Return and laws concerning women's rights are laws of a constitutional “character.” In the parliamentary realm too there are provisions of this kind. For example, in my view Section 1 of the Knesset Members' Immunities, Rights, and Duties, 1951 which regulates the scope of the Knesset Member's unity in the fulfilling of his duties, is a constitutional provision. Immunity is a constitutional institution, defined clearly as such in most constitutions around the world. The frameworks for procedural immunity in Israel also bear constitutional significance.

65 HCJ 9070/00 Livnat v. Rubinstein, Chairman of Constitution, Law and Justice Committee [2001] IsrSC 55 (4) 800, at 809 (my emphasis S.N.).

66 The Litzman case, supra note 1, at 588.

67 Id.

68 A discussion of the legal status of parliamentary regulations is beyond the scope of this Article. For a discussion of defects that originate in the parliamentary regulations in Italy and in Spain, see Jimenez-Aparicio, E., Las infracciones delprocedimiento legislativo: algunos ejemplos, 3 Revista del Centro de Estudios Constitucionales (1989) 143–197 Google Scholar [Flaws in Parliamentary Procedures, Some Examples]; Campos, P. Bignilo, Los vicios en el procedimiento legislativo: Lapostura del Tribunal Constitucional en la Sentencia 99/87, 24 Revista Española de Derecho Constitucional (1998)Google Scholar; [Flaws in the Legislative Process: The Status of the Constitutional Court in Decision 99/87]; Cervatini, A., Il controlo di costituzionalita sui vizi del procedimiento legislativo parlamentare in alcuni recenti pronunce della Corte Costituzionalle Giustizia Costituzionalle (1985)Google Scholar [The Supervision of Constitutionality in View of Flaws in the Parliamentary Legislative Process in Some Recent Decisions of the Constitutional Court].

69 Certain scholars regarded this judgment as indicative of the Court's positive attitude to the possibility of invalidating a law due to a procedural defect. See Antonia Castillo, supra note 60, and in the book of Elviro A. Alvarez, infra note 95, at 250.

70 The petitioners claimed that under the pretext of amendments, the Senate had introduced provisions which should have been treated as bills for intents and purposes, being unrelated to the law under discussion.

71 The citation is from Biglino Campos, supra note 35 at 40 (unofficial translation S.N.).

72 Navas Castillo, supra note 60, at 137.

73 See Punset, R., Las Cortes Generales 87 (1983)Google Scholar. The Constitutional Court ruled that a violation of the Regulations would lead to the invalidation of the law only if there was a substantial violation of the procedure that created the will of the House.

74 Court decision no. 27, dated 14 October 1970 and decision 31 dated 5 March 1974.

75 In a disputed decision—No. 9/1959.

76 This decision was sharply criticized in the Italian literature, even by some of foremost experts of constitutional law, among them Prof. Pizorruso. See Cervati, A., Il controlo di costituzionalite sui vizi del procedimento legislativo parlamentare in alcune recenti pronuncie delta Corte Costituzionale, Guistizia Costituzionale 1 (1985)Google Scholar; See also Vall, Francesc Pau I, Parlamentoy Justicia Constitucional (1997)Google Scholar; Navas Castillo, supra note 60, at 136 which explains the Italian doctrine; Esposito, C. La Corte Costituzionale in parlamento G.C. 1959, at 62 from the book of Biglino Campos, supra note 35, at 25.

77 C.C. 78-96 D.C. 27 July, 1978.

78 C.C. 84-181 D/C/10 et 11 Oct. 1984; C.C. 89-261 D/C/ 28 July 1989; C.C. 99-274 D.C. 29 May 1990.

79 Rousseau, Dominique, Droit du Contentieux Constitutionnel 295 (6th ed. 2001)Google Scholar.

80 Compare to the right in Israel to propose amendments to bills after the bill has passed the first reading and been transferred to committee deliberations. The committee is authorized to proposed amendments to the bill “as it deems necessary.” All the same, the committee's power to propose amendments to bills is limited, in accordance with the Knesset Regulations: “Amendments that do not deviate from the subject of the bill”. The Knesset Committee has the power to decide in the event of a dispute in this context. Should it decide that the subject is a “new subject” the subject cannot be included in the bill. Rubinstein & Medina supra note 17, vol. 2, at 741, explain that the prohibition on raising a “new subject” at the stage of committee deliberations is intended to preclude a situation in which they are decided upon incidentally, without any appropriate public and parliamentary deliberation, inasmuch as it was not published in the draft bill which was published just prior to the first reading, and was not debated at the first sitting by the Knesset plenum.

