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Democracy and the New Constitutionalism in Israel

  • Michael Mandel
Extract

In a recent paper, I argue that the “new constitutionalism” — the transformation in the relations between courts and representative institutions that has swept the world and that is now sweeping Israel too — can best be understood as one of those “changes of everything so that everything would remain the same”. The promotion of courts and the demotion of legislatures through the judicial enforcement of “rigid” Charters and Bills of Rights has “legalized politics,” changing its nature as well as its locus. Contrary to those who regard this as an essentially democratic development, I argue that it is, to paraphrase Reuben Hasson, a weapon in the hands of democracy's enemies. I argue that the new constitutionalism was intended to operate and does operate as an antidote to democracy, that it was meant to preserve the oligarchy of private property from the mortal danger posed by representative institutions elected by people without property, the original Greek “demos” from whence the term.

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1 Mandel, Michael, “A Brief History of the New Constitutionalism, or ‘How We Changed Everything So That Everything Would Remain the Same’”, (1998) 32 Isr. L.R. 250.

2 R.A. Hasson, “How to Hand Weapons to Your Enemies — The Charter of Rights Fiasco”, (June, 1982) 5 Steelshots.

3 See, for example, Mandel, Michael, The Charter of Rights and the Legalization of Politics in Canada (Thompson Educational Publishers, rev. ed., 1994) and, more recently, Law, Politics and the Supreme Court: The Québec Secession Case (The Hebrew University of Jerusalem Halbert Center for Canadian Studies, 1998).

4 Mandel, Michael, “Legal Politics Italian Style”, in Tate, C. Neal and Vallinder, Torbjorn, eds., The Global Expansion of Judicial Power (New York University Press, 1995).

5 A full account can be found in Klein, Claude, La Démocratie D'Israël (Editions du Seuil, 1997) and a briefer one in Kretzmer, David “The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?”, and “The Supreme Court and Parliamentary Supremacy”, in Zamir, Itzhak and Zysblat, Allen, eds., Public Law in Israel (Clarendon Press, 1996) 141 and 303.

6 A. Bergman v. Minister of Finance and State Comptroller, in Zamir and Zysblat, ibid., at 310.

7 (1992) 47(v) P.D. 485.

8 Ha'aretz (Eng. ed.), March 19, 1998, at 3.

9 See the official government website <http://www.israel-mfa.gov.il/peace/independ.html> and Appendix to Elazar, Daniel J., ed., Constitutionalism: The Israeli and American Experiences (University Press of America, 1990) 211; Eton Rishmi 14.5.1948 Vol. 1, p. 1, at p. 2.

10 Ha'aretz (Eng. ed.), February 6, 1998, at 1.

11 Ha'aretz (Eng. ed.), June 23, 1998, at 3.

12 United Mizrahi Bank Ltd., et al. v. Migdal Cooperative Village, et al. (1995) 49(iv) P.D. 221, opinion of the President of the Court, Justice Aharon Barak.

13 Infra n. 79.

14 Association of Investment Management in Israel v. The Minister of Finance.

15 Ha'aretz (Eng. ed.), June 18, 1998.

16 The designation “Revisionists” came precisely from the programme to revise the boundaries of the State to include the whole of ancient Israel.

17 Medding, Peter Y., The Founding of Israeli Democracy, 1948-1967 (Oxford University Press, 1990) 64.

18 Michaelis, Meir, Mussolini and the Jews (Clarendon Press) 8687.

19 “When liberal thought flourished it was said of the state's authority that it ought to be limited to the role of ‘night watchman’. That period is past, and every free man prays that we will not be forced to admit that it has gone forever”. Knesset Debates, February 1, 1950 reprinted in Rabinovitch, Itamar and Reinharz, Jehuda, Israel in the Middle East: Documents and Readings on Society, Politics, and Foreign Relations 1948-Present (Oxford University Press, 1984) 45. See also Perlmutter, Amos, The Life and Times of Menachem Begin (Doubleday & Co., 1987) 250ff. and Medding, supra n. 17, at 39.

20 Don Peretz, and Doron, Gideon, The Government and Politics of Israel, (Westview Press, 3rd ed., 1997) 108.

21 The notion of Mapai as a party of the Left is sometimes hard for Israelis to accept, given its control of government and its general hegemony for the first 20 years of the State's existence, not to mention its encouragement of private capital and its antipathy to the Soviet Union. However, its labour-oriented and social democratic policies and ideology — a welfare state with extensive union rights and most of the economy in public or union hands — as well as its membership and constituency put it firmly in the camp of contemporary European socialist parties. As in most of Western Europe, the social democratic parties were the leading parties of the working class with the communist parties very much junior partners. Where the communist parties were dominant, they were non-revolutionary and reformist as well. See Sassoon, Donald, One Hundred Years of Socialism: The West European Left in the Twentieth Century (Fontana Press, 1997).

