Co.Co.A.
Comparing Constitutional Adjudication
A Summer School on Comparative Interpretation of European Constitutional
Jurisprudence
3rd Edition - 2008
Concrete control of constitutionality
Israel
Concrete Control of Constitutionality:An Israeli Perspective
Prepared by: Guy Shani
1
Concrete Control of Constitutionality:
An Israeli Perspective
Guy Shani
The Israeli legal system was founded on several historical layers: Turkish law
from the Ottoman era, British law enacted during the mandate period, and European
continental law. Since the founding of the state of Israel in 1948, enactments of the
Knesset, the Israeli Parliament, have transformed the Israeli legal system into a modern
one. As of today, Israel has not yet enacted a formal constitution. There is, however, a
series of Basic Laws which will ultimately and hopefully be unified into a formal
constitution.
Until 1992, the Supreme Court protection of human rights evolved as part of
Israeli common law. Utilizing its central role in the interpretation of laws and its
somewhat more limited powers of judicial review of administrative acts, the Supreme
Court developed an important foundation for protecting human rights such as freedom
of speech, equality and the right to assemble1. In 1992, the Knesset enacted two Basic
Laws aimed at protecting human rights: Basic Law: Human Dignity and Liberty and
Basic Law: Freedom of Vocation. Although these Basic Laws did not expressly
authorize judicial constitutional review, a panel of nine Israeli Supreme Court judges
held that the Court is authorized to invalidate legislation if it infringes on basic
constitutional rights2. This landmark decision has come to be known as the
"constitutional revolution."
1
See, e.g., HCJ 73/53 "Kol Ha-am" Co. Ltd. v. Minister of the Interior [1953] IsrSC 7(2) 871; HCJ
153/87 Shakdiel v. Minister of Religious Affairs [1988] IsrSC 42(2) 221.
2
See CA 6821/93 Bank Hamizrahi Ltd. v. Migdal [1995] IsrSC 49(2) 221.
2
The Israeli judiciary does not have a Constitutional Court designated to
adjudicate the constitutionality of laws, rather constitutional review is performed by the
regular courts. Constitutional review in Israel is a concrete endeavor, always grounded
in a specific conflict. No mechanism of abstract control exists. A constitutional question
can present itself in two principle ways: first, by way of a direct petition to the Supreme
Court in its capacity as the High Court of Justice (as opposed to an appellate court);
second, by way of an ordinary lawsuit tried in a lower court. When a constitutional
question is incidentally raised before a lower court, it is debatable whether this court
should adjudicate it or certify it to the Supreme Court.
The prevailing view is that constitutional review of legislation in Israel is not
limited to the Supreme Court3. Instead, each court has the authority to determine the
constitutionality of laws, although its decision is limited to the parties before it and
subject to the review of the Supreme Court in its capacity as the highest court of
appeals. Some consider this authority to be too broad and several bills aimed at
restricting constitutional review by lower courts have been introduced over the years4.
Not surprisingly, some of those bills, resembling the continental mechanism of concrete
control, have proposed various forms of incidental review in which constitutional
questions would be referred to a panel of Supreme Court Justices.
Yet, because no such bill has been enacted, it may seem that every court in
Israel—Magistrate Court, District Court, Traffic Court, Family Court, etc.—is
authorized to declare a statute unconstitutional (inter partes). However, the courts have
used this authority only rarely. In one such case in 2003, a Magistrate Court hearing a
criminal case addressed the constitutionality of a provision forbidding anyone not
3
But see the remarks made by Justice Cheshin id. at 568.
4
See Aharon Barak, Judicial Review of the Constitutionality of Statutes: Centralism v. Decentralism, 8
Mishpat Umimshal 13, 15-18 (2005) (Isr.).
3
registered as a tax advisor to present herself as one. The defendant referred the
constitutional question directly to the Supreme Court, but interestingly, the Court
rejected the petition and referred this question back to the trial court. Upon its return,
the Magistrate Court judge concluded that the provision disproportionately infringed
upon the right to freedom of occupation and therefore declared it void5.
This decentralized approach, common in countries such as the United States and
Canada, has its advantages6. It allows every judge in Israel to decide the case before her
while considering all the relevant issues pertaining to the case, including the
constitutional ones. This is efficient and promotes the assimilation of constitutional
values throughout the judiciary. The development of constitutional law through control
of constitutionality in concrete cases arguably relates to all courts and requires their
ongoing contribution. Justice Chaim Cohen, one of our founding judges, made a
connection between the decentralized approach and the rule of law, noting that "The
rule of law cannot exist unless every judge who has the power to punish also has the
power to say: the law, according to which punishment is requested, is unconstitutional."