81 C.C. 85-191 10 July 1985.

82 This ruling was given for an exceptional case, in which the parliament members presented three thousand proposals for amendments of the draft bill. The senate rejected the application for amendments, and the parliament members appealed the decision to the constitutional council, claiming a violation of their right to propose an amendment to a law. The constitutional council rejected their appeal, stating that although the senate had restricted their right to propose amendments, having consideration for the contents of the amendment, the violation could not be considered a substantive violation: “Cette restriction au droit d'amendement, qui droit être appréciée au regard du contenu des amendements don't il s'agit et des conditions générates du débat, n'a pas revêtu en l'espece uncaractère substantial.” C.C 93-3329 D.C. 13 January 1994.

83 In unofficial translation from the French source: “compte tenue de l'objet de ces amendements et des questions en débat, cette irrégularité – le rejet en bloc des 46 amendements - n'a pas revêtu un caractère substantial de nature à entacher de nullité la procédure legislative.” C.C. 93-334 D.C. 20 January 1994.

84 Regarding Italy and Spain, see detailed bibliography on the question of formal flaws and substantive flaws in the book of Castillo, Antonia Navas, El Control Jurisdiccional de los Actos Parlamentarios sin Valor de ley 133 opposite n.166 (2000)Google Scholar.

85 This is the definition of Campos, Biglino, Vicios en el Procedimento Legislativo, 4 Encyclopedia Juridica Basica 6848 (1995)Google Scholar. Cf. the principle of equality as a matter of “manner and form” or as a “substantive” matter, in the framework of the Foundations of the Budget Law. See Suzie Navot, , A Note on the Normative Status of the Budgetary Laws, 6 Hamishpat 121 (2001)Google Scholar [in Hebrew].

86 Justice Beinish in the Poultry Growers case, supra note 1, at 40.

87 See Justice Cheshin's opinion in the Bank Mizrahi case, supra note 3.

88 See the Nimrodi case, supra note 29; Also see the Litzman case, supra note 1, at 592, para. 18 (President Barak): “the Regulations provisions regarding the legislative process are binding upon the Knesset. Concededly, the Knesset may, under particular circumstances, change the provisions of the Regulations, but as long as it has not done so, it is obliged to follow them… a law enacted in violation of the basic values underlying the provision of the Knesset Regulations is a law of tainted validity.”

89 Rubinstein & Medina, supra note 17, at 250.

90 Prof. Barak-Erez writes that the traditional approach of administrative law was based on a rigid classification of defects: “This approach, which was suited to the world of law in the past, is not longer viable, given its disregard for developments in the world of law.” Barak-Erez, Daphne, Relative Invalidity in Administrative Law: The Price of Rights, Zamir Book on Law, Government and Society 285, 318 (2005)Google Scholar [In Hebrew].

91 The Poultry Growers case, supra note 1, at 40 (emphasis in the original text S.N.).

92 The Litzman case, supra note 1, at 585.

93 Rubinstein & Medina, supra note 17, at 256 (my emphasis S.N.). The authors also note the comments of Justice Zamir, in HCJ 3434/96 Hoffhung v. The Knesset Speaker [1996] IsrSC 50 (3) at 68 “In order for the court to invalidate a law, the breach [of a constitutional principle] must be neither negligible or minor, but glaring and significant.”

94 Navas Castillo, supra note 60.

95 Alvarez, Elviro Aranda, El Control Jurisdiccional 252–253 Google Scholar; Campos, supra note 60.

96 Zaorebelsky, G., Procedimento Legislative e Regolamenti Parlamentari—le Regioni No. 4 773 (1984)Google Scholar.

97 Although the fact that the Knesset has “Constitutent Power” is an outcome of the Bank Mizrahi decision, and has been criticized and even denied by many.

98 The Poultry Growers case, supra note 1, at para. 18 of Justice Beinish's judgment. President Barak too, in the Litzman case refers to the fundamental principles of formal democracy, together with the principles stemming from substantive democracy. See the Litzman case, supra note 1, at 588.

