Political Questions in the Court: Is 'Judicial Self-Restraint' a Better Alternative than a 'Non Justiciable' Approach?
COMAS, The Striks Law School
July 24, 2007
VII World Congress of the International Association of Constitutional Law: Rethinking the Boundaries of Constitutional Law, 2007
Judicial review of sensitive political questions may be treated in a number of forms. Imagine a "spectrum", at one end of which there is a constitutional barrier to any kind of judicial intervention, such as an explicit constitutional norm withdrawing certain kinds of issues from the court's jurisdiction. At the other end, there is regular judicial review for all political questions. Only rarely do states and their judiciaries position themselves clearly at either of the spectrum's extremities, although examples can be found of both approaches i.e. the approach that constitutionally negates the possibility of judicial review of political issues, and the approach that regards political questions as "regular" legal questions, hence admitting of judicial review.
Between the two extremities, there are some intermediate approaches. Each state gives its own particular response to the "political question" doctrine, determining its place on the spectrum of judicial review, based on its own specific balancing formula - the product of the specific variables of that state. These variables include the status of the constitutional court, its relative position in the system of state authorities, its power, and its degree of independence. It also depends on custom and political culture. On a formal level it is also determined by normative and constitutional arrangements, which occasionally exclude defined areas from the court's jurisdiction.
According to one of the intermediate possibilities, no constitutional barrier to judicial intervention is found, and therefore it is incumbent on judges themselves to establish mechanisms that enable them to avoid adjudicating political questions. This model draws very near to the end of the spectrum which prevents judicial intervention in political questions, and will henceforth be referred to as the non-justiciable approach.
Another approach, closer to the position endorsing regular judicial review, allows the judges themselves to establish criteria for intervention on political questions, but the criteria established differ from the criteria applied in judicial review of acts of other branches of government. This approach - of "judicial self restraint" - does not necessarily prevent judicial review on political questions, but the review is more "restrained" and more rarely exercised. While the judge may regard himself as authorized to adjudicate a certain question, given that he regards a certain question as "justiciable", he may nonetheless reject a petition on its merits in view of its failure to satisfy certain criteria required for judicial intervention.
In this paper I argue that although the modern approach to political questions in the court seems to be the "judicial self restraint" approach, this model should be reconsidered and its problems disclosed. Both approaches will be presented, while exemplifying an issue usually classified as a "political issue" in foreign systems: judicial review of internal parliamentary procedures. In this issue, an examination of comparative law in states such as Israel, Germany, and Spain shows that the claim of non-justiciability has by and large been abandoned in favor of the "constitutional" judicial review, exercised cautiously, with judicial self-restraint. The central idea emerging from the case law is that the doctrine of constitutional supremacy dictates the judicial overseeing of constitutional organs, even within the framework of their parliamentary activities, and even with respect to essentially political questions.
Number of Pages in PDF File: 21
Keywords: judicial review, political question, Israelworking papers series
Date posted: March 25, 2009
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