Document Type

Article

Disciplines

International Law

Abstract

Israel does not have a formal Constitution. Nonetheless, recent developments over the last decade in the arena of Israeli constitutional law, which are widely referred to as the "Constitutional Revolution," have ushered in dramatic and fundamental change. In 1995, the set of Basic Laws, which were enacted in piecemeal fashion over the years without previously receiving much attention,' were proclaimed by the Israeli Supreme Court to have a constitutional nature. Consequently, those laws invite judicial review. 2 As Chief Justice Barak refers to them, these Basic Laws serve as a "Crippled Constitution."

The Israeli Supreme Court serves as a constitutional tribunal through its capacity as the High Court of Justice (HCJ). Since the establishment of the State of Israel in 1948, the HCJ has been responsible for adjudication of constitutional matters, yet it was neither appointed as a "Constitutional Court," nor was it provided exclusive jurisdiction over constitutional matters. It developed a "common law" protection of human rights throughout the years, which is notable considering the lack of a written Constitution and the state of security Israel has been in since the day of its establishment.

A side effect of the Constitutional Revolution was a decrease in the legitimacy of the Court, since it created a judicially made constitution. This shook the balance of powers between the legislature and the judiciary by introducing judicial review to the Israeli legal system through the judiciary's own initiative. 3 This created tension, which resulted in counter initiatives to take from the Supreme Court its role as a constitutional arbitrator, and to establish a separate constitutional tribunal: a Constitutional Court in the absence of a formal Constitution. Also, the Supreme Court has become extremely unpopular among certain groups, mainly the Jewish orthodox and some parts of the political right, due to rulings that related to religious matters and to religious tribunals in the last fifteen years.4 These phenomena generated doubts regarding the powers invested in the Supreme Court for the first time in its relatively short history.

Many initiatives to create a separate Constitutional Court have not bome fruit. 5 Chief Justice Barak has even personally advocated against the need for a separate Constitutional Court, both in public and in writing,6 and it seems that the Supreme Court has a sufficient amount of support among liberal members of the Knesset (the Israeli parliament) to avoid a drastic measure to remove this power - a power the Court currently holds.

Nonetheless, it seems that the straw that broke the camel's back has turned out to be not the Supreme Court, but rather the lower courts. The Supreme Court has demonstrated moderation 7 in its use of judicial review, striking down only a handful of statutes to date,8 and has been quite cautious in avoiding irresponsible use of its new powers. Since judicial review was a product of the Supreme Court's ruling, and was not formally restricted to the Supreme Court, there have been limited occasions recently where lower courts applied judicial review9 and aroused the anger of the legislature. The lower courts do not enjoy the reputation and prestige that the Supreme Court holds, and it seems that for the legislature, judicial review by lower courts was a degradation it was not willing to tolerate.

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