22 Medding, supra n. 17, at 39.

23 Nathan Yanai, “Politics and Constitution-making in Israel: Ben-Gurion's Position on the Constitutional Debate Following the Foundation of the State”, in Elazar, supra n. 9, at 107.

24 Lahav, Pnina, “Foundations of Rights Jurisprudence in Israel: Chief Justice Agranat's Legacy”, (1990) 24 Isr. L.R. 211, at 226.

25 Medding, supra n. 17, at 171-174. This is why the provision invoked in Bergman (1969), enacted in 1958, had the special majority requirement; it was put there to protect proportional representation: Klein, supra n. 5, at 163.

26 Yisrael Bar-Yehudah (Mapam), Knesset Debates February 1, 1950, supra n. 19, at 44 (emphasis added).

27 “The left (Mapam) and right (Herut) were in uneasy — and often acrimonious — alliance over the need for a constitution or bill of rights: the one, to enshrine its labor ideology as a national heritage, the other, to protect itself and other minorities from deviation from constitutional freedoms through a parliamentary “mechanical majority”. Avi-hai, Avraham, Ben Gurion State-Builder: Principles and Pragmatism 1948-1963 (John Wiley and Sons, 1974) 251.

28 Lahav, Pnina, “The Supreme Court of Israel: Formative Years 1948-1955”, (1990) 11 Studies in Zionism 45, at 49.

29 Merrillat, H.C.L., Land and the Constitution in India (Columbia University Press, 1970) 3751.

30 Rabinovitch and Reinharz, supra n. 19.

31 Arian, Asher, The Second Republic: Politics in Israel (Chatham House, 1998) 26.

32 Gilbert, Martin, Israel: A History (Doubleday, 1998) 502.

33 Amnon Rubinstein, “The Struggle Over a Bill of Rights in Israel” in Elazar, supra n. 9, at 141.

34 Ha'aretz (Eng. ed.), February 6, 1998, at 1.

35 Arian, supra n. 31, at 59.

36 Aharoni, Yair, “The Changing Political Economy of Israel”, Annals of the American Academy of Political and Social Sciences (1998) 127, at 132.

37 Ben-Porat, Ami, The State and Capitalism in Israel (Greenwood Press, 1993). Israel, in its founding period, was “the country with the largest amount of governmental influence on the detailed operation of the economy among all western-type democratic states”. It was characterized by a “relative weakness of private employers” who were “effectively … represented by the government”: Medding, supra n. 17, at 109, 116.

38 Sassoon, supra n. 21, at 27-59; 117-36.

39 Mandel, supra n. 1.

40 As Ben Gurion told Mapam in 1949: “We will eventually establish a socialist regime, but for the immediate years ahead our concern must be immigrant absorption. Our national income is very small. It must be increased by raising productivity, using more modern machinery, introducing improved management techniques, and restraining the greed of the capitalists — all this demands planning”. Ben Gurion, David, Israel: A Personal History (Funk & Wagnalls, 1971) 344. “We are the sons of a people whose fate differs from that of all other peoples, and we are faced with a task that was not imposed upon the workers of any other country”. Gilbert, supra n. 32, at 251.

41 Mandel, supra n. 1, at 269.

42 “Further examination of the attitude of the parties of the Left in Western Europe to constitutional questions confirms that virtually all of them were united in their unashamed centralism … But they were all also ‘parliamentarist’: they were not in favour of presidential systems … nor were they in favour of a strong constitutional court or a second chamber which would weaken the powers of the main chamber. This is not surprising: the Jacobin tradition of the centralist state had been incorporated lock, stock and barrel to the continental socialist tradition. Socialists assumed that a move away from capitalism would require a firm use of the state machine: there was no point in limiting its powers. Constitutional courts gave power to senior judges and the Left — quite understandably — did not trust judges … The allergy of the British Labour Party to any constitutionalism originated in the same fear: any obstacle to parliamentary sovereignty would be used by its opponents to block reforms and socialism”. Sassoon, supra n. 21, at 131.

43 Klein, supra n. 5, at 324.

44 Peretz and Doron, supra n. 20, at 105.

45 Rubinstein, supra n. 33, at 139.

46 Sharkansky, Ira, “Israel's Political Economy”, in Sprinzak, Ehud and Diamond, Larry, eds., Israeli Democracy Under Stress (Lynne Rienner Publishers, 1993) 154.