However, this decentralized system also has severe shortcomings that make it, in
my view, unfit for Israel. On a conceptual level, the idea of inter partes
unconstitutionality is peculiar, as a constitutional ruling by definition has broad
significance and implications. Moreover, the annulment of legislation due to
unconstitutionality may require a legislative reaction such as making the necessary
adjustments for the law to be constitutional7. But the legislator cannot react to an inter
5
See
CC
(TA)
4696/01
The
State
of
Israel
http://www.nevo.co.il/Psika_word/shalom/s01004696-479.doc (Isr.).
6
v.
Hendelman
[2003],
See Barak, supra note 4, at 19-20.
7
Sometimes, the Supreme Court suspends its decisions from coming into force when holding that a law is
unconstitutional, in order to allow the legislator to make the appropriate amendments. See, e.g., HCJ
6055/95 Zemach v. Minister of Defense [1999] IsrSC 53(5) 241.
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partes ruling, and therefore the balance between the judiciary and the legislative
branches is disrupted. On a practical level, this limitation of a decentralized approach
could very well lead to an inter partes lacuna.
This is not the only practical concern. When considering whether it is
appropriate to authorize every court in Israel to engage in constitutional review—
especially when it comes to the review of Knesset laws—it should be remembered that,
by and large, the lower courts try cases with a single judge residing, hardly the quorum
suitable for constitutional review. Furthermore, the decisions of lower courts are not
binding, and therefore may create ambiguity on constitutional questions in the absence
of a Supreme Court ruling. Consider, for example, a defendant in a criminal trial who
argues that the law under which he was indicted is unconstitutional. Suppose that the
judge rejects this argument. But what if a different judge, sitting in the neighboring
courtroom, accepted the same argument? This would create uncertainty in terms of
positive law and would send an inconsistent constitutional message to the public.
Indeed, there is a strong possibility that almost every constitutional ruling would
eventually find its way to the Supreme Court on appeal. Although this can mitigate the
problem of uncertainty and re-centralize the system to some extent, the effect is limited
by virtue of the fact that the decision of whether to appeal is left to the discretion of the
parties. In any event, if the Supreme Court guidance is necessary or at least desirable in
the constitutional sphere, why not skip the lower courts altogether by limiting
constitutional review to the Supreme Court, thus avoiding a period of uncertainty8?
One possible answer to these concerns is that they are merely theoretical. The
lower courts, much like the Supreme Court itself, have shown great restraint in
exercising their powers of constitutional review. Since the "constitutional revolution,"
8
See also id. at 20-22.
5
the Supreme Court has seldom struck down legislation and the lower courts have
followed in its lead. Moreover, the lower courts have demonstrated deference not only
to the Knesset but also to the Supreme Court by minimizing their constitutional
intervention9. This, one could argue, results in a de facto centralized approach that is not
susceptible to the above pitfalls.
But other considerations remain both on the de facto level and on the de jure
level. For instance, the incompleteness of the Israeli constitutional framework makes the
constitutional review all the more complex. Difficult questions of interpretation and
implementation, which are subject to the broad discretion of the courts, arise frequently.
Even the content of the bill of rights is unclear, as basic rights such as freedom of
expression and equality are not specifically mentioned in the Basic Laws, thus raising
the question whether they can be derived from the right to human dignity10. This kind of
complexity requires the attention of the highest court, which is not only the most
experienced instance but also the one that enjoys the strongest public support. Perhaps
the most important consideration which supports the centralized approach in Israel has
to do with Israel's short constitutional tradition. This concern was voiced by former
Chief Justice Barak: "It will be too sharp a transformation from parliamentary
democracy to constitutional-parliamentary democracy, if every court and every tribunal
will be authorized to declare a statute void"11.
9
The Supreme Court found a legislation to be unconstitutional five times. To the best of my knowledge,
the lower courts came to this conclusion only twice.
10
The prevailing view in the Supreme Court is that the right to human dignity, found in the Basic Law, can
serve as a source for recognizing constitutional rights which are not expressly specified. See, e.g., HCJ 2481/93
Dayan v. The Commander of the District of Jerusalem [1994] IsrSC 48(2) 456; HCJ 6427/02 The Movement for
Quality Government in Israel v. The Knesset [2006], http://www.nevo.co.il/Psika_word/elyon/02064270-a22-e.doc
(Isr.).
11
Barak, supra note 4, at 22.
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We should bear in mind that Israel is not only a young democracy, but also a
very young constitutional democracy, with regard to human rights. The constitutional
process is not suited for frequent shake-ups. It confronts democratic states with their
most delicate and fundamental social dilemmas. In Israel, the appropriate balance of
power between the legislative and the judicial branches is continually debated. The
legitimacy of constitutional review is not obvious to all. In this atmosphere, taking into
account all the constitutional dilemmas Israel faces due to its unique characteristics, it is
important to walk down the constitutional path one step at a time. Allowing all courts in
Israel to play an active role in the interpretation and enforcement of constitutional law
might be a step too far, and is definitely too soon.
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