Judicial review of the legislative process

Israel Law Review

Volumn 39, Issue 2, 2006, Pages 182-247

  Navot, Suzie ^a  

^a Louis Brandeis Institute for Society Economy and Democracy   (Israel)

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EID: 84964490025     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700013066     Document Type: Article

References (179)

1. See HCJ 4885/03 The Poultry Growers' Organization v. The Government of Israel [2004] IsrSC 59 (2) 14 [hereinafter the Poultry Growers case]
2. HCJ 5131/03 Litzman v. The Knesset Speaker [2004] IsrSC 59 (1) 577 [hereinafter the Litzman case].
3. 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/zO 1/81006520. zOl.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.
4. 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.
5. 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.
6. As was decided previously in the 1980s in the Sarid case, U.S.
7. Y. Zemach, The Problem ofNon-Justiciability of Parliamentary Procedures, 3 T.A.U. L. Rev. 752, 754 (1973) [in Hebrew].
8. HCJ 188/63 Batzul v. The Minister of Interior [1965] IsrSC 19 337,343.
9. HCJ 306/81 Platto Sharon v. The Minister of Interior [1981] IsrSC 35 (4) 118.
10. HCJ 325/85 Miari v. The Speaker of the Knesset [1985] IsrSC 39(3) 122,127.
11. See Tzemach, IsrSC
12. see also Suzie Navot, The Sarid Test After Twenty Years: Revisiting Judicial Review of Parliamentary Decisions, 19 Mehkarei Mishpat 721 (2002) [In Hebrew]
13. The Sarid case, The Sarid Test After Twenty Years: Revisiting Judicial Review of Parliamentary Decisions, at 202.
14. Id. at 204.
15. 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/files_eng/69/980/000/z01 /69000980.Z01.HTM (last visited July 11, 2006).
16. See Navot, IsrSC.
17. See, e.g., the Bank Mizrachi case, IsrSC
18. HCJ 6055/95 Tzemach v. The Minister of Defense [1999] 53(5) 241, an English translation is available at http://elyon 1 xourt.gov.il/files _eng/95/550/060/i 15/95060550.i 15.htm (last visited July 11,2006).
19. See also HCJ 1715/97 Office of Investment Managers in Israel v. The Minister of Finance [1997] IsrSC 51(4) 36
20. HCJ 1030/99 Oron v. The Speaker of the Knesset [2002] IsrSC 56(3) 640.
21. HCJ 9070/00 Livnat v. Rubenstein [2001] IsrSC 55 (4) 800.
22. For a detailed discussion on unwritten fundamental principles, Amnon Rubinstein & Barak Medina, The Constitutional Law of Israel 593–605 (2005) [In Hebrew]
23. see Justice Cheshin's approach in HCJ 6427/02 The Movement for Quality in Government v. The Knesset [May 5,2006] (not yet published).
24. See Bank Mizrachi case, HCJ 6427/02.
25. 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.
26. See also HCJ 142/89 Laor Movement v. Knesset Speaker [1989] IsrSC 44 (3) 529, at 554
27. HCJ 4676/94 Mitrael v. The Knesset [1996] IsrSc 50 (5) 15.
28. See Rubintsein & Medina, IsrSc, at 593.
29. See IsrSc. Despite this view the Court decided by a majority of eight judges against Justice Cheshin's lone dissenting opinion, that the law is constitutional.
30. See Navot, IsrSc.
31. See the Poultry Growers' case, IsrSc, at 50–51.
32. The Litzman case, IsrSc, at 586–585.
33. 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.”
34. Justice Cheshin in the Bank Mizrahi case, IsrSc, at 569.
35. See also HCJ 975/89 Nimrodi Land Development v. The Knesset Speaker [1991] IsrSC 45 (3) 154 [hereinafter the Nimrodi case].
36. 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.
37. The Poultry Growers ‘case, IsrSc, at 40, para 15.
38. Bergman v. The Minister of Finance, IsrSc, at 693.
39. The Saridcase, IsrSc, at 197.
40. For an in depth discussion see Navot, IsrSc in the first part of the article, examining the theoretical frameworks.
41. P. Biglino Campos, Los Vicios en el Procedimiento Legislativo 19–20 (1991) [Flaws in the Judicial Process].
42. For a discussion of the background to the change in the Continental Approach see Navot,.Los Vicios en el Procedimiento Legislativo.
43. 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, Los Vicios en el Procedimiento Legislativo)
44. the Deputy President Elon (particularly in HCJ 1635/90 Jerczewski v. The Prime Minister [1991] IsrSC 45 (1) 749