47 Klein, supra n. 5, at 326.

48 Gadi Wolfsfeld, “The Politics of Provocation Revisited: Participation and Protest in Israel,” in Sprinzak and Diamond, supra n. 46.

49 Ha'aretz (Eng. ed.), May 19, 1998, at 6.

51 Ha'aretz (Eng. ed.), June 2, 1998, at 6.

52 Ha'aretz (Eng. ed.), July 6, 1998, at 1.

53 Aharoni, supra n. 36, at 137-139.

54 Ibid., at 132.

55 Hirschl, Ran, “Israel's ‘Constitutional Revolution’: The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order”, (1998) 46 American Journal of Comparative Law 427, at 432433.

56 Arian, supra n. 31, at 66.

57 Ibid., at 70-71.

58 Ibid., at 70.

59 Beilin, Yossi, Israel: A Concise Political History (St. Martin's Press, 1992) 214. See also Yitzhak Rabin's speech to the Knesset on July 13, 1992: “Rabin made it clear that the Labour Party was finally turning its back on its Socialist legacy. His government would, he pledged, increase economic growth by ‘retooling the economy for open management, free of administrative restrictions and superfluous government involvement’. There was, he said, ‘too much paperwork, not enough production’”: Gilbert, supra n. 32, at 551.

60 Ha'aretz (Eng. ed.), February 4, 1998, at 1.

61 Klein, supra n. 5, at 145: “Le débat actuel porte donc sur le portrait type du juge à la Cour supreme, présénté comme ashkénaze, libéral et laique. La vérité est que la grande majorité des juges nommés correspondent bien à ce modéle”.

62 Allen Zysblat, “The System of Government”, in Zamir and Zysblat, supra n. 5, 1 at 15.

63 Mandel, supra n. 1.

64 Parlamento italiano, commissione bicamerale, Testo approvato il 4 novembre 1997: Progetto di legge costituzionale.

65 Mandel, supra n. 1.

66 Rubinstein, Amnon, “The Benefits of Direct Elections” Ha'aretz (Eng. ed.), June 2, 1998, at 6. See also Susser, Bernard, “The Direct Election of the Prime Minister: A Balance Sheet”, in Elazar, Daniel J. and Sandier, Shmuel, eds., Israel at the Polls 1996 (Frank Cass, 1998) 237, at 239: “to avoid the demoralizing spectacle of coalitionmaking parties abjectly prostrating themselves to their potential junior coalition partners”.

67 Ha'aretz (Eng. ed.), March 19, 1998, at 3. Meretz is a small party based around peace and civil rights, made up of the tiny remnant of Mapam, the civil rights party Ratz, and Shinui. It received 7.4% of the vote in 1996.

68 Klein, supra n. 5, at 73. Naturally, the percentage is disputed. There is some participation in religious practices even by those who define themselves as secular: Peres, Yochanan and Yuchtman-Yaar, Ephraim, Trends in Israeli Democracy: The Public View (Lynne Rienner Publishers, 1992) 28. On the other hand 56% of Israeli Jews never attend synagogue on the Sabbath: Daniel J. Elazar and Shmuel Sandier, “Introduction: The Battle over Jewishness and Zionism in the Post-Modern Era”, in Elazar and Sandier, eds., supra n. 66, at 15.

69 Klein, supra n. 5, at 77. Perhaps it is relevant here to add that I define myself as a secular Jew and that I find it absurd that civil marriages are not permitted in Israel.

70 Dworkin, Ronald, Freedom's Law: The Moral Reading of the American Constitution (Harvard University Press, 1996) 19; United Mizrahi Bank, supra n. 12, at 122.

71 Dworkin, ibid., at 8. The point can be illustrated by the failure of a Labour-sponsored attempt in July 1998 to end the exemptions from compulsory military service granted to ultra-orthodox Jews (Ha'aretz (Eng. ed.), July 8, 1998, 1). The law failed despite the claims of its sponsors that the majority of Israelis were in favour of ending the exemption. One stumbling block was that the Arab MKs voted with the religious parties and most of the governing coalition on the promise that a bill to draft Arab citizens, also sponsored by Labour, would be blocked. But what can this have meant if not that the supposed majority was an artificial one? This majority was only to be seen if the question of drafting the ultra-orthodox were taken in isolation; but it did not exist in isolation. There was no majority for the proposition that both Arabs and ultra-orthodox Jews be drafted, which was the more accurate position of the sponsors of the Bill. The unwillingness of the sponsors to take into account the position of the Arab minority lost them their support and their majority. Nor could those in the governing coalition who, in isolation, may have wanted the ultra-orthodox drafted, have afforded to lose their support on other issues evidently of greater importance to them. So, proportional representation provided both a superior picture of majority will and a superior protection of minority rights than any other electoral system, much less an abstract opinion survey. This is similar to the most recent capital punishment debate in Canada's Parliament. A majority of the public and the Members of Parliament were said to support capital punishment, but when it came to the vote, they could not agree on precisely what type of murderer (premeditated, sex, child, repeat, police, etc.) to execute. Those who wanted one type executed found no executions at all better than the alternative of executing another type. The majority was purely abstract and unreal.

