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The Supreme Court, Jewishness, and Democracy: Suggestions for a More Effective Balance

Filed under: Israel
Publication: Jewish Political Studies Review

Jewish Political Studies Review

Jewish Political Studies Review 21:1-2 (Spring 2009)

Under the leadership of Aharon Barak, the Israeli Supreme Court experienced a “constitutional revolution,” giving it the right to judge whether various public decisions respect the “Jewish and democratic values of the state.” This paper emphasizes that the Supreme Court is ill equipped to judge according to Jewish values, without reference to mishpat ivri, Jewish law. It recommends that a minimum knowledge of mishpat ivri should be a prerequisite for future nominations to the Court. Democratic values are those of a liberal parliamentary democracy. Many judgments using the democratic track deal with very political and divisive issues – such as decisions concerning elections – without a strictly legal basis to guide them. France has a Constitutional Court, created, organized, and nominated on political grounds, that evolved into a tribunal whose decisions on political matters are respected by the whole political body. This paper suggests using the French precedent but with elements recognizing Israel’s specificity, to create an Israeli Constitutional Court to deal with political topics.

Classical political thought is inspired by the well known Montesquieu division of power between the legislative, executive, and judiciary. As useful as this distinction has been, it has never been completely clear cut, and political developments have tended to blur the distribution between the three. In most states, the executive has increased its power; more and more laws are presented to Parliament by the government instead of emanating from the legislative. Public Administration, part of the executive, has a growing power in the implementation of laws, and even in their formulation. Judiciary, as independent as it is supposed to be, is chosen and paid. The choice, selection, and nomination may be only in the hands of the executive or shared between executive and legislative, but depends on these branches nonetheless. The laws that judges apply are not written by them, but by politicians. Their living conditions (career, salaries, and pensions) are decided by politicians.

A presentation of each of the three powers as autonomous, if not independent, is not supported by the facts. In contemporary states, the ascendancy of two at the detriment of the third can be witnessed. On the one hand, the executive-president, prime minister, and government, including Public Administration-has gained more and more power and, specifically in the case of majority governments, is able to impose its will on members of Parliament. On the other hand, increasing numbers of citizens dissatisfied by a policy, both as individuals and members of groups, turn to tribunals. This in turn gives to the judiciary an influence greater than that anticipated by traditional political scientists.

Modern democracies have a Supreme Court at the apex of the juridical hierarchy which has the last word on juridical issues. In Israel, the Supreme Court is the ultimate decision-making tribunal. It is above all tribunals, regular (district tribunals) or specialized (youth, transport, army, labour, municipal affairs). When the case involves the state, public organizations, local authorities, and sometimes religious tribunals, the Supreme Court, with the same members, becomes the High Court of Justice.

The Supreme Court, when acting as the High Court of Justice, is routinely criticized mainly by people who disagree with its judgments. More rarely, it is criticized by those who disagree with the process, which is deemed to be too estranged from the democratic decision-making process (for example, law professor Ruth Gavison[1]). The main target of the criticism is the former president of the Court, Aharon Barak, and his legacy, for having changed the role of the Supreme Court. The debate, if it can be called that, is more often than not a series of ad hominem attacks from both sides, the judicial and the political. It is inspired by a vision in which justice and politics constitute two totally separate fields with, at best, agreed upon boundaries or, at worst, overlap and competition. Justice does not exist in a vacuum; it has links with thepolis, the city, and with politics. This article will evaluate whether the Supreme Court succeeds in adequating its judgments with the self-professed values of the state as written in its Basic Laws. A foreign successful example of a different type of relations between justice and politics will be analyzed. Finally some suggestions for enhancing the system will be presented.

As the High Court of Justice, the Supreme Court plays the role of a Constitutional Court, even if Israel has no constitution. Basic Laws, with their supra-legislative authority, constitute a quasi-constitution. Many of the Basic Laws cover the usual themes of constitutions. Among them are Government (1968), President of the State (1974), Army (1976), State Economy (1975), Jerusalem (1980), Justice (1984), and Auditor General (1988). Two Basic Laws have changed the judicial and political landscapes: Freedom of Occupation and Human Dignity and Freedom (both 1992). These two laws not only protect basic human rights but have a common preamble on the sanctity of the human being: they emphasize in their first articles that “the values of the State of Israel are those of a Jewish and democratic State.”

