Centralized v. Decentralized Models of Judicial Review The decentralized approach CJ Aharon Barak’s view – support in principle in a decentralized system Chief Justice Aharon Barak stated that even though for the time being a centralized approach is preferable (see below), the preferable system in principle, and the one that should be adopted in the ling-run, is the decentralized model judicial review, – thus any court can decide a constitutional question, once it arises before the court. However, the ruling of any lower court on the validity of Knesset legislation shall be binding only to the immediate case and to the two sides involved as it is today regarding secondary legislation. A ruling of a lower court, like a magistrates’ court that a regulation was enacted without authority (ultra vires) shall constitute binding precedent only to the litigants present. Only such a decision by the Supreme Court shall bind all other, lower courts, and effectively annul the regulation. An advantage of the decentralized system: internalizing the constitution. Chief Justice Barak labeled the internalization of the constitution and its values by every judge in the justice system the primary advantage of a distributed system. Any judge could be called upon to decide on a constitutional question, and would not be able simply to pass the question along to a higher court. Another advantage of the decentralized system: decreasing public pressure on the justice system/ judiciary MK Eti Livni (Shinui) supported the decentralized approach, noting that the disqualification of a law in a particular instance that has a limited effect would be better and arouse less public pressure than the invalidation of a piece of legislation by the Supreme Court – the decentralized system allows both options. Another advantage of the decentralized system: bureaucratic effectiveness and the fear of proceedings getting “stuck” in a centralized system. Professor Daphne Barak-Erez ofTel Aviv University brought up an additional point in favor of the decentralized system, stressing the procedural effectiveness of the approach. In the centralized system when a judge of a lower court identifies a constitutional problem that needs to be decided, he or she should refer the question to the Supreme Court. If the proceedings are then frozen until the Supreme Court gives its decision, the efficiency of the whole process may seriously be damaged. Even if proceedings between the two sides continue while awaiting the Supreme Court’s ruling, the fact that the judge has already declared his or her view that there is a constitutional problem is problematic. In Barak-Erez’s view, there is no danger in allowing a lower court judge to declare a law unconstitutional, since his or her ruling is subject to appeal. Dr. Michael Karayanni of The Hebrew University suggested the efficiency problem could be minimized by establishing that constitutional questions are to be referred to the Supreme Court only in such cases as the lower court judge reached the conclusion that the legislation is unconstitutional, and not merely in any case wherein one of the sides makes such a claim. The Centralized Approach Chief Justice Barak’s current recommendation – support for a centralized approach Chief Justice Aharon Barak explained that, despite his support, in principle, of a decentralized system of judicial review, the centralized approach is better for Israel at this juncture. With the adoption of a constitution, Israel will change from a parliamentary democracy to a constitutional parliamentary democracy, and Knesset legislation will no longer be the highest norm in the land; the constitution will exist above the ordinary laws (at present the Basic Laws occupy a similar place). This change meets with political and social obstacles as it is implemented, and so a transition period is necessary.
In CJ Barak’ view, the objection to a decentralized system on the basis that it is inappropriate for a judge of a lower court to invalidate Knesset’s legislation shows that the constitutional revolution has insufficiently internalized. . At present and for the duration of such a transitional period, Chief Justice Barak supports a centralized system anchored around the Supreme Court, but recommends addressing the issue again once the constitutional revolution has permeated the judicial and political culture. Former Chief Justice Meir Shamgar: support for a centralized system Former Chief Justice of the Supreme Court Meir Shamgar supported a centralized system whereby the sole authority to invalidate legislation and to interpret the constitution rests with the Supreme Court. The rational is that those most sensitive and important constitutional questions should be decided by the highest court in the land, with the most experience and competence to interpret and judge constitutional issues. Passing all constitutional questions to the Supreme Court will ensure judicial certainty and avoid many conflicting constitutional interpretations. Other supporters of the centralized approach: Professor Shimon Shetreet of The Hebrew University and Professor Ze’ev Segal of Tel Aviv University and the representative of the Ministry of Justice all supported a centralized system in the present era because of the public sensitivity regarding the invalidation of Knesset legislation.
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