72 United Mizrahi Bank, supra n. 12, at 79-80.

73 Ibid., at 120-121.

74 Ibid., at 123.

75Hatsiduk lekach hu b'kfifuto shel hamchokek lehora'ot chukatiot-alchukiot, shehu atzmo kav'an”, Association of Investment Managers, supra n. 14, para. 19. For similar remarks in the Canadian context see Vriend v. The Queen (Supreme Court of Canada, April 2, 1998), para. 132. The Canadian Court also marshalled the democracy-of-ends-not-of-means argument (para. 176).

76 Ha'aretz (Eng. ed.), June 18, 1998.

77 Klein, supra n. 5, at 134.

78 United Mizrahi Bank, supra n. 12, at 80. For another example see Justice Barak's minimalization of the importance of the failure to enact a Basic Law on criminal procedure where constitutional due process is concerned: Barak, Aharon, “The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and its effect on Procedural and substantive Criminal Law”, (1997) 31 Isr. L.R. 3, at 17.

79 United Mizrahi Bank, supra n. 12, at 67. Here Justice Barak was just following Ronald Dworkin, supra n. 70, at 11, who put it this way: “The moral reading asks them to find the best conception of constitutional moral principles — the best understanding of what equal moral status for men and women really requires for example — that fits the broad story of America's historical record”.

80 “We are under a Constitution, but the Constitution is what the Judges say its is”. United States Supreme Court Justice, later Chief Justice, Charles Evans Hughes, speaking in 1907, to be quoted and popularized by President Franklin D. Roosevelt, in his radio talk of 1937: O'Brien, David M., ed., Constitutional Law and Politics. Volume Two: Civil Rights and Civil Liberties (Norton & Co., 2nd ed., 1995) 69.

81 Mandel, supra n. 3, at 106-126.

82 United Mizfahi Bank, supra n. 12, at 126.

83 Ibid., at 127.

84 Marx, Karl and Engels, Friedrich, The German Ideology [1846] (Progress Publishers, 1976), 7071: “Whilst in ordinary life every shopkeeper is very well able to distinguish between what somebody professes to be and what he really is, our historiography has not yet won this trivial insight. It takes every epoch at its word and believes that everything it says and imagines about itself is true”.

85 United Mizrahi Bank, supra n. 12, at 1.

86 Ha'aretz (Eng. ed.), February 4, 1998, at 1.

87 “Hebrew-speaking goyim” is the way one religious politician described secular Jews.

88 Ha'aretz (Eng. ed.), February 6, 1998, at 1.

89 Ha'aretz (Eng. ed.), June 10, 1998, at 1.

90 Deri himself has been charged with several counts of corruption and editorialist Ze'ev Segal argued in Ha'aretz a few days after the outburst by Cohen that Shas was merely trying “to trample faith in the legal system — the same legal system in which several Shas members have been interrogated, suspected and charged with offences”: Ha'aretz (Eng. ed.), February 8, 1998, at 6.

91 Ha'aretz (Eng. ed.), June 11, 1998, at 6.

92 Segal, Ze'ev, “Judges in the crosshairs”, Ha'aretz (Eng. ed.), May 25, 1998, at 6. Justice Barak was subject to a particularly crude death threat in 1996 from a telephone caller who said: “You'll rot next to Rabin's grave, then you will understand”. He now has a 24-hour armed guard: Gilbert, supra n. 32, at 595. See also Ha'aretz (Eng. ed.), June 12, 1998, at 3.

93 Klein, supra n. 5, at 143.

94 See supra n. 80.

95 According to a 1992 poll, only 40% of the ultra-orthodox appear to think that a democratic government they disagree with is preferable to a non-democratic government, while seculars favour democracy by 73% and observant Jews who are not ultraorthodox favour democracy by 60%. The same discrepancies can be seen in attitudes to Arabs. Agreement with the statement “the State of Israel belongs to the Jews and only to the Jews” was expressed by 76% of the ultra-orthodox, 56% of observant Jews and 28% of secular Jews: Ha'aretz (Eng ed.), June 2, 1998, at 3.