These two Basic Laws have been used by Chief Justice Aharon Barak for what he has himself called a “constitutional revolution.”[2] This revolution has five aspects: 1. revolutionary change at the normative level; 2. internalization of the constitutional revolution by the executive; 3. respect for it from the legislative; 4. a change in the public discourse; and 5. a significant influence on courts, including the Supreme Court.[3] According to Barak’s interpretation, everything is justiciable; there is no decision by any public body about any topic that does not fall under the realm of the judiciary, including “Jewishness,” Knesset laws, and government decisions.[4] The result of this revolution is to give the Supreme Court the possibility of creating laws-“judicial legislation.”[5] It is Barak’s belief that a judge should “protect the community against populism”[6] and formal democracy should give way to real democracy based on human rights. In order to do so, criteria to guide the judge are “rationality, objectivity, respect of tradition and humility”(!). If these criteria do not provide an answer, the judge “has no other choice but to rely on his subjective belief.”[7]

Israel has an activist Supreme Court, especially when sitting as the High Court of Justice. It views its role as an obligation to protect the quasi-Constitution and to interpret it up to the point of “judicial legislation,” as has become its wont. In doing so, it must follow the Jewish and democratic values of Israel. The questions which arise from this include whether the Supreme Court is equipped to answer such a heavy load and what suggestions may be offered to make the system work in a more Jewish and democratic manner, while allowing the court to maintain its efficiency.

It is worth repeating that the two Basic Laws of 1992, those invoked by Barak for his “revolution,” share a common first article: “Values of the State of Israel are those of a Jewish and democratic State.” The formulation is quite strange: the state is not considered as a tool of society and its members, who do have values, but the state is, in itself, viewed as a source of values.[8] Such an approach could be expected from the religious Zionists who see in Israel “the beginning of Redemption,”[9] attributing to the State an eschatological role. That the Knesset, whose majority is secular, would vote for Basic Laws giving specific attributes to Israel, both Jewish and democratic, shows the ambivalence of the legislator. Israel is exceptional in its Jewish character, and at the same time placed in the same league as many other states by its attachment to democracy.

Neither “Jewish” nor “democratic” is defined in the Basic Laws. Democracy is relatively unproblematic. Most jurists, politicians, and citizens would agree on the definition of democracy as liberal democracy with its fundamental rights, which include the right to freedom of conscience, opinion, religion, press, occupation, establishment, and the election of political leaders by universal vote.[10] Democratic jurisprudence encompasses texts such as Habeas CorpusDéclaration des droits de l’homme et du citoyen, and the Universal Declaration of Human Rights. Even without a definition, the term “democratic” is not a source of contention but there is a broad consensus on its meaning.

Jewish Values

The term “Jewish” however is more problematic. What are Jewish values: religious, social, cultural, or political? If they are foremost religious, should they follow orthodoxy, conservatism, or reform? The first of these alone can be broken down further into Neo-Orthodoxy, Religious Zionism, and Ultra-Orthodoxy (the last with its own divisions into Lithuanians and Hasidim). To define Jewish as the role of halacha, Jewish law, confines the problem but does not solve it. The recent dispute between state-recognized Orthodox bodies on conversions is an indication of how difficult it is to decide what constitutes a Jewish religious value. If we prefer the social definition, what is the Jewish social ethic: the one with its emphasis on property rights, very close to capitalism, or the one with emphasis on workers’ rights, closer to socialism? Cultural Jewishness could be linked to the Hebrew language, yet there are other Jewish languages (such as for example Ladino and Yiddish); thus the question arises as to whether to insist on an Israeli or global Jewish culture. Political Jewishness in Israel is often considered to be synonymous with Zionism but, here again, a question arises: which Zionism? Is it the leftist definition, close to socialism, or the rightist one, close to liberalism? This list of questions could continue ad infinitum. What is clear is that the “Jewish” values of the state do not refer to a defined set of values and, because nature abhors a vacuum, it is up to the judges of the Supreme Court to decide the meaning of this term.

