Judicial Reform or Abusive Constitutionalism in Israel

Abstract

How should the constitutional reform in Israel be assessed in comparative terms? After all, constitutional systems worldwide adopt a variety of different approaches to the design of judicial systems. In this essay we suggest that comparative constitutional understandings point to the centrality of three key sets of norms as part of the “democratic minimum core”: (1) commitments to free and fair, regular, multi-party elections; (2) political rights and freedoms and (3) a system of institutional checks and balances necessary to maintain (1) and (2). Any change to judicial power and independence must be assessed against the benchmark of the democratic minimum core, and by reference to its cumulative practical effect on a system of institutional checks and balances.

We claim that recent changes In Israel may already threaten these institutional checks, and have the potential to do more damage in the future, if given broad effect and if combined with further changes to the power and independence of the Supreme Court. On this basis, we suggest, the relevant changes should be viewed as either “abusive” or “proto-abusive” in nature. By threatening to undermine both the power and independence of the Supreme Court of Israel, they directly threaten the health of the constitutional checks and balances system, and hence, the “democratic minimum core” in Israel.

Keywords: Israel, Abusive Constitutionalism, Reform, Judicial Independence, Borrowing, Frankenstate, Democratic Erosion, Judicial Overhaul