96 See supra n. 88.

97 Ha'aretz (Eng. ed.), March 26, 1998, at 1.

98 The story is told of Moses when he received the laws of kashrut from the Lord on Mount Sinai. Moses was particularly troubled when the Lord intoned “THOU SHALT NOT SEETHE A KID IN ITS MOTHER'S MILK. “Does that mean”, Moses asked, “that we can't eat milk and meat at the same time?” The Lord, evidently frustrated, replied: “MOSES, LISTEN TO WHAT I'M SAYING: THOU SHALT NOT SEETHE A KID IN ITS MOTHER'S MILK. Moses, still puzzled, reflected and then ventured: “Okay, I think I've got it now. We have to wait three hours after eating meat before drinking milk and one hour after drinking milk before eating meat?” The thundering voice of the Lord came back: “MOSES! LISTEN TO MY VOICE: THOU SHALT NOT SEETHE A KID IN ITS MOTHER'S MILK! Moses, now very excited: “Okay, okay, now I've got it for sure. We have to keep separate sets of dishes for milk products and separate sets for meat products and they have to be washed separately and …” “MOSES! … OH, ALL RIGHT, HAVE IT YOUR WAY …”

99 Supra n. 6.

100 Kol Ha'am Company Limited v. Minister of Interior in Zamir and Zysblat, supra n. 5.

101 Meir Schnitzer and Others v. The Chief Military Censor and Others (1989), English translation in Zamir and Zysblat, supra n. 5, at 108.

102 Uri Ganor, Advocate and others v. The Attorney General (1990), ibid., at 334.

103 The Movement for Quality in Government in Israel & Others (1993) 47(v) P.D. 404, 10 Selected Judgments of the Supreme Court of Israel 258.

104 Shalit v. Peres & Others (1990) 44(iii) P.D. 353, 10 Selected Judgments of the Supreme Court of Israel 204.

105 Nevo v. National Labour Court and Others (1990) 44(iv) P.D. 749, 10 Selected Judgments of the Supreme Court of Israel 136.

106 El Al v. Danilevitch (1994) 48(v) P.D. 749, discussed in Klein, supra n. 5, at 140, n. 1.

107 Shakdiel v. Minister for Religious Affairs (1988) 42(ii) P.D. 221 (abridged in 24 Isr. L.R. 129); Poraz v. Mayor of Tel Aviv (1988) 42(ii) P.D. 307.

108 Hoffman v. City Council of Jerusalem (1994) 48(i) P.D. 678. See also recently the decision of the High Court of Justice reported in Ha'aretz (Eng. ed.), November 24, 1998.

109 Raskin v. Religious Council of Jerusalem (1990) 44(ii) P.D. 673 (abridged in 26 Isr. L.R. 77).

110 Menucha Nechona Society v. Minister of Religious Affairs H.C. 397/88.

111 The Galilee Experience v. Mayor of Tiberias (1991) 45(iv) P.D. 58.

112 Hitachdut Hasefaredim Shomrei Torah v. Director of Population Registry (1989) 43(ii) P.D. 727 discussed in Kretzmer, David, “Constitutional Law”, in Shapira, Amos and DeWitt-Arar, Keren C., eds., Introduction to the Law of Israel (Kluwer Law International, 1995) 39, at 43.

113 Levy, Gideon, Ha'aretz (Eng. ed.), January 25, 1998, at 6. See, also, Klein, supra n. 5, at 140, n. 2 (“on a pu dire que l'activisme de la Cour supreme s'arretait à la ligne verte”) and Tom Segev, , Ha'aretz (Eng. ed.), February 6, 1998 at 8: “As it approaches its 50th birthday, it should be commended for its positions on civil rights, but it must be said that the court does not do a good job defending the human rights of Arab residents of the territories”.

114 Izat Muhamed Mustafa Dwaikat and others v. The State of Israel and others (the “Elon Moreh Case”) (1979) Zamir and Zysblat, supra n. 5, at 379.

115 Association for Civil Rights in Israel v. Central District Commander and Another (1989), 9 Selected Judgments of the Supreme Court of Israel 1; Turkeman v. Minister of Defence (1994) 48(i) P.D. 217.

116 Morcus v. Minister of Defence (1991) 45(i) P.D. 467.

117 National Council for the Child's Welfare v. Minister of Labour and Welfare (1993) 47(i) P.D. 148, discussed in Maoz, Asher, “Constitutional Law”, in Zamir, I. and Colombo, S., eds., The Law of Israel: General Surveys (Sacher Institute for Legislative Research On Comparative Law) 5.