When dealing with “Jewishness” and democracy, one clearly understood, the other rather vague, the balance will tip toward democracy. When the Supreme Court has to prioritize the two values, it will choose democracy because it is logical-it is better to use a familiar jurisprudence than an unfamiliar one-and because it conforms to the judges’ values. As stated by Dan Avnon, Jewish and democratic has become “Jewish only if democratic.”[11]

An interpretation of what constitutes Jewish values is “Israel’s heritage.” According to E. Mazza, “when the court, faced with a legal question, finds no answer in statute, case law, or by analogy, it shall decide the question in the light of the principles of Israel’s heritage, freedom, justice, equity, and peace.”[12] So defined, Israel’s heritage is so general it could be applied to most democratic states. The Jewish or Israeli content is so tenuous that it cannot offer any Jewish input in the judicial decision-making process.

The absence of a working definition of Jewish values has two consequences. First, it marginalizes the Jewish aspect up to the point of irrelevance. Second, it sometimes creates two parallel discourses, one secular democratic and one Jewish religious, without much common ground between the two.

Marginalization is obvious in the Judgment of 9 October 2003 in The Movement for Quality Government in Israel v. Prime Minister Ariel Sharon. This case dealt with the latter’s nomination of Tzahi Hanegbi as Minister for Public Security. No less than seven judges sat on the bench in this case: Or, Mazza, Cheshin, Dorner, Türkel, Beinish, and Rivlin. This large number of judges is an indication of the importance given to this case by the High Court, which helped to create a trend for future similar cases. From the 120 quotes and references made in the case, ninety were from Supreme Court cases, three from U.S. cases, four from Israeli books (two written by Barak and one each by Zamir and Rubinstein), nine from Israeli articles, one from a foreign book, and thirteen from “Jewish law sources,” including Exodus (1), the Babylonian Talmud (3), Maimonides (3), and the code of Jewish law the Shulhan Arukh (2). These thirteen references are not only a tiny component of the corpus used by the court but, contrary to the other references, they are of more intellectual interest-to give a Jewish slant to the decision-than offering a normative contribution to the decision on the issue.

Moshe Neiman et al. v. Chairman of the Central Election Committee for the Eleventh Knesset[13] of 15 May 1988 provides an example of two parallel discourses. The issue was to decide if the Central Election Committee had been justified to ban Kach, the political party led by Rabbi Meir Kahana. One of the reasons for the ban was that Kach’s “goals and objectives negate the fundamentals of the democratic regime prevailing in the country.” Five judges were on the bench: Shamgar, Ben-Porat, Elon, Barak, and Bejski. Most of them wrote about political parties, their role in a democracy, their rights, the danger some could cause to democracy, and other matters dealing exclusively with the democratic aspect of the case, without reference to Jewish sources, values, or heritage.

It was up to Elon to write a long and documented text based exclusively on Jewish sources. Elon announced that he was not interested in repeating the arguments of his colleagues regarding freedom of expression. As the Foundation Law (1980) quotes the prophets of Israel, Elon chose to write on what the heritage of Israel says about freedom of opinion and expression, and the legitimacy of the Kach platform: “the most severe and serious aspect of the Kach platform is that this list and its leaders seek support in the Torah and the halacha.”[14] This sentence summarizes the dilemma faced by the Supreme Court. Most justices condemned Kach on strictly democratic arguments with no reference to Jewish values. The author of the Jewish argument based his judgment on halacha only, because that was his field of expertise in the case. Both discourses, the democratic and the Jewish, follow their own logic, but they refer to two sets of different values. In this particular case both arguments led to the same conclusion. What if they do not?

How Can the Supreme Court Deal with Jewish Values?