45. Welner v. The Israeli Labor Party [1995] IsrSc 49 (1) 758
46. Miari v. The Speaker of the Knesset, IsrSc
47. Miari v. The Knesset Speaker, IsrSc.
48. See discussion infra in the second part of this Article, Section IV.
49. 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.
50. 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, A.C. Bryant & T.J. Simeone, Remanding to Congress: The Supreme Court's New “On the Record” Constitutional Review of Federal Statutes, 86 Cornell L. Rev. 328 (2001) who write that
51. “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.
52. 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.
53. Based on Rubinstein & Medina, HCJ 59-76, at 251,n.334.
54. Justice Or gave a similar ruling in HCJ 8238/96 Abu Arar v. The Minister of the Interior [1998] 52 (4) 26, 35.
55. Rubinstein & Medina, HCJ 8238/96.
56. see HCJ 410/91 Blum v. The Knesset Speaker [1992] 46 (2) 201,207.
57. HCJ 3424/91 The Tenants Protection Organization v. The Minister of Construction and Residence [1991] 45 (5) 340
58. HCJ 3468/03 Center of Local Councils in Israel v. The Government of Israel (not published) from Rubinstein & Medina
59. HCJ 3468/03.
60. The Poultry Growers' case, HCJ 3468/03, at 40 of Justice Beinish's judgment.
61. Justice Cheshin in HCJ 971/99 Movement for Quality of Government in Israel v. The Government of Israel [2002] IsrSC 56 (6) 117, 140
62. The Poultry Growers case, IsrSC, at 40 of Justice Beinish's judgment.
63. For elaboration on the Sarid test, see Navot, IsrSC.
64. The Litzman case, IsrSC, at 586–587 of President Barak's judgment.
65. Id. at para. 11 of President Barak's judgment
66. The first is The Sarid Test After Twenty Years: Revisiting Judicial Review of Parliamentary Decisions, Navot, Id. at para. 11
67. Suzie Navot, and the second is Setting the Salaries qfMKs: 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].
68. The Poultry Growers case, Hamishpat. at 49–50 (my emphasis S.N.).
69. The Litzman case, Hamishpat at 588.
70. Navot, Hamishpat.
71. Decision 9-59, dated the 9th of March 1959.
72. Regarding the Spanish parliamentary system and its relevance for Israeli law with respect to intervention in parliamentary proceedings, see Navot, Decision 9-59
73. Suzie Navot, El Control JurisdiccionaldelosActosParlamentarios:un análisisComparadodela 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.).
74. Discussed in, Antonia Navas Castillo, el control jurisdiccional de los actor parlamentarios sin valor de ley 137 (2000) [Judicial Supervision Over Non-statutory Parliamentary Proceedings] 135.
75. The Poultry Growers ‘case, el control jurisdiccional de los actor parlamentarios sin valor de ley, at 40.
76. HCJ 9070/00 Livnat v. Rubinstein, Chairman of Constitution, Law and Justice Committee [2001] IsrSC 55 (4) 800, at 809 (my emphasis S.N.).
77. The Litzman case, IsrSC, at 588.
78. 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 E. Jimenez-Aparicio, Las infracciones delprocedimiento legislative: algunos ejemplos, 3 revista del centro de estudios constitucionales (1989) 143–197 [Flaws in Parliamentary Procedures, Some Examples]
79. P. Bignilo Campos, Los vicios en el procedimiento legislativo: Lapostura del Tribunal Constitucional en la Sentencia 99-87, 24 revista Espanola de derecho constitucional(1998)
80. Flaws in the Legislative Process: The Status of the Constitutional Court in Decision 99-87
81. A. Cervatini, il controlo di costituzionalita sui vizi del procedimiento legislativo parlamentare in alcuni recenti pronunce della Corte Costituzionalle giustizia costituzionalle (1985) [The Supervision of Constitutionality in View of Flaws in the Parliamentary Legislative Process in Some Recent Decisions of the Constitutional Court].
82. 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, il controlo di costituzionalita sui vizi del procedimiento legislativo parlamentare in alcuni recenti pronunce della Corte Costituzionalle giustizia costituzionalle
83. in the book of Elviro A. Alvarez, infra note 95, at 250.
84. The citation is from Biglino Campos, il controlo di costituzionalita sui vizi del procedimiento legislativo parlamentare in alcuni recenti pronunce della Corte Costituzionalle giustizia costituzionalle at 40 (unofficial translation S.N.).