118 Kretzmer, David, “Forty Years of Public Law”, (1990), 24 Isr. L.R. 341, at 355, n. 54.

119 Asser Al Aziz, Ald Al Aziz, Abd Al Afri and others v. Commander of IDF Forces in the Judea and Samaria Region (1988), Zamir and Zysblat, supra n. 5, at 410.

120 Association for Civil Rights in Israel v. Minister of Defence (1993) 47(ii) P.D. 267; 10 Selected Judgments of the Supreme Court of Israel 168. However it must be said that in this case the Court granted a retrospective right to an in-person hearing for those wishing to have one, even if the application was made from outside Israel.

121 Burkan v. Minister of Finance (1978) 32(ii) P.D. 800.

122 Yeredor v. Chairmen of the Central Elections Committee for the Sixth Knesset (1965) 19(iii) P.D. 365, discussed in David Kretzmer, supra n. 112, at 41.

123 Neiman v. Chairmen of Central Elections a Committee for the 11th Knesset (1984) 39(ii) P.D. 225, discussed in Klein, Claude, “The Defence of the State and the Democratic Regime in the Supreme Court”, (1985) 20 Isr. L.R. 397.

124 Movement for Progressive Judaism in Israel Fund v. Minister of Religious Affairs (1989) 43(ii) P.D. 661 abridged in (1991) 25 Isr. L.R. 110.

125 Ressler & Others v. Minister of Defence (1988) 42(ii) P.D. 441; 10 Selected Judgments of the Supreme Court of Israel 1. In December, 1998 the Supreme Court ruled the discrimination formally illegal without taking a position on the merits. This is discussed below.

126 For example the Government Companies Law of 1975 (as amended in 1993) provides for affirmative action for women in the directorships of public companies. Opposition to discrimination against women can be found in the earliest legislation of the State. E.g., the Women Equal Rights Law, 1951 (5 L.S.I. 171) provided that “any provision of law which discriminates, with regard to any legal act, against women as women, shall be of no effect”.

127 Avitan v. Israel Lands Administration (1989) 43(iv) P.D. 297, discussed in Maoz, supra n. 117, at 32, in which discrimination in favour of Bedouins over Jews in the matter of subsidized land was upheld.

128 Member of Knesset Rabbi Meir Kahane and the “Kach” Movement v. The Executive Board of the Broadcasting Authority and Others (1985) Zamir and Zysblat, supra n. 5, at 74.

129 Neiman et al., supra n. 123. To these cases, one might perhaps add the much milder one of Universal City Studios Inc. & Others v. Film & Theatre Censorship Board & Others (1989) 43(ii) P.D. 22, 10 Selected Judgments of the Supreme Court of Israel 229, where the Court overturned the ban on the film “The Last Temptation of Christ” which offended many Christians, as well as being a thoroughly bad movie.

130 This is also the case for several recent high-profile interventions: the disqualification of a Jewish party from running in municipal elections on the grounds of racism reported in Ha'aretz (Eng. ed.), October 30, 1998, was a straightforward application of the Municipal Elections Act. The acquittal of kibbutzniks for charges of working on the Sabbath used traditional rules of statutory interpretation (Ha'aretz (Eng. ed.), December 6, 1998).

131 Harel, Alon, “The Rule of law in Israel: Philosophical Aspirations and Institutional Realities” (1998, unpublished manuscript in the possession of the author) at 7: “Others believe that a written constitution may lead to greater caution on the part of the judges and therefore may eventually be detrimental to the protection of human rights … Courts which have to defend their very constitutional powers to review statutes are less able vigorously to defend human rights. Ironically, it is therefore the Courts' declaration of de jure constitutional power which weakens their de facto political power and consequently undermines their ability and commitment to the protection of human rights”.

132 See supra nn. 7 and 8.

133 United Mizrahi Bank, supra n. 12, at 163.

134 Association of Investment Management, supra n. 14, at paragraph 15.

135 Ha'aretz (Eng. ed.), June 17, 1998, at 1.

136 Ha'aretz (Eng. ed.), March 11, 1998, at 1.

137 Ha'aretz (Eng. ed.), July 24, 1998, at 6.

138 Segal, Ze'ev, “Cleverly crafted judicial restraint”, Ha'aretz (Eng. ed.), December 10, 1998.

139 Shohat, Orit, “A cowardly decision”, Ha'aretz (Eng. ed.), December 11, 1998.

140 The Jerusalem Post, December 10, 1998. Other recent examples of judicial reticence are the refusal to intervene in the appointment of a Shas MK with a criminal record to the Chair of a Knesset committee (Ha'aretz (Eng. ed.), October 20, 1998) and the rejection of a petition to provide handicapped voters with access to polling stations (Ha'aretz (Eng. ed.), October 30, 1998).