If Jewish values are not defined as what judges estimate to be indeed Jewish values, a yardstick is needed to establish a basis for a tribunal to incorporate Jewish values in its deliberation and judgment. As has been demonstrated, various interpretations among others-religious, political, social, and cultural-are available, none of which is more legitimate than another, and none of which constitutes a guideline for a jurist. Supreme Courts in democratic states base their decisions on a mixture of fundamental rights, constitutional principles, and jurisprudence. Jewish sources from the Torah to the Talmud, from Shulhan Arukh to responsa, comprise a large corpus of what constitute rights in a Jewish perspective. Some aspects are permanent, if not eternal, such as human dignity, while some are evolving, such as women’s rights. The question is not so much the great principles that most people can agree on as their implementation, where divergences are to be expected. The role of jurisprudence is not to offer a solution but to help find a path toward a decision. Some judicial systems have a more “theoretical” approach, such as France, and others are more based on precedents, such as the United Kingdom. Both, however, have one point in common: they refer to similar cases in order to formulate a decision.

The closest notion to Jewish jurisprudence is mishpat ivri, Jewish Law. It is not limited to “religious” matters, rituals, religious procedures, and the like, but encompasses every aspect of law in society: civil, criminal, commercial, and familial. Based on Torah and Talmud, mishpat ivri has a corpus of responsa, legal decisions, amounting to over 350,000 cases. Some of these are related to situations in ancient times, while others deal with very modern situations (including the teachers’ right to strike, transplants, and many others).[15]

Without referring to mishpat ivri, the Supreme Court is unable to judge according to Jewish values or Jewish heritage. The present situation is that, traditionally, one seat on the Supreme Court is reserved for a judge from the religious sector. He is expected to be able to express Jewish values in legal terms. Indeed, the various incumbents have been successful in doing so. The other judges, and more specifically the father of the Legal Revolution, have no knowledge of mishpat ivri. A brief survey of the curricula of Israeli Law Faculties shows that there is no required course in mishpat ivri, and therefore most students do not take one. The inevitable result is that jurists (lawyers, law professors, and judges) ignore the basic legal elements of Jewish values. Those who become Supreme Court judges, with the exception of the “religious” one, are therefore bereft of any way to judge according to Jewish heritage.

One suggestion to be made is that from now on a minimum knowledge of mishpat ivri should be one of the requirements for nomination to the Supreme Court. Acting lawyers, judges, and academics, and potential members of the Supreme Court, should have basic knowledge of mishpat ivri. The goal is not to restrict the Supreme Court seats to “religious” candidates, but to “competent” ones, according to the first article of the two 1992 Basic Laws that emphasize Jewish and democratic valuesMishpat ivri is one tool to determine and apply Jewish values; incorporated with democratic values, it should lead to a judgment. It is not a step toward a halachic, religious decision. Secular Jews and non-Jews would not be discriminated against; mishpat ivri is not a set of beliefs but a corpus of cases helping the judge to make the proper decision within a Jewish and democratic judicial system.

Democratic Values

For every Knesset election, a Central Election Committee (CEC), chaired by a former Supreme Court judge, is selected. Its goal is to supervise the electoral process and its respect of the law. As can be anticipated in a highly politicized atmosphere and a system where the Supreme Court plays a central role, when a political party or any member of society is not satisfied with a CEC decision, it turns to the Supreme Court.

The Supreme Court, when deciding whether a political party should be barred from the electoral process, and which kind of publicity or propaganda is legitimate, relies not so much on law as on what judges consider the law to be, often using political arguments rather than legal-constitutional ones.

A rewriting of the law occurred on 8 January 2003. The CEC had forbidden the use of an Arabic jingle to the tune of the National Anthem by the Herut party. Radio does not fall into the realm of CEC, only television. The Supreme Court wrote than “the fact that the statute did not expressly grant authority to the chairman regarding radio broadcasts was a lacuna that should be filled by judicial interpretation” and that, therefore, the Supreme Court “has jurisdiction on the matter.”[16]

The question arose as to whether the CEC had been right in forbidding parts of the Herut campaign. In particular, these included the quoted jingle, the presentation of the inevitable destruction of Israel and the expulsion of Jews from Jaffa and Ramle, and the Israeli flag being transformed into a Palestinian one. It is questionable whether this kind of electoral publicity that plays with emotions is legitimate. The Supreme Court used the argument of Jewish values, freedom, justice, equity, and peace in making its decision.[17] The links between these and the decision taken by the Supreme Court are not obvious. Two judges, E. Mazza and T. Strassberg-Cohen, supported the CEC decision while Barak dissented. Two conflicting sentences show how politically based their interpretations were. For Barak, “Herut holds the sanctity of the anthem and flag especially dear” and therefore could not be condemned for profaning them. For Strassberg-Cohen, “using the anthem and flag crosses the bounds of legitimacy.” Both the majority and the minority presented political arguments.

