Forum for Judicial Review
The Neeman Commission recommended a ‘centralized’ model of judicial review in which a lone body would have the power to strike down laws as unconstitutional. (This as opposed to a ‘distributed’ model, wherein any court could exercise judicial review). The Neeman Commission recommended that the Supreme Court serve as the body so empowered.
Supreme Court vs. Constitutional Court
Professor Gideon Sapir (Bar-Ilan University) disagreed with the Ne’eman Commission’s recommendation, pointing out that most states using such a centralized model create a specialized Constitutional Court outside the regular judiciary system for this purpose. Professor Sapir stated that of all the usual justifications for using a centralized model, only the recognition of constitutional questions as political-ideological matters, which should duly be decided by a body constructed for rendering value judgments, was relevant to the Israeli case. It is for this precise reason, argued Professor Sapir, that a special Constitutional Court is necessary. Professor Sapir argued that that the interpretation of the Constitution will inevitably be influenced by the identity of the presiding judges. The selection of these judges is therefore an ideological question, which must be decided politically. Removing this decision from the hands of the Knesset reduces the capacity of every citizen to participate in the process of determining issues central to their fate, as individuals and as a nation. Professor Asher Maoz predicted that greater political influence in the judicial nomination process would result in smaller minority representation.
Centralization as a means of preventing uncertainty
Professor Maoz argued that decentralized judicial review leads to uncertainty regarding the law. Two lower courts in different cities, for example, may rule differently regarding the same law, with the untenable result that the law will simultaneously be binding in one city, while being unconstitutional in the other. Professor Shimon Shetreet stated that uncertainty due to decentralization is not a problem, arguing that it simply allows the issue to ripen, and helps create a marketplace of ideas. Ron Gazit added that ultimately, a lower court decision that strikes down legislation – whether primary or secondary legislation – will likely be appealed to the Supreme Court, which will settle the matter.
Centralization as a means of establishing a high threshold for overturning legislation
Professor Asher Maoz favored centralization, stating that while lower court judges in some countries have exercised restraint in taking the momentous step of invalidating legislation, this has not been the case in Israel. A case which puts into question the constitutionality of legislation should more properly be addressed by the Supreme Court.
A centralized system allows only one court to practice judicial review, thereby preventing the potential for a lowly traffic court, for example, to overturn Knesset legislation. Professor Sapir did not believe that this would be a widespread problem, and others felt that so long as the lower court was empowered only to rule regarding the case before it, this was acceptable.
Centralization as a means of improving efficiency
It was suggested that a centralized system would improve efficiency, with all constitutional questions handled by one specialized court. However, Professor Sapir cited the experience of countries using this system, which often suffer from the inefficiency of suspending cases in one court, waiting for another court to hear the case and issue instructions, and only then resuming the case. Ron Gazit anticipated abuse of this system by attorneys looking to cause unnecessary delays. Professor Zilbershatz stated that the commission’s recommendation of centralized Judicial review came after deliberation not only of the theoretical arguments, but after careful consideration of the practical political and public acceptability of centralization versus decentralization. The commission came to its final recommendation based largely upon the feeling that the public is not ready to accept decisions of lower courts canceling legislation.
Direct challenge to High Court of Justice vs. referral via lower court
MK Saar asked if the proposed model, requiring challenges to the constitutionality of a law to be referred by lower courts to the Supreme Court, was not overly complicated. MK Ravitz responded that currently most challenges to laws are taken directly to the High Court of Justice, regardless of their merit. The proposed system would enable the lower courts to act as filters for such challenges. Eyal Sandberg pointed out that direct challenges in the High Court of Justice would still be feasible. A balance would be created, said MK Eitan , between the lower courts, who would refer the challenges, and the Supreme Court, which would carry out the review. The lower court would not be able to dominate the decision by simply refusing to refer a case with possible merit, added MK Eitan, as its decision would be subject to appeal.