141 International Herald Tribune, March 5, 1998, at 1.

142 Levy, Gideon, Ha'aretz (Eng. ed.), March 8, 1998, at 6.

143 International Herald Tribune, May 19, 1998, at 3.

144 International Herald Tribune, May 21, 1998, at 10. In September 1999, as I corrected the page proofs to this article, the Supreme Court finally ordered what amounted to a temporary stop to the practice of torturing prisoners. The decision is discussed below.

145 Ha'aretz (Eng. ed.), November 27, 1998 reported that the poverty rate for 1997 among non-jews was 30.3%, compared to a poverty rate for the total population of 16.2%.

146 Ha'aretz (Eng. ed.), November 27, 1998.

147 Ha'aretz (Eng. ed.), April 7, 1998, at 6.

148 Ha'aretz (Eng. ed.), April 9, 1998, at 6.

149 Ha'aretz (Eng. ed.), March 17, 1998, at 2; April 7, 1998, at 6.

150 Ha'aretz (Eng. ed.), April 9, 1998, at 2.

151 Ha'aretz (Eng. ed.), March 10, 1998, at 6; March 13, 1998, at 1.

152 International Herald Tribune, March 2, 1998, at 2.

153 Ha'aretz (Eng. ed.), March 29, 1988, at 6 (“The ‘nation’ in discrimination”).

154 United Mizrahi Bank, supra n. 12, at 126. An obvious example of the dependence of the Court on the legislature for political direction is the equality case of Nevo (women's age of retirement), supra n. 105, which merely applied the Knesset initiative of the Equal Age of Retirement for Men and Women (1987) retroactively.

155 Ruth Gavison, “The Role of Courts in Rifted Democracies”, a paper delivered in Jerusalem at the International Colloquium “Democracy and the Courts sponsored jointly by the Faculty of Law of the Hebrew University of Jerusalem and the Isr. L.R., June 30, 1998.

156 See supra n. 71.

157 Shamir, Ronen, “‘Landmark Cases’ and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice”, (1990) 24 Law and Society R. 781.

158 Ibid., at 786.

159 Ibid., at 789. I was informed by a member of the Dwaiket clan (though I cannot confirm this) that even the land in dispute in the Elon Moreh case was ultimately lost in a subsequent expropriation by the Israeli government for which the courts afforded no relief. This phenomenon is very old. Douglas Hay, in his justly famous study of the death penalty in 18th century England, noted how just one case of the execution of a nobleman served to legitimate the vast number of executions of poor people for a century: Hay, Douglas, “Property, authority and the Criminal Law”, in Hay, D. et al. , eds., Albion's Fatal Tree: Crime and Society in Eighteenth Century England (Allen Lane, 1975).

160 I owe this point to David Kretzmer who made it forcefully when he commented on this paper in its original version.

161 Maoz, supra n. 117, at 49.

162 Ibid.

163 Until September 1999. See below.

164 Levy, Gideon, Ha'aretz (Eng. ed.), January 25, 1998, at 6.

165 Mandel, supra n. 3, at 256; supra n. 1.

166 Mandel, Michael, “Legal Politics Italian Style” in Tate, C. Neal and Vallinder, Torbjorn, eds., The Global Expansion of Judicial Power (New York University Press, 1995) 261, at 276279; supra n. 3, at 220-228.