Another case concerning the same issue of what constitutes legitimate publicity or election propaganda was judged two weeks later.[18] It was presented by the Association for Civil Rights in Israel on behalf of two Arab political parties, Raam-United Arab List and Balad-National Democratic Assembly. It demanded that a CEC decision forbidding parts of a TV publicity campaign be overthrown. It should be noted that the plaintiffs were not the two political parties but an interest group, raising the question of why the two parties did not complain directly. It is possible that they did not want to recognize the validity of the Supreme Court by using the tools at their disposal. The CEC had “disqualified portions of the election propaganda broadcasts of Raam-United Arab List and Balad-National Democratic Assembly, because they included pictures of the Palestinian flag.” The panel of three judges[19] viewed the broadcasts and “meticulously examined their contents and the details of the segments that were disqualified.” These included pictures of Bedouins treated unjustly by Israel, a Palestinian flag, and young people making the victory sign with their hands. Regarding the Palestinian flag, the court stated: “as it is the flag of the Palestinian Authority and the Palestine Liberation Organization, it may possibly identified with hostile groups involved in terrorist activities against Israeli civilians” but to maintain the CEC decision, “it must have the potential to cause substantial, deep and severe injury to the feelings of the members of the Israeli population, especially those who have been harmed by terrorist activities.” The judges, after viewing the broadcast, held “that no such injury arises from their contents,” that Knesset Member Bishara’s speech with the flag “lacks aggressive or hostile words,” and that the other shots of the flag and victory signs were “not accompanied by hostile words.” They therefore decided to grant the petition, meaning to reinstate the full political broadcasts.

This judgement raises a few questions. The use of the Palestinian flag is innocuous but, in the Herut case, the Israeli flag becoming a Palestinian one “exceeds appropriate levels of tolerance that could cause severe injury and even lead to provocation and incitement.” In these broadcasts, Bedouins were presented not as Israeli citizens but as Palestinians under the Palestinian flag. The flag and the victory signs (victory against whom?), as long as they are not accompanied by hostile words, were considered legitimate. Yet in these broadcasts candidates wishing to sit in the Israeli Legislature presented the solution to the problems faced by their potential voters not as an Israeli issue but as needing a Palestinian victory.

Regardless of how this publicity is analyzed, it seems that the Supreme Court made a political statement based on political arguments rather than on legal constitutional ones.

A Political Constitutional Court: The French Case

Is this politicization of the Supreme Court unavoidable? Amongst the democratic systems, France offers an original answer. For many reasons-historical, societal, and traditional amongst them-France has three upper judicial bodies, without a hierarchy between them.[20] The Cour de Cassation is the highest tribunal that can revise decisions by lower tribunals. It plays a role similar to most Supreme Courts in democratic states. The Conseil d’État is the “supreme court for administrative justice.”[21] With its corpus of three hundred state councillors, the Conseil d’État is a typically French supreme administrative body; it cannot be understood outside the confines of France and cannot be replicated.  More interesting from an Israeli perspective is the Conseil Constitutionnel or Constitutional Council (C.C.), which is intended to assure order in the French political sphere.

Created in 1958, the C.C.’s goal was to prevent the legislature from limiting the prerogatives of the government, as had been the case under the Fourth Republic (1946-1958). When a law is passed by the National Assembly, but before it becomes imperative, four authorities may ask the C.C. to give its judgment on the law and the C.C. can declare the law, or some of its articles, non-constitutional. The four authorities are the president of the republic, the prime minister, the Speaker of the National Assembly and the president of the Senate. The original concept behind this was to give these four leaders, and only them, the opportunity to present their case to the C.C. in order to shift the balance of power toward the executive, mostly the president (at that time Charles de Gaulle), and his prime minister.

