—Gonen Ilan, PhD Candidate in Law, Bar-Ilan University; General Secretary of the Israeli Chapter of ICON-S, focuses on Legislative Studies and Legislative Theory
Introduction
Israel is currently experiencing a prolonged constitutional crisis, in which petitions challenging constitutional amendments and statutes with significant constitutional implications are pending before, or have recently reached, the High Court of Justice (HCJ). These cases place the Court once again at the center of a familiar constitutional dilemma: should judicial review focus only on the effects of legislation, or should it also examine the process through which such legislation was enacted?
Courts often review the effects of legislation but are hesitant to scrutinize the legislative process itself. This post argues that procedural legitimacy is however essential to constitutional lawmaking and must be subject to judicial review. Legislative procedures shape democratic governance and determine participation and accountability. Thus, courts should apply different standards for various legislative processes, recognizing their unique characteristics and justifications. Furthermore, existing scholarship has made important progress in legitimising judicial engagement with legislative procedure. It has shown that procedural rules may possess constitutional significance, that legislative processes are not categorically immune from judicial scrutiny, and that procedural deficiencies may undermine the legitimacy of enacted statutes. Related work on semiprocedural review demonstrates that courts often assess legislative processes indirectly within substantive constitutional analysis.
However, most accounts focus on whether courts should review legislative procedure, or how intensively such review should be conducted in general, rather than how such review should be structured across different legislative tracks. In this post, I focus on how procedural review should be organized across various legislative tracks. A theory that overlooks these tracks treats diverse processes as functionally identical. It suggests that the validity of a procedure can be evaluated without regard to the institutional path taken for enacting legislation. I argue that this assumption is misguided. The effectiveness of a legislative process hinges not only on the presence of deliberation but also on whether the selected legislative track is suitable for the intended purpose of the measure. This distinction is particularly important in contexts of democratic backsliding.
Democratic Tempo and the Politics of Speed
Contemporary scholarship on democratic erosion emphasizes that elected governments’ efforts to weaken democratic constraints rarely take the form of overt constitutional rupture.
Rather, such erosion often proceeds through formally lawful measures enacted by elected institutions. Governments use ordinary legal mechanisms to weaken oversight bodies, restructure electoral competition, politicize the administration, and recalibrate institutional balances. The risk lies not only in the enactment of problematic laws, but in the instrumental use of the legislative form to produce democratic degradation while preserving an appearance of legality.
A central mechanism in this process is defined as “democratic tempo”. Political actors may accelerate legislative processes to compress deliberation, preclude scrutiny, exhaust opposition capacity, and limit public ability to participate in the process. They may sequence reforms so that each appears limited in isolation, yet they cumulatively transform the constitutional order. They may deploy emergency procedures, omnibus legislation, or private members’ bills to circumvent the deliberative burdens ordinarily associated with significant institutional change.
For instance, in recent years, the Israeli legislature has increasingly used the tools of ordinary politics to generate constitutional norms. Constitutional bills may be transferred from the committee ordinarily competent under the Knesset Rules of Procedure to a different committee better suited to securing their passage. In other instances, political actors may seek to replace a committee chair who is insufficiently responsive to coalition discipline. These moves may appear formally lawful. Yet they sit uneasily with the basic principles of constitutional politics. They use ordinary parliamentary control over agenda, committee assignment, and coalition discipline to reshape the conditions under which constitutional norms are made. The problem, therefore, is not merely that constitutional change is enacted quickly, but that the ordinary tools of majoritarian politics are used to lower the procedural threshold for constitutional transformation.
The risks in such cases are particularly pronounced in constitutional systems where the amendment process is flexible, not deeply entrenched, or closely aligns with ordinary legislation, as is the case in Israel. In these contexts, the strategic manipulation of legislative timing can achieve more than merely accelerating routine policymaking; it can enable substantial constitutional or regime-structuring changes without the usual requirements, such as temporal limitations or widespread political consensus, that are characteristic of more rigid constitutional frameworks.