99 The Poultry Growers' case, id. at 43-44 of Justice Beinish's judgment. In the legislative process described in the judgment—of the Arrangements Law—it was not claimed that there had been any violation of any three of the four principles, apart from the principle of participation. Despite this, in her judgment, Justice Beinish enumerates the basic principles.

100 Biglino Campos, supra note 35, at 75. The Italian scholar Manzella notes in this context that the requirement for a quorum provides a guarantee for the representation principle, and is a crucial requirement in ensuring the legality of its decisions. Id. n. 38.

101 Kelsen, Hans, On the Essence and Value of Democracy 67 (Englard, Izhak trans., 2005) (1929)Google Scholar.

102 Save as otherwise provided by Law, the Knesset shall pass its decisions by a majority of those participating in the voting—those abstaining not being reckoned as participating - and the voting procedure shall be prescribed by the Rules.

103 The Poultry Growers' case, supra note 1, at 18.

104 The Litzman case, supra note 1, at 588.

105 Biglino Campos, supra note 35, at 76-77.

106 Article 69 of the Regulations, translates as such “No deliberations shall begin unless all of the information and documents constituting the basis of the deliberation were previously handed out to all of the participants entitled to participate in the plenum or in the committee, unless explicitly decided otherwise.” See Márquez, Piedad García Escudero, Reglamento del Congreso de los Diputadosy del Senado ch. 69 (1998)Google Scholar [The Regulations of the House of Representatives and the Senate of Madrid].

107 Campos, Paloma Biglino, Los Vicios en el Procedimento Legislativo 81 (1991)Google Scholar [Defects in the Legislative Process] (my emphasis S.N.).

108 Manzella, II Parlamento (1977).

109 This too is not an absolute right, because there are legally recognized restrictions on the right to participate in sittings, such as the sanction of being suspended from participation, pursuant to a decision by the Knesset Ethics Committee.

110 Biglino Campos, supra note 107, at 115-116.

111 President Barak may have been alluding to a similar idea in the Litzman case, supra note 1, at 590, when discussing the consequences of the defect in the legislative process: “where the legislative process is flawed, and the flaw damages the fundamental values of the regime, does it always result in the invalidity of the law, in the sense of it being nothing more than a ‘piece of paper’” (my emphasis S.N). The concept of a “piece of paper” is accepted in contracts law, in relation to the claim that a contract that was made purely for appearance's sake.

112 HCJ 6652/96 The Citizen's Rights Association v. The Minister of the Interior [1998] IsrSC 52 (3) 117, at 125.

113 This is the purpose of the free mandate, as explained in a previous article. Navot, Suzie, The Knesset Member as a Public Trustee, Mishpatim 31 (3) 433 Google Scholar [in Hebrew].

114 The establishment of the “Knesset channel” is an additional expression of the importance attaching to the principle of publicity. A television channel that permanently broadcasts parliamentary sittings is found in many democratic states.

115 Bilglino Campos, supra note 106, at 88-90.

116 In the Poultry Growers' case:

[A] legislature is a plural body. The equally elected and equally representative members are each other's formal equals…The elaborate decisional procedures within legislatures are designed to develop… a collective agreement. The collective judgment is best symbolized by roll call votes, in which each member has one vote just like every other member. Olson, D.M. Democratic Legislative Institutions—A Comparative View 5 (1994)Google Scholar.

117 Despite the fact that in Israel, as distinct from other parliaments over the world, the right to submit a draft bill is an almost absolute right, conferred equally to each and every Knesset member, whether belonging to the majority or the minority (apart from as provided in Article 134 (c) of the Regulations, regarding racist draft bills.

118 This completely denies the concept of an imperative mandate and any attempt to legally restrict the capacity of a Knesset member in voting and in the discharge of his duties.