85. Navas Castillo, il controlo di costituzionalita sui vizi del procedimiento legislativo parlamentare in alcuni recenti pronunce della Corte Costituzionalle giustizia costituzionalle, at 137.
86. See R. Punset, las cortes generales 87 (1983). 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.
87. Court decision no. 27, dated 14 October 1970 and decision 31 dated 5 March 1974.
88. In a disputed decision—No. 9/1959.
89. This decision was sharply criticized in the Italian literature, even by some of foremost experts of constitutional law, among them Prof. Pizorruso. See A. Cervati, il controlo di coslituzionalite sui vizi del procedimento legislativo parlamentare in alcune recenti pronuncie della Corte Costituzionale, guistizia costituzionale 1 (1985)
90. See also Francesc Pau I Vail, parlamento y justicia constitucional (1997)
91. Navas Castillo, parlamento y justicia constitucional, at 136 which explains the Italian doctrine
92. Esposito, C. La Corte Costituzionale in parlamento G.C. 1959, at 62
93. from the book of Biglino Campos, parlamento y justicia constitucional, at 25.
94. C.C. 78–96 D.C. 27 July, 1978.
95. C.C. 84–181 D/C/10 et 11 Oct. 1984
96. C.C. 89–261 D/C/ 28 July 1989
97. C.C. 99–274 D.C. 29 May 1990.
98. Dominique Rousseau, Droit du Contentieux Constitutionnel 295 (6th ed. 2001).
99. 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 Droit du Contentieux Constitutionnel, 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.
100. C.C. 85–191 10 July 1985.
101. 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 appr´eciée au regard du contenu des amendements don't il s'agit et des conditions générales du débat, n'a pas revêtu en l'espece un caractère substantial.” C.C. 93–3329 D.C. 13 January 1994.
102. In unofficial translation from the French source: “compte tenue de l'objet de ces amendements et des questions en débat, cette irrégularite - 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.
103. Regarding Italy and Spain, see detailed bibliography on the question of formal flaws and substantive flaws in the book of Antonia Navas Castillo, el Control Jurisdiccional de los Actos Parlamentarios sin Valor de ley 133 opposite n.166 (2000).
104. This is the definition of Biglino Campos, Vicios en el Procedimento Legislative, 4 enciclopedia juridica basica 6848 (1995).
105. 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.
106. See Suzie Navot, A Note on the Normative Status of the Budgetary Laws, 6 Hamishpat 121 (2001) [in Hebrew].
107. Justice Beinish in the Poultry Growers case, Hamishpat, at 40.
108. See Justice Cheshin's opinion in the Bank Mizrahi case, Hamishpat.
109. See the Nimrodi case, Hamishpat
110. Also see the Litzman case, Hamishpat, 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.”
111. Rubinstein & Medina, Hamishpat, at 250.
112. 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.” Daphne Barak-Erez, Relative Invalidity in Administrative Law: The Price of Rights, Zamir Book on Law, Government and Society 285, 318 (2005) [In Hebrew].
113. The Poultry Growers case, Hamishpat, at 40 (emphasis in the original text S.N.).
114. The Litzman case, Hamishpat, at 585.
115. Rubinstein & Medina, Hamishpat, at 256 (my emphasis S.N.).
116. 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.”
117. Navas Castillo, IsrSC.
118. Elviro Aranda Alvarez, El control jurisdictional 252–253
119. Campos, El control jurisdictional.
120. G. Zaorebelsky, Procedimento legislative e regolamenti parlamentari—le Regioni No.4 773 (1984).
121. The Poultry Growers case, Procedimento legislative e regolamenti parlamentari—le Regioni, 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.
122. See the Litzman case, Procedimento legislative e regolamenti parlamentari—le Regioni, at 588.
123. 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.
124. Biglino Campos, The Poultry Growers, at 75.
125. 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.
126. Hans Kelsen, On the Essence and Value of Democracy 67 (Izhak Englard trans., 2005) (1929).
127. The Poultry Growers ‘case, On the Essence and Value of Democracy, at 18.
