Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power

Abstract:     
It is often asserted that a formal constitution does not necessitate judicial review over primary legislation. Rather, a country may conceive of other mechanisms to protect the constitution from intrusion by the regular political bodies. The question arises whether the reverse holds true. Can we envision a country that exercises judicial review over primary legislation yet lacks a formal constitution? Surprisingly, Israel's constitutional system, prior to the famous 1995 United Mizrahi Bank decision, offers an affirmative answer to this question.

This article focuses on Israel's constitutional experience during its founding period. It further explains the unique revolutionary role performed by the Israeli Supreme Court in deciding United Mizrahi Bank against the background of parliamentary sovereignty tradition. Using Israel as a case study within a comparative constitutional framework, the article offers three important lessons: First, it explains how an American style judicial review over primary legislation may co-exist with parliamentary sovereignty, notwithstanding the prevailing understanding of these two seemingly mutually exclusive frameworks. It further details the mechanisms by which judicial review can be introduced within a parliamentary sovereignty tradition. Second, it explains the theoretical and historical roots of legislative override power in common-law interpretation techniques. While the notwithstanding clause is considered a unique Canadian invention, this article suggests that Israel has exploited legislative override techniques prior to the adoption of the Canadian Charter. Last, using the Israeli and Canadian experiences, it offers several warnings about how not to interpret “notwithstanding clauses” if one desires robust constitutionalism.

Number of Pages in PDF File: 56

Accepted Paper Series