167 Mandel, supra n. 3, at 223.

168 On September 7, 1999, the Supreme Court issued is decision in the torture case, ruling illegal the investigative techniques that had been authorized by the Landau Commission 12 years earlier. The Shin Bet declared that it would order an immediate halt to he condemned practices, which had been routine up to then. A good, democratic result, no question about it. Should we chalk one up for the constitutional revolution? There are several reasons why we should not. In the first place, the court ruled solely on the formal question of whether the practice was authorized by ordinary law. In finding it was not, the court underlined the responsibility and power of the Knesset to legislate. Nor did it set any limits on the nature of a new torture law, besides dutifully pointing out that any law would have to comply with the (vague) provisions of Basic Law: Human Dignity and Liberty (unless of course these were overridden by the Knesset). The debate immediately started, with all sides, including the government, making their proposals for a new torture law to authorize what the security forces were claiming was necessary to fight terrorism. So to those who praised the court's “sense of justice and courage” (Meron Benvenisti), others responded more accurately that the decision was an “evasion” and “an attempt to shirk responsibility” (Dan Margalit). The court's failure to set real limits on torture must be placed in the timidity/ineffectiveness category discussed in the text. And since the decision did no order anything but a formal change, it is difficult to avoid the conclusion that the court's main goal — hard on the heels of the United Nations' condemnation of Israel's investigative practices — was not to stop torture but rather to legitimate it, as well as the State and the court itself in the eyes of the world. Finally, how can we ignore the court's years-long delay in condemning what had always been, in its now unanimous opinion, an illegal practice? In the words of one critic “Why has something that was legal up until a few days ago suddenly become illegal?” (Israel Harel). Even one of the court's strongest supporters (Ze'ev Segal) called the decision “an act of repentance”. Journalist Orit Shohat put it quite eloquently; “Those very same judges who have just ruled that the torture methods must be stopped immediately heard horror stories year after year in the courtroom but, up until recently, did not seem to regard the issue as terribly urgent… How do they justify to themselves the enormous amount of time it took before they decided to put an end to something that they regarded as clearly illegal?” So a balance sheet of the period from Justice Landau to the present would show judicial legitimation of routine torture for about twelve years, from which would be subtracted only the period of time it takes to put a new law in place. Even on the best-case scenario (the failure to enact a new law or, perhaps, some future constitutional ruling with teeth) it is going to take a long time before the damage already done by the court is ever erased. See Ha'aretz (Eng. ed.), September 8-10, 1999, for the quotes in this footnote.

169 Dworkin, Ronald, Taking Rights Seriously (Duckworth, 1977) 8592.

170 Mandel, supra n. 165.

171 Mandel, supra n. 3, at 54.

172 Ha'aretz (Eng. ed.), April 12, 1998, at 2. Arabs constitute 18% of the citizens of Israel and 4.5% of all its judges. There are fourteen judges on the Supreme Court.

173 Ha'aretz (Eng. ed.), March 22, 1998, at 3.

174 Sheleg, Yair, “The High Court and a constitution”, Ha'aretz (Eng. ed.), June 14, 1998, at 6.

175 Mandel, supra n. 3, at xi.

176 Mandel, supra n. 1.

177 Pashukanis, Evgeny B., Law and Marxism: A General Theory (Pluto Press, 1989) 149, n. 21.

178 United Bank Mizrahi, supra n. 12, at 133-134.

179 Cohen, Gerald, “Capitalism, Freedom and the Proletariat”, in Ryan, Alan, ed., The Idea of Freedom: Essays in Honour of Isaiah Berlin (Oxford University Press, 1979).

180 United Mizrahi Bank, supra n. 12, at 155, 159.

181 Association of Investment Management in Israel, supra n. 14.

182 Arian, supra n. 31, at 70-71.

183 Goldman, Shachar, “The Israeli Supreme Court as a social change agent, its actual role and possible implications on democratic values: the case of equality between women and men” (unpublished paper in the possession of the author), citing Women's Lobby in Israel, Women in Israel: Information and Data (Jerusalem, 1997) 24; The Comptroller of State of Israel, An Account on Nomination of Directors to Governmental Companies (Jerusalem, 1998) 25; and State Treasury, An Annual Account of Revenues (Jerusalem, 1997).

184 Meatrael v. Rabin (1992) supra n. 7.

185 Sternhell, Ze'ev, “Clinging to the rabbi's coattails”, Ha'aretz (Eng. ed.), April 10, 1998, at 7.

186 Mandel, supra n. 3, at 313-327.

* Professor, Osgoode Hall Law School, York University, Toronto; Visiting Professor, Faculty of Law, The Hebrew University of Jerusalem.

The author wishes to thank the Halbert Centre for Canadian Studies of the Hebrew University and the Faculty of Law for their hospitality and support during the writing of this paper. He also wants to thank the students in his course “Comparative Constitutional Law” for a lively semester and for their insights into Israeli constitutionalism. Finally, the author would like to thank Karen Golden Mandel for her translation of crucial Hebrew material and for her help with many of the ideas in the paper.

This paper is part of a larger project generously supported by the Social Sciences and Humanities Research Council of Canada (Grant No. 410-94-1441). An earlier version was delivered June 30, 1998 at the International Colloquium “Democracy and the Courts” sponsored jointly by the Faculty of Law of the Hebrew University of Jerusalem, the Israel Law Review and the Israel Association for Canadian Studies. The revised version has benefitted from the very helpful comments made at that time by David Kretzmer and from the thoughtful advice of Dan Avnon, Ruth Gavison and Ran Hirschl.

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Israel Law Review
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