The C.C. is composed of nine members, nominated for a non-renewable mandate of nine years by the president, the Speaker of the National Assembly and the president of the Senate; each one nominates three persons. It should be noted that the nine are chosen “without qualification about age or profession, giving the nominators the possibility, if they so wish, to chose judges without a legal background.”[22] The fact that non-judges can become members of the C.C. emphasizes the politically motivated nominating process. As the first president of the Republic and the speaker belonged to the same party, the result was a very Gaullist institution, mostly interested in preserving the prerogatives of a strong executive and protecting it against the attempts by Parliament to limit the role of the executive by checking government decisions.

As happens frequently, what was intended to defend the executive against the legislative in reality played a different role. The C.C. became more and more involved in protecting fundamental rights against eventual executive and legislative decisions and more open to the political process. In 1971, the court created the concept of constitutionality blocks (bloc de constitutionnalité), presented as “fundamental principles recognized by the laws of the Republic” (Preamble to the Fifth Republic Constitution, including references to the Déclaration des Droits de l’Homme et du Citoyen). This decision, not seriously challenged by the executive, transformed the role of the C.C. “from regulatory to normative.”[23] In 1974, the Constitution was amended and to the four authorities entitled to demand an intervention of the court were added either sixty members of the National Assembly or sixty senators. This gave a de jure right to the opposition to appeal to the C.C., giving back some power to the legislative. These two developments led to an explosion of cases heard by the court, from nine in the period 1959-1974 to two hundred and sixty in the period 1975-2000.[24]

This increased load is dealt with in a very peculiar system. Deliberations need a quorum of seven members. In the case of a tie, the voice of the president of the C.C. is preponderant. The judgment is a united one, “without the possibility of dissenting opinions.”[25] Debates and votes are neither public nor available.

According to its president, the role of the C.C. is twofold. It is firstly the “regulator of public powers” (régulateur des pouvoirs publics), including presidential elections, parliamentary elections, referenda, and “building a system to protect rights and freedoms”; and secondly the safeguard of “judicial security” (sécurité juridique), meaning stability, clarity, and non-retroactivity of legislative regulations (règles législatives).

From a court whose mandate was to enhance the executive at the expense of the legislative, the C.C. has become a promoter of human rights. In that transformation, two elements are crucial. The C.C. does not hide the fact that it is heavily involved in the political process. Its nine members, without forgetting the former presidents of the republic who are automatically part of the court, are chosen on political grounds and do not have to be “confirmed” jurists but people with hands on knowledge of political governance. The C.C., because it is beyond any control, its members secure for the entire length of their nine year mandate, and because it does not have to air its possible dissensions, is ready to make unpopular decisions or decisions to the detriment of the executive, based on the constitutionality blocks and fundamental rights, a far cry from what had been intended.

An example of a decision combining a meticulous respect for the letter of the French Constitution with openness on its implementation concerns Corsica. After many years of struggle in the island of Corsica, including violence, bombs, killing, and terrorism, the French government presented what was called theJoxe Statute. For the first time, the French Republic recognized the existence of the Corsican people. Article 1[26] should be quoted in its entirety: “The French Republic guarantees to the historical and living cultural community that constitutes the Corsican people, component of the French people [my emphasis], its rights to preserve its cultural identity and to defend its specific economic and social rights. These rights, linked to insularity, apply in the respect of national unity [my emphasis], in the framework of the Constitution, laws of the Republic and the present status.” This formulation reflects the ambiguity of the government decision: recognition of the existence of a Corsican people was deemed a precondition to restoring quiet on the island, but should take place within the confines of the French people.

The judgment of the C.C. was swift.[27] It refuted the notion of a Corsican people in the name of the indivisibility of the French people and Republic, a blow to the government’s prestige. Article 1 was struck down. The same decision confirmed the legitimacy to introduce specific public administration to deal with specific situations, Corsica being such a situation. This was a bold move in a country where the prevalent view is that there is only one law for the whole of the French Republic, without exception. The C.C., in one decision, both condemned the government for violating a basic norm of the Constitution and a traditional position, that is, the indivisibility of the French people, and at the same time allowed experiments in public governance, an innovative concept in a highly centralized political system. Ten years later, the C.C. opposed Corsican legislative autonomy because it was deemed beyond the pale of innovation and a breach of the Constitution.[28] Specific public institutions were acceptable but a separate parliamentary system was not. The Corsica case shows an official, politically chosen court behaving in a balanced way. It was very strict in the realm of constitutional principles but more lenient in the administrative sphere.

