Israel at 70: The Rule of Law and the Judiciary
- Israel at 70:The Rule of Law and the Judiciary
INTRODUCTION
In the recent decade, a very tempestuous discourse, concerning the interrelationship between the governmental branches—particularly the Judiciary on the one hand, and the Knesset and the Government on the other hand—is taking place in Israel. The nature of Israel's political regime as parliamentary democracy, and the absence of a written constitution have only intensified this rift to an unprecedented level.1
While members of the Parliament are elected by the People—through quasi-direct elections—and the Government is, by majority, composed of members of the Parliament, judges are appointed by a committee, which comprises representatives from all the three governmental branches in addition to the Bar Association. To that extent, the nature and the scope of the principle of separation of powers are ambiguous. Furthermore, in the absence of a written constitution, crucial institutional and normative matters remain unsettled; primarily, among others, the legitimacy of judicial review over legislation and other executive actions.
On the one hand, politicians argue that they have been elected by the People, and thus enjoy full legitimacy to enact whatsoever they believe to be right and true, as well as promote any policy by virtue of their political ideologies. On the other hand, justices of the Supreme Court contend that subject to fundamental principles and other constitutional values—such as the rule of law, separation of powers, the independence of the judiciary, equality, and dignity—that must be respected by all governmental branches; neither the Parliament nor the Government are free to act without any limitation.
Underlying this tempestuous discourse is a controversy over the definition of democracy, its scope, and its limits; a controversy that reflects on the nature of the principle of separation of powers, as well as the essence, and [End Page 172] the meaning, of the fundamental principle of the rule of law. I highlight the process through which the principle of the rule of law has evolved in Israel through its 70 years of existence.
THE AGE OF FORMALISM
While Israel's Declaration of Independence contained an explicit promise to draft a written constitution—not later than 1 October 1948—by the Constituent Assembly, such a document has never been concluded. Instead, as proposed by MK Yizhar Harari in 1950, a political compromising resolution was endorsed, providing that the constitution shall be composed of separate and individual chapters, in such a manner that each of them shall be separately brought before the Knesset and constitute a Basic Law in itself; thus, all chapters gathered will, in due course, form Israel's constitution.2
The notion of the Judiciary as an independent branch was not so intended by Israel's first Government, as the latter perceived the Supreme Court as its agent. However, this was not the way judges perceived themselves and their role.3
During Israel's first two decades, the Court adopted a model according to which the Legislature, in its legislative capacity, is immune from judicial review.4 It was the Court's position, for instance, that once a law was passed and published, it cannot be subject to judicial review, even if it includes a factual error.5 However, towards the end of the 1960s, the Court slightly departed this position by deciding that a law that had provisions contrary to explicit stipulations in a Basic Law can be invalidated.6
It was not until 1984 that the Basic Law: the Judiciary was enacted, providing that a person vested with judicial power shall not, in judicial matters, be subject to any authority but that of the Law.7 However, the question remains that of the scope of such authority, as well as the query on the legitimacy of the possible power to invalidate a law as being unconstitutional, in a state that has no binding written constitution.
Until 1992, the Court restrained the scope of its power of judicial review of the Government. Additionally, although the Court intervened in sensitive political matters by adhering to legal doctrines of administrative review as well as further theories of legal interpretation, it still applied strict formal criteria in exercising...
