Judicial Review of the Legislative Process - Background Required in Summary
- Judicial review of the legislative process raises, as is well known, a particular complexity. Its scope is narrow, and reflects "a delicate balance between the need to ensure the rule of law in the legislature and the need to respect the uniqueness of the Knesset as the elected body of the people" (High Court of Justice 5131/03 Litzman v. Speaker of the Knesset, IsrSC 59(1) 577,585 (2004) (hereinafter: the Litzman case); see also: High Court of Justice 652/81 Sarid v. Speaker of the Knesset, IsrSC 36(2) 197,202-204 (1982); High Court of Justice 761/86 Mi'ari v. Speaker of the Knesset, IsrSC 42(4) 868,874 (1989); Kwantinsky case, paragraphs 35-40; High Court of Justice 3964/23 The Movement for Quality Government in Israel v. Knesset, paragraphs 5-6 of my opinion [Nevo] (July 31,2025); Suzie Navot, "Twenty Years of the 'Remnant' Test: A New Study of Judicial Supervision of Parliamentary Proceedings, " 19 Law Studies 721,771-772 (2003)). A 'classic' case of a flaw in a legislative process, which may justify judicial intervention in the validity of a law, is a material violation of a provision of the Knesset Regulations:
"In order for a 'law' to be passed, the provisions of the bylaws regarding the legislative proceedings must be complied with. These proceedings - with regard to a bill on behalf of the government - are based on the three readings (in the plenum) and the discussion in the committee (after the first reading and in preparation for the second reading). If one of these stages is absent, such as one of the readings not being held, or the vote did not receive a majority, or there was no discussion in the committee, or if there was a flaw in one of these proceedings that goes to the root of the proceeding, the proposal does not constitute legislation, and an authorized court - whether by direct attack or indirect attack [...] - To declare the 'law' null and void" (HCJ 975/89 Nimrodi Land Development Ltd. v. Speaker of the Knesset, IsrSC 45(3) 154,158 (1991) (hereinafter: the Nimrodi case); see also: Litzman case, pp. 588-590; Civil Appeal 6821/93 United Mizrahi Bank Ltd. v. Migdal Kfar Cooperative, IsrSC 49(4) 221,533-533 (1995) (hereinafter: the Mizrahi Bank case); and compare: Ariel Bendor, "The Constitutional Status of the Knesset Regulations", Mishpatim 22,571,581-584 (5754)).
- At the same time, we have both learned that not every defect in the legislative process justifies a consideration of the validity of a law; for this purpose, a "defect that goes to the root of the matter" is required (HCJ 8238/96 Abu Arar v. Minister of the Interior, IsrSC 52(4) 26,36 (1998) (hereinafter: the Abu Arar case)), which embodies "a severe and significant violation of the basic principles of the legislative process in our parliamentary and constitutional regime" (HCJ 4885/03)The Israel Poultry Breeders Association Cooperative Agricultural Society Ltd. Government of Israel, IsrSC 59(2) 14,42 (2004); see also, for example: High Court of Justice 6133/14 Gurevitz v. Knesset of Israel, para. 34 [Nevo] (March 26,2015); High Court of Justice 8612/15 The Movement for Quality Government in Israel v. The Knesset, para. 11 [Nevo] (August 17,2016)). Among these principles can be enumerated, it was held, "the principle of majority decision; the principle of formal equality (according to which 'one vote for everyone' from the members of Knesset); the principle of publicity; the principle of participation (according to which every member of Knesset has the right to participate in the legislative process)" (Poultry Breeders, p. 43; Kwantinsky case, para. 50).
On a 'New Subject' in Legislation
- The main argument in our case on the procedural level is that the amendment that was passed deviates from the subject matter of the original bill, in contravention of the provision of section 85 ofthe Knesset Regulations (hereinafter: the Regulations). Section 85(a) of the Regulations states as follows:
"A committee may amend a bill that it is discussing in accordance with this chapter, and it may also amend sections of the law that were not mentioned in the text of the bill that was approved in the first reading, provided that the amendments do not deviate from the subject matter of the bill" (emphasis added - v. S.).