In order to limit uncertainty regarding the validity of legislation, MK Saar proposed defining a set amount of time during which challenges to the constitutionality of a law could be raised in lower courts. After this time period, the law could not be challenged, except by directly petitioning the High Court of Justice. Dr. Reichmann responded that it is actually the lower courts which serve, in practice, to limit the activism of the Supreme Court, and hence to limit the degree of uncertainty regarding validity of laws, and the degree to which laws are vulnerable to ideological decisions of the Supreme Court. Dr. Reichmann proposed that no direct challenges to the High Court of Justice be allowed, and that judicial review be exercised only in cases referred to the Supreme Court by the lower courts. Deputy Attorney-General Yehoshua Shofman stated that when facing criminal charges, a person is entitled to a determination regarding the constitutionality of the law in question. He should not be forced to face the charges in a forum that disregards the possibility that the law is unconstitutional, while attempting to challenge the law in a different forum. Deputy Attorney-General Shofman added that enabling the court to exercise judicial review using only theoretical tools and arguments, rather than having the court examine the law in the context of an actual case, is a recipe for increasing tension between the Legislature and the court. The committee decided to adopt three versions on this matter: the Neeman proposal, that of MK Saar, and that of Dr. Reichmann.
Judicial selection and quorum
Should the Constitution allow, as proposed, a quorum of nine judges of the Supreme Court to exercise judicial review, said Prof. Ron Shapira of Tel Aviv University, the Constitution must also delineate the judicial selection process and the permanent number of Supreme Court judges.
Options for relief
Dr. Reichmann felt that the proposal would give the court unduly wide latitude in deciding on “any relief”. Specifically, he warned that the court could infuse its own ideas into the law.
Deputy Attorney-General Shofman responded that this practice of “reading in” enables the court to resolve potential contradictions between the Constitution and ordinary legislation, thereby allowing the court to uphold the legislation. “Any relief” could also include the court practice of “reading out”, i.e. broadly upholding legislation while determining that a specific portion must be ignored or excised. Finally, the court would have at its disposal the option of delaying the end of the validity of a law, even if found unconstitutional, where warranted by circumstances. (Should the court so decide, it could also provide relief as necessary to individuals unjustly affected by the continuing validity of the law during this time period.)
MK Eitan strongly objected to the possibility of “reading in”, as this would essentially constitute legislation, which should be the exclusive realm of the Legislature. Deputy Attorney-General Shofman stated that these practices minimized the voiding of acts of the Legislature, and therefore should be seen as minimizing the limits on the supremacy of the Legislature. However, MK Eitan preferred that the Judiciary void unconstitutional legislation, and refrain from insinuating itself into the legislative process. MK Eitan did not object to the possibility of the court delaying its voiding of an unconstitutional law.
MK Tamir proposed including an instruction to the effect that while judicial interpretation is allowed, it must remain faithful and subservient to the language of the law.
The court has indicated, reported Dr. Sommer, that it will rarely use the mechanism of delayed voiding. Dr. Sommer proposed that this mechanism be instituted as the default option, to be utilized so long as there is no urgent need for immediate voiding. This allows the Knesset to consider its options and enact a repaired version of the legislation, thereby decreasing tension between the Legislator and Judiciary.
Eyal Sandberg replied that legislation which is fatally flawed, for either procedural or substantive reasons, should naturally be invalid. An individual should not be bound, even temporarily, and certainly in matters of criminal law or civil rights, by legislation which has been determined to be unconstitutional. This should be the default, with the court given discretion to delay invalidation where special circumstances warrant it.
Dr. Sommer stated that his proposal would actually hasten the process and minimize the period during which an unconstitutional law would remain valid, as the court, or the Constitution itself, would define the time period during which the Knesset could act before the invalidation would become effective.
MK Eitan asked why the court should be allowed to exercise discretion in deciding to effectively – if temporarily – uphold a law which has been determined to be unconstitutional, pointing out that the Knesset itself could not do so except by use of an override clause. Deputy Attorney-General Shofman stated that the court’s delayed invalidation was analogous to the Knesset’s exercise of an override clause, both methods allowing for practical considerations to temporarily override principled ones.
The Committee decided to create versions of the proposal stating that, either as the default option or only under special circumstances, the court could order invalidation delayed, for a time period determined at its discretion.
MK Eitan proposed that the Constitution should define the court’s criteria in exercising discretion should as affording the Knesset time to remedy or resolve the situation as it sees fit, while not allowing the law in question to cause harm. While Eyal Sandberg felt this was obvious and need not be included, MK Eitan did not want to leave this open to future interpretation.
Basis for judicial review: constitutional or ideological
MK Ravitz stated he would not object to lower-court judicial review based on contradictions between ordinary legislation and Constitutional legislation, but would object to such judicial review based on ideological decisions. MK Oron questioned whether this distinction could always be made.
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