119 HCJ 12002/04 Makhoul v. The Knesset [Sept. 13, 2005] (not published).

120 Yeredor v. Chairman of the Elections Committee, supra note 19.

121 HCJ 971/99 Movement for the Quality of Government v. The Knesset Committee [2002] IseSc 56(6) 117.

122 Mersel, Yigal, Suspending a Declaration of Voidability, 9 Mishpat Umimshal 39 (2006)Google Scholar [In Hebrew]. It is important to emphasize that in the context of this discussion, the relative voidability doctrine is of greater viability than the suspension of voidability doctrine. The reason for this is that when a law is struck down due to a flaw in the legislative process, particular importance attaches to the exercise of judicial discretion. The doctrine of relative voidability means that “despite the flaw, the result is relative, in the sense that for purposes of certain matters the act will be regarded as void, but not necessarily for other matters…the doctrine of the “relative consequence” presumes a distinction between the flaw and the invalidity…. In the relative consequence doctrine, the court decides in principle whether the flaw is sufficiently grave to justify the invalidation of the agency's act, and the choice is between the actual invalidation of the agency's act… and its non validation (id. at 46-47)

123 Field refers to the model of absolute voidability as the “The Void Ab Initio Theory”; the model of potential or relative voidability is referred to as “The Presumption of Validity Theory” See Field, O., The Effect of an Unconstitutional Statute 2–8 (1935)Google Scholar.

124 HCJ 6652/96 The Citizens' Rights Association v. The Minister of the Interior [1998] IsrSC 52 (3) 117.

125 This is the case in Spanish Law.

126 The Poultry Growers' case, supra note 1, at 41.

127 The Litzman case, supra note 1, at 588.

128 Hans, Linde, Due Process of Lawmaking, 55 Nebraska L. Rev. 197 (1976)Google Scholar.

129 Id. at 243. See also the analysis of Linde's article by authors Frickey, Philip P. & Smith, Steven S., Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique, 111 Yale L.J. 1707 (2002)CrossRefGoogle Scholar.

130 395 U.S. 486 (1969).

131 The three central judgments are: United States v. Lopez, 514 U.S. 549 (1995); Kimel v. Florida Board of Regent, 528 U.S. 62 (2000); and Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).

132 See Devins, Neal, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L. J. 1169 (2001)CrossRefGoogle Scholar; Kent, Harold J. Turning Congress Into an Agency: The Propriety of Requiring Legislative Findings, 46 Case Western L. Rev. 731 (1996)Google Scholar; Coenen, D.T., The Rehnquist Court, Structural Due Process, and Semisubstantive Constitutional Review, 75 S. Cal. L. Rev. 1281 (2002)Google Scholar.

133 The Poultry Growers' case, supra note 1, at 49.

134 In his article, Legislative Due Process and Simple Interest Group Politics: Ensuring Minimal Deliberation through Judicial Review of Congressional Processes, 79 N.Y.U. L. Rev. 367 (2004)Google Scholar.

135 A discussion of the theories of the adoption of public policy decisions exceeds the confines of this Article. Let me just mention that the connection between the due legislative process and adoption of public policy decision was already referred to by Philip P. Frickey & Steven S. Smith, Judicial Review and the Legislative Process: Some Empirical and Normative Aspects of Due Process of Lawmaking UC Berkeley Public Law Research Paper No. 63, available at http://ssrn.com/abstract=279433 (last visited July 11, 2006).

In their article the authors note that “for students of public policy, political science, and public administration, the emerging criteria for a due process of lawmaking have a familiar ring to them. They are characteristics of what is sometimes labeled rational policy-making processes that have been subject to extensive analysis and commentary.”

All the same, it is difficult to draw a parallel between the existing requirements in decision making processes by different bodies of government, and the decision making process of the legislature. The author too demurs with respect to utilizing public policy criteria for evaluating the legislative process, writing as follows:

However, when conflict of interest is present and when policy is therefore constructed through a competitive process of coalition building, bargaining, and voting, the Court is asking too much. It is asking that the outcome of that inherently political process be compatible with the outcome of a hypothetical rational policy-making process. It is asking Congress to become something it isn't…

136 HCJ 1843/93 Pinchasi v. The Israeli Knesset [1995] IsrSC 48 (4) 492.

137 The Court expressed its view on the flaws as such:

In view of the Knesset's special character, it cannot be required to comply with the full gamut of procedural requirements applicable to a quasi-judicial body (such as continual attendance at all stages of the proceeding), but there is a necessary minimum, without which justice is neither done, nor seen to be done. This minimum includes, inter alia, the presentation of the indictment (similar to the presentation of any other document on the basis of which the plenum is requested to act); this minimum includes providing an appropriate opportunity to examine the protocols of the Knesset committee, whose deliberations should guide the Knesset member in the plenum. This minimum includes—as in our case, in which the Knesset members were not given an opportunity of examining the indictment that detailed the facts of the case—a proper opportunity of examining the protocols of the Knesset plenum, so that even a Knesset member who was not present during all the deliberations, will be able to peruse the comments of his colleagues. These minimal requirements were not complied with, and as such, there was a violation of the petitioner's basic right to a fair quasi judicial deliberation,” id. at 495.

