Moshe Cohen-Eliya
Law & Liberty, Mar. 4, 2024
“What explains the transfer of power from elected representative institutions to the judiciary in Israel?”
In early 2024 and at the height of the Israel-Hamas war in Gaza, the Israeli Supreme Court published the most important ruling in its history. By a narrow majority of 8 to 7, the Court struck down the constitutional amendment to “Basic Law: The Judiciary.” This amendment did not apply the “unreasonableness” doctrine to ministerial and government decisions and therefore allegedly violated Israel’s core democratic and Jewish values.
This ruling represents a peak moment of judicial activism on a global scale. In the few instances in which apex courts have invalidated a constitutional amendment without explicit textual authorization to do so, such as in India, Bangladesh, and Slovakia, the amendments dealt with a specific and sensitive issue—that of the judicial appointments process. And unlike in Israel, these cases took place within the context of a fully established and codified constitution.
On the other hand, the Israeli “unreasonableness” amendment regarded only a doctrine of administrative judicial review, which has only been applied in the rarest of cases throughout the world. And in the wake of the events on October 7th, such a hyper-activist judicial ruling raises serious concerns regarding democratic accountability in a legal system in which the judiciary holds unprecedented powers.
How then can we explain such an unprecedented action taken by the majority of the Israeli Supreme Court?
Professor Ran Hirschl, a leading scholar in comparative constitutional law, described in the early 2000s a process by which significant governmental authority in common law jurisdictions is transferred from elected representative institutions to the judiciary. He argued that such power transfers served hegemonic groups in demographic decline and were aimed at preserving these groups’ interests through the judiciary, in which they still maintained greater influence. … [To read the full article, click here.]
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