Toward Procedural Judicial Review of Constitutional Law-Making Process in Israel

Abstract As part of Israel’s 2023 judicial overhaul, the Knesset enacted Amendment No. 3 to the Basic Law: The Judiciary on 24 July 2023. This amendment barred courts from reviewing the reasonableness of decisions made by the government, prime minister, or ministers. In response, numerous petitions were filed with the Israeli High Court of Justice. Given its importance, the High Court of Justice convened all 15 justices for the hearing, and in an 800-plus page ruling, it annulled the amendment citing abuses of the Knesset’s constituent power. This article examines the rulings of former Chief Justice Esther Hayut (acting Chief Justice during the ruling) and her successor Chief Justice Uzi Vogelman, focusing on alleged procedural flaws. After reviewing their rulings, we will propose an analysis of the impact of their judgments on procedural judicial review of the constitutional law-making process. Based on this, we will suggest refining and updating the Doctrine of the Principle of Participation—a doctrine developed in case law as a tool for procedural-constitutional review—to align with the stricter judicial standards of the constitutional process.