Curing the Supreme Court’s ills – Part I: Judicial review

By David J.. Martin, JPOST

One of the important tasks which the new government and the new Knesset will face, is the urgent need to cure some of the ills of the Supreme Court. These ills – if not stopped – threaten the democratic underpinnings of the state. In this note, we shall relate to one of these ills: judicial nullification of the laws of the Knesset.

As we all recall from our early political science or civics studies, one of the landmarks of a democracy is the separation of powers. The legislature legislates; the judiciary interprets the legislation; and the executive branch of the government enforces the law, as enacted and interpreted. In 1803, the United States Supreme Court, in a decision entitled Marbury v.

Madison, held that it had the power to determine if a statute enacted by Congress violated the Constitution of the United States and was thus void. The curious aspect of this decision was that the governmental body that held that the Supreme Court had this veto power over the Congress was… the Supreme Court itself. (A careful review of Marbury v. Madison will reveal that the power which the court took for itself was actually quite limited and could be understood to relate a narrow set of circumstances; nonetheless, this decision has been taken to afford the court the power to override legislation which it believes to be unconstitutional.)

In the American context, this decision was not terribly far-reaching and thus, in practice, not a real threat to the separation of powers. First, the court rarely utilized this power against the legislature. Second, in the American system, the various governmental branches have a “checks and balances” relationship, so that if the court’s veto became annoying to the legislature, the legislature could take various legislative actions to override the court. Third, many issues involving the validity of legislation simply could not come before the court, because the Supreme Court will not hear all challenges to legislative constitutionality. (Similar limitations do not exist in Israeli law. This is another ill which we will address in Part II of this note.) What about Israel? Israel is, of course, ostensibly a democracy, and does indeed enjoy the separation of powers: legislative, judiciary and executive branches.

For the first 45 years of its existence, Israel rejected the American model: the court did not have authority or jurisdiction to invalidate a law of the Knesset. As the Supreme Court wrote in 1990 in the Lior case: “It is a major principle…that the question of validity of a law which has been enacted and accepted by the Knesset, is not subject to judicial review. It is an established principle of our democratic regime of three branches of government, that we may not review the actions of the legislature….”

In 1995, however, the picture changed. Justice Aharon Barak began his term as president of the Supreme Court. One of the first things he did was to overturn all of the previous decisions in this area. He held that the Supreme Court was indeed empowered to overturn Knesset legislation and he did so, on the spot. According to Barak, legislation could be overturned if he felt it was in contravention of a Basic Law (the Israeli version of a pseudo-constitution) or even in contravention of basic principles of natural law (whatever that is). This was one of the first of Barak’s major anti-democratic contributions to the Israeli justice system.

On this basis, the Supreme Court began to be significantly more aggressive, not only by overturning laws, but by voiding administrative actions when the court felt that they were anti-democratic (once again, whatever that means). One could not avoid the feeling that the Supreme Court had set itself up as the final arbiter of all legislative issues; that it knew better what the country needed in the way of legislation than the people themselves or their democratically elected representatives in the Knesset. When the government reacted to the Supreme Court’s usurping of the Knesset’s legislative authority, and its violation of basic democratic principles, by proposing what has become known as the “Supreme Court Detour Law,” the left-wing Knesset members asserted that the law was somehow “anti-democratic,” although it was designed to protect our democracy! Turning now to 2015, 20 years after the Barak judicial review revolution, the new government, and particularly Justice Minister Ayelet Shaked, will be called upon once again to protect our democracy from this threat. We can only hope that clear minds understand the true meaning of democratic principles and work to cure this ill which plagues our judicial system.

The author is an international attorney based in Tel Aviv.