138 Id., Justices Barak, S. Levin and D. Levin.

139 See, e.g., Article 138 (b) of the Regulations, stating that “the committee will prepare the draft bill to be presented for first reading, for the Knesset debate….”; or Article 130 which states “where the committee has prepared the draft bill for the first reading in the Knesset, there will be a first reading of the draft as tabled by the committee” (my emphasis S.N.).

140 Regarding sections 138 (b) and 139 of the Knesset Regulations, which relate to draft bills submitted by Knesset members, the Knesset Legal Advisor, Adv. Tzvi Inbar wrote in an opinion dated 3 January 1989 that “if the draft was transferred [after the preliminary reading] to the committee, its task at that stage is to conduct a proceeding that is essentially similar to the proceeding conducted in the government prior to the tabling of a draft bill for a first reading in the Knesset. This is the stage at which the various ramifications are examined, and the appropriate wording is crystallized.”

141 Rubinstein & Medina, supra note 17, at 729.

142 The Knesset Research and Information Center has operated since the year 2000; since July 2003 the scope of its activities was extended to include providing economic and budgetary evaluations of draft—bills.

143 See HCJ 6061/99 Zeevi v. The Government of Israel [September 8, 1999] (not published) and HCJ 6124/95 Zeevi v. The Government of Israel [November 11, 1995] (not published). These changes deal with the government's duty to enable the Knesset Members to examine maps and all other relevant information pertaining to the negotiations with the Palestinian Authority (from Rubinstein & Medina, at 729).

144 The law states:

A draft bill submitted to the Knesset the implementation of which involves expenditure or contracting of a liability for expenditure out of the State Budget or the implementation of which involves a reduction in State revenue, shall indicate in the wording of the draft or in the explanatory note therefore, the method for financing the expenditure or the reduction.

145 See Section 3 C(c) of Basic Law: State Economy.

146 See HCJ 4572/03 National Council for Child Welfare v. The Government of Israel [May 25, 2003] (not published).

From the respondent's answers it emerges that the question of effect of the draft bill on children's rights was seriously discussed in the course of the expedited legislative process, both prior to and following the first reading. Considerable attention is also given to the matter in the explanatory note of the draft bill. Under these circumstances we are persuaded that even if the original draft law did not fully comply with the provisions of the Law of Providing Information Regarding the Influence of Legislation Upon Children's Rights–—and we are not required to formulate our position on this question—it is clear that this was not a grave breach of the law, of the kind that would justify judicial intervention in the legislative process

147 A copy of the proposal for the amendment of the Regulations on file with the Author.

148 HCJ 366/03 Association for Commitment to Peace and Social Justice v. The Minister of Finance [December 12, 2005] (not yet published).

149 Id. at, para. 21 of Justice Edmond Levi's judgment.

150 INS v. Chadha, 462 U.S. 919, 997 (1983) (White, J., dissenting).

151 Goldfeld, supra note 134.

152 Contra to the view of Tushnet, Mark, Fear of Voting: Differential Standards of Judicial Review of Direct Legislation, 1 Legis. & Pub. Pol'y 1 (1997)Google Scholar: “Why should a law's constitutionality turn entirely on whether the process by which it was enacted was sufficiently deliberative? For example, a law either is or is not a taking of property without just compensation, but the answer does not depend on how the law was adopted.”

153 HCJ 6028, 4773/94 Naot v. The Haifa Municipality [1996] IsrSC 49 (5) 111.

154 Id. at 381.

155 HCJ 8378/96 Habish v. The Minister of Religion, [1997] 51 (1) P.D. 145.

156 Id. at 154.

157 Goldfeld supra note 134, at 394.

158 Id. at 381.