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It is well-known that the Knesset (the Israeli parliament) is the legislative authority in Israel. But I did not find it written in the law. I looked at two laws:

  • The basic law of the Knesset defines the Knesset as "Israel's house of electives"; says that it convenes in Jerusalem; has 120 members; elected by global proportional elections; determines the right to elect and be elected; etc. But does not speak explicitly about legislation.

  • The law of the Knesset determines various procedures followed by the Knesset, for example: the opening ceremony, electing the chairman and the committee, etc. Again, it does not speak explicitly about legislation.

Apparently, an Israeli citizen charged with a violation of a law can claim "the law was approved by the Knesset, but no law says that the Knesset has an authority to make laws". Of course, this claim will be rejected, but on what legal grounds?

Erel Segal-Halevi
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1 Answers1

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The Knesset was established in the transition of Israel to independence, but not in a single step. To this day, Israel does not have a comprehensive written constitution, including a definition of the legislative power. At independence, the hope was that such a constitution would be established fairly soon, and a "Constituent Assembly" was to be set up in order to agree its content. In the mean time, a "Provisional Council of State" would make any needed laws. As it happened, the Provisional Council of State decided that it would dissolve itself and pass legislative powers to the Constituent Assembly, as soon as an elected assembly could be convened. The Constituent Assembly renamed itself "the Knesset", and here we are. When the Knesset passes a Basic Law, it's fulfilling its original function of writing (pieces of) a constitution; when it passes a normal law, it's exercising the authority granted it as part of the transition.

The rest of this answer sets out some relevant statutes to this history, working backwards from 1949. But regardless of these specific provisions, it is evident from the rest of the statute book, and from consistent interpretation in the courts, that the Knesset has always been considered as able to pass laws. If the hypothetical citizen's argument is accepted then the entire post-independence legal structure collapses.

On page 1 of volume 1 of Laws of the State of Israel: Authorized Translation from the Hebrew (1949-1989), there appears the Transition Law of 1949, which includes:

  1. The legislative body of the State of Israel shall be called the Knesset. The Constituent Assembly shall be called "the First Knesset". A delegate to the Constituent Assembly shall be called a "member of the Knesset".
  2. (a) An enactment of the Knesset shall be called a Law.
    ...

This law was passed by the Constituent Assembly itself, having received general law-making powers from the Provisional Council of State. The Provisional Council of State not only arranged for the first elections to take place, but for its own dissolution once the Assembly was convened (in the Constituent Assembly (Transition) Ordinance, No. 39 of 5709-1949). This was a controversial step at the time. Politically, members of the Council felt that they lacked a democratic mandate - they were not elected, but had emerged through the general tussle of the independence struggle - and were keen for laws to be made by an elected body. But by giving the power to the Constituent Assembly, who in theory were only meant to draw up a permanent constitution, there was a concern that development of that constitution would be delayed. In any event, whether it was a good idea or not, the theory is that the Council had inherent authority to make whatever laws it wanted, even to the extent of transferring power to a successor body.

The Provisional Council of State had decreed the scope and procedure for its own powers under the Law and Administration Ordinance (No. 1 of 5708-1948) which said:

  1. (a) The Provisional Council of State is the legislative authority. The laws shall be called "Ordinances".

That Ordinance also made provision for the continuity of law in general, and for the transfer of powers from institutions under the British Mandate. Thus, any legislative supervision which had been exercised by the UK government was ended, and any positive power of that government to make laws was taken over by the Council.

All of this was in pursuit of the general scheme laid out in the Declaration of Independence, which had said:

WE DECLARE that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People's Council shall act as a Provisional Council of State, and its executive organ, the People's Administration, shall be the Provisional Government of the Jewish State, to be called "The State of Israel".

While the Declaration is not a law in the conventional sense, it gives shape and purpose to the transition arrangements.

alexg
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