The Judicial Review’s Anomaly: Lessons from the Israeli Experience
As mentioned,Israel provides an instructive case study that demonstrates why judicial review of the legislative process should be refined. In the landmark Quantinsky v Knesset case, the HCJ invalidated provisions of the Economic Efficiency Law on the ground that the legislative process deprived Members of Knesset of a meaningful opportunity to participate in the legislative process. In that case, the HCJ examined whether legislators had a genuine opportunity to read, argue, understand, question, and deliberate. Although it did not explicitly adopt a track-sensitive framework, its reasoning implicitly reflected one: the measure was enacted through the omnibus law, a legislative track characterised by compression and reduced deliberative space. The HCJ’s concern arose from the interaction between the measure’s significance and the constrained procedural track through which it was enacted.
Later, the Police Ordinance case illustrates both the promise and the limits of existing doctrine. Amendment No. 37 did not concern a marginal administrative matter. It reconfigured the institutional relationship between the Minister of National Security and the Israel Police, including the Minister’s authority to set general police policy and, most controversially, the criminal investigation policy. The constitutional stakes were therefore considerable: police independence, the political neutrality of law enforcement, freedom of protest, liberty, privacy, and the broader relationship between elected power and coercive state authority. The HCJ ultimately invalidated section 8D of the Ordinance, which empowered the Minister to set policy in the field of criminal investigations, and adopted narrowing interpretations of other provisions. Yet the procedural dimension of the case remained largely underdeveloped. The Amendment was advanced as a private member’s bill by the future minister responsible for the police, under highly accelerated conditions, before ordinary governmental and parliamentary structures were fully in place.
Read together, these cases reveal an anomaly in existing doctrine. The HCJ is willing, in principle, to recognize that legislative procedure may have constitutional significance, and even to invalidate legislation when participation of legislators is seriously impaired. Yet it lacks a developed framework for explaining when the legislative route itself becomes constitutionally relevant. The difficulty, therefore, is not simply that the HCJ reviews legislative procedure too little or too much. It is that the existing doctrine does not yet explain how procedural review should vary with the legislative track used and the constitutional importance of the enacted measure. This is precisely the gap that differential procedural judicial review seeks to fill.
Toward Differential Procedural Judicial Review
Where a mismatch arises between the legislative route and the relevant legislative measure’s constitutional significance, courts should not confine themselves to asking whether the formal procedural steps were completed. They should ask whether the chosen track was capable of providing the deliberation, scrutiny, participation, expertise, and accountability required by the measure. In cases where there’s a mismatch between legislative procedures and constitutional significance, courts should develop what I call differential procedural judicial review. This model entails that legislation is assessed not only for formal procedural compliance but also for the legislative track’s characteristics, such as government bills, private members’ bills, and emergency legislation.
Thus, a differential approach can evaluate the validity of legislative processes based on fundamental principles derived from constitutional norms and democratic values, adjusting the intensity of review to the specific legislative context. It allows courts to remain deferential to legislatures, recognising their political nature and the necessity of parliamentary majorities to govern, while avoiding invalidation on minor procedural grounds. In this sense, differential procedural judicial review does not replace existing procedural doctrine. It develops it: from a general concern with participation into a more precise inquiry into whether the chosen legislative route was appropriate for the constitutional work the legislation was made to perform.
The Israeli experience highlights the need to analyze legislation beyond its final vote, focusing on the relationship between its constitutional significance and the legislative process. In flexible constitutional systems like Israel, significant reforms can be enacted through ordinary legislative procedures, which may mask deeper democratic deficiencies, especially when expedited processes are used. The cases discussed illustrate a broader comparative argument: refining judicial review to account for different legislative tracks can better align with the normative goals of participation, deliberation, transparency, and accountability. Differential procedural review is not judicial hostility toward the legislature but a means of maintaining democratic legislative authority. Courts should consider whether the procedural steps were fully completed and if the chosen process can bear the constitutional weight of the enacted reforms.
Suggested citation: Gonen Ilan, Backsliding by Procedure: Lessons from Israel and the Role of Courts, Int’l J. Const. L. Blog, Jul. 5, 2026, at: http:/www.iconnectblog.com/backsliding-by-procedure-lessons-from-israel-and-the-role-of-courts/