128. The Litzman case, On the Essence and Value of Democracy, at 588.
129. Biglino Campos, On the Essence and Value of Democracy, at 76–77.
130. Paloma Biglino Campos, los Vicios en el Procedimento legislativo 81 (1991) [Defects in the Legislative Process] (my emphasis S.N.).
131. Manzella, IL Parlamento (1977).
132. Biglino Campos, IL Parlamento, at 115–116.
133. President Barak may have been alluding to a similar idea in the Litzman case, IL Parlamento, 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.
134. HCJ 6652/96 The Citizen's Rights Association v. The Minister of the Interior [1998] IsrSC 52 (3) 117, at 125.
135. This is the purpose of the free mandate, as explained in a previous article. Suzie Navot, The Knesset Member as a Public Trustee, Mishpatim 31 (3) 433 [in Hebrew].
136. Bilglino Campos, The Knesset Member as a Public Trustee, at 88–90.
137. 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. D.M. Olson Democratic Legislative Institutions—A Comparative View 5 (1994).
138. HCJ 12002/04 Makhoul v. The Knesset [Sept. 13,2005] (not published).
139. Yeredor v. Chairman of the Elections Committee, HCJ 12002/04.
140. HCJ 971/99 Movement for the Quality of Government v. The Knesset Committee [2002] IseSc 56(6)117.
141. Yigal Mersel, Suspending a Declaration of Voidability, 9 Mishpat Umimshal 39 (2006) [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)
142. 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 O. Field, The Effect of an Unconstitutional Statute 2–8 (1935).
143. HCJ 6652/96 The Citizens' Rights Association v. The Minister of the Interior [1998] IsrSC 52 (3) 117.
144. This is the case in Spanish Law.
145. The Poultry Growers ‘case, IsrSC, at 41.
146. The Litzman case, IsrSC, at 588.
147. Linde Hans, Due Process of Lawmaking, 55 Nebraska L. Rev. 197 (1976).
148. Id. at 243.
149. See also the analysis of Linde's article by authors Philip P. Frickey & Steven S. Smith, Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique, 111 Yale L.J. 1707 (2002).
150. 395 U.S. 486 (1969).
151. The three central judgments are: United States v. Lopez, 514 U.S. 549 (1995)
152. Kimel v. Florida Board of Regent, 528 U.S. 62 (2000)
153. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356(2001).
154. See Neal Devins, Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis, 50 Duke L. J. 1169 (2001)
155. Harold J. Kent Turning Congress Into an Agency: The Propriety of Requiring Legislative Findings, 46 Case Western L. Rev. 731 (1996)
156. D.T. Coenen, The Rehnquist Court, Structural Due Process, and Semisubstantive Constitutional Review, 75 S. Cal. L. Rev. 1281 (2002).
157. The Poultry Growers ‘case, S. Cal. L. Rev., at 49.
158. 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).
159. 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).
160. HCJ 1843/93 Pinchasi v. The Israeli Knesset [1995] IsrSC 48 (4) 492.
161. id. at 495.
162. Id., Justices Barak, S. Levin and D. Levin.
163. Rubinstein & Medina, Justices Barak, at 729.
164. See HCJ 6061/99 Zeevi v. The Government of Israel [September 8,1999] (not published)
165. HCJ 6124/95 Zeevi v. The Government of Israel [November 11,1995] (not published).
166. 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).
167. See Section 3 C(c) of Basic Law: State Economy.
168. See HCJ 4572/03 National Council for Child Welfare v. The Government of Israel [May 25,2003] (not published).
169. HCJ 366/03 Association for Commitment to Peace and Social Justice v. The Minister of Finance [December 12,2005] (not yet published).
170. Id. at, para. 21 of Justice Edmond Levi's judgment.
171. INS v. Chadha, 462 U.S. 919, 997 (1983) (White, J., dissenting).
172. Goldfeld, U.S.
173. Contra to the view of Mark Tushnet, Fear of Voting: Differential Standards of Judicial Review of Direct Legislation, 1 Legis. & Pub. Pol'y 1 (1997): “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.”
174. HCJ 6028,4773/94 Naot v. The Haifa Municipality [1996] IsrSC 49 (5) 111.
175. id. at 125.
176. HCJ 8378/96 Habish v. The Minister of Religion, [1997] 51 (1) P.D. 145.
177. Id. at 154.
178. Goldfeld Id. at 154, at 394.
179. Id. at 381.