Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power

It is often asserted that a formal constitution does not necessitate judicial review over primary legislation. Rather, a country may conceive of other mechanisms to protect the constitution from intrusion by the regular political bodies. The question arises whether the reverse holds true. Can we envision a country that exercises judicial review over primary legislation yet lacks a formal constitution? Surprisingly, Israel\u27s constitutional system, prior to the famous 1995 United Mizrahi Bank decision, offers an affirmative answer to this question. This article focuses on Israel\u27s constitutional experience during its founding period. It further explains the unique revolutionary role performed by the Israeli Supreme Court in deciding United Mizrahi Bank against the background of parliamentary sovereignty tradition. Using Israel as a case study within a comparative constitutional framework, the article offers three important lessons: First, it explains how an American style judicial review over primary legislation may coexist with parliamentary sovereignty, notwithstanding the prevailing understanding of these two seemingly mutually exclusive frameworks. It further details the mechanisms by which judicial review can be introduced within a parliamentary sovereignty tradition. Second, it explains the theoretical and historical roots of legislative override power in common-law interpretation techniques. While the notwithstanding clause is considered a unique Canadian invention, this article suggests that Israel has exploited legislative override techniques prior to the adoption of the Canadian Charter. Last, using the Israeli and Canadian experiences, it offers several warnings about how not to interpret notwithstanding clauses if one desires robust constitutionalism

War over Israel’s Judicial Independence

The new Israeli government wasted no time in initiating an all-out attack on the independence of the judiciary. It is promoting in full speed two parallel proposals to reform the judiciary in the hope that at least one of them, or a hybrid of both will be codified. The government claims that its proposed judicial reform will promote a more democratic and representative judiciary. Yet, a careful analysis of its proposed reform suggests that the government intends to fully politicize the judiciary. It will change the process of appointment to the Judicial Selection Committee, placing control in the hands of the government. Simultaneously, it will neutralize the ability of the opposition in the Knesset and the professional elites (the Justices and the Bar Association) to protect judicial independence from governmental takeover.</p

On the Nexus Between the Strength of the Separation of Powers and the Power of the Judiciary

This Article makes four novel arguments: (1) There is an inverse relationship between the strength of a separation of powers structure and the strength of the judiciary. In a strong separation of powers structure, one should expect a weaker judiciary, and vice versa. This nexus exists empirically, and is supported on normative and strategic grounds. (2) This nexus is manifested through a web of common law doctrines that developed to support a given separation of powers structure and shape the judicial oversight of the political branches. This Article identifies a list of common law doctrines—including standing, justiciability, deference, and judicial interpretation techniques—which substance is derived from the strength of the separation of powers in a given system. (3) Though scholars traditionally study these common law doctrines independently from each other, this Article argues that they are all connected. (4) Lastly, courts understand that the content of each of these doctrines is affected by considerations related to the separation of powers. Yet, while developing these common law doctrines, the courts have failed to connect these various doctrines, and to identify the connection between the strength of the separation of powers and the resulting content of common law doctrines that are required to support it. The courts are not alone in their failure to see the connection; scholars of comparative law often apply doctrines from one system to another without being aware of this nexus. This Article supports its argument by juxtaposing two Supreme Court decisions from two democratic common law countries dealing with similar dilemmas: whether immigration bans based on nationality are constitutional, even though they prevent citizens from uniting with their foreign family members. In both countries, the Courts dealt with a similar dilemma, and reached similar results of non-intervention. Yet, the reasoning of both Courts vastly differed. By analyzing how the United States and Israel—which are located on the opposite sides of the spectrum regarding separation of powers—construct their judicial reasoning to a similar problem, this Article aims to examine the inner workings of both systems’ separation of powers. This Article contends that these different structures lead to vastly different common law doctrines that inform judicial reasoning