The C.C., from a defender of the executive, has become a promoter of human rights and from a body open only to four political leaders has become an address for the opposition. The transformation both from within, how the judges perceive their role, and from outside, an amendment to the Constitution, is a good illustration of the law of unintended consequences.

A few points are of particular interest. The C.C. is aware of the time factor. It issues its decisions in a very short period of time-one month in the Corsica case. Its decisions are not marred in controversy. As the deliberations of the judges are confidential, there is no minority opinion, and the decision is final. What is lost in transparency is gained in efficiency. Political debate can be in full swing, but the C.C. is above the parties, not part of the public discourse, and, in a political system as contentious as the French one, its decisions are not only respected (state authorities have no choice) but are beyond public criticism. The fact that the nine judges are nominated by politicians, far from making them tools of the powers that be, gives them the necessary credibility to void, if so they judge, government laws. The nine, not being constrained to what is considered to be a strictly juridical approach, can take into account political realities and therefore encourage an increased openness of public institutions to French society.

The originality of the French Constitutional Court relies on its two main objectives: control of constitutionality and control of elections. The constitutionality control has an abstract, facultative aspect for regular laws and international treaties (engagement) and a much more important mandatory aspect for “organic laws” (quite similar to basic laws), and National Assembly and Senate regulations. The control of the electoral process both for elections and referenda constitutes the second main objective. A third one, to advise the president of the Republic at his own request, is beyond the scope of this article.[29] France presents a case of a country in which two major components of political life, respect of the Constitution and respect of democratic forms of elections, are under the jurisdiction of a court, politically nominated and politically motivated. Far from polarizing public debate on the role of the judiciary in a democracy, a debate that constantly returns in many democracies, the very political nature of the C.C., and the way its nine members have behaved since 1958, have created a system where one court (the Cour de Cassation, equivalent to a Supreme Court) is at the apex of tribunals and another one, totally autonomous, is in charge of political decisions.

Without going to such lengths, other democracies follow a similar pattern of a politically nominated Constitutional Court. In Germany, its sixteen members are chosen half by the Bundestag, and half by the Bundesrat. In Italy its fifteen members are chosen one third by the President of the Republic, one third by the Parliament, and one third by the top tribunals. In the U.S., where the Supreme Court is also a Constitutional Court, the nine judges are nominated by the president and confirmed by the Senate.

The notion that only judges, pure products of the judicial system, chosen without, or with minimal, political input can he trusted to defend constitutionality and human rights is a truism, dominant in Israel, not validated elsewhere.


The actual role of the Supreme Court in Israel’s life has for many years been a divisive issue. Judgments according to the values of Israel as Jewish and democratic cannot be made without a basic knowledge of and training in mishpat ivri. To continue with the actual system is increasingly problematic: judges are de facto chosen by the president of the Supreme Court and not by the executive; the Court is more and more engaged in political, and therefore controversial, issues; it lacks a clear guideline as to what constitutes Jewish values; and it recognizes the necessity to rely on the belief of judges. All these elements do not help the Supreme Court to be above criticism. We suggest two changes, the first one within the Court, the second outside. The first one will be to give the expression “Jewish values” its true meaning and therefore require, from now on, a minimum knowledge of mishpat ivri as a prerequisite to become a member of the Supreme Court.

Democracy does not mean that the Supreme Court, even when sitting as the High Court of Justice, is above the law, but that the Constitution, in Israel the Basic Laws, and protection of rights and freedoms as determined in major texts (such as the International Declaration of Human Rights), are respected by the legislative and the executive. In order to have a Supreme Court more in tune with the political theoretical approach and political practical feasibility, we suggest, as a second change, the creation of a Constitutional Court. It would be composed of seven members, nominated for a non-renewable term of seven years. They would be chosen according to the following formula: two by the president, one by the former president, two by the Speaker of Knesset, one by the previous one, and one by the Speaker before the last one. This is to limit the chances, as was the case in France in 1958, of having both the president and the Speaker belonging to the same party. By going back one or two elections, to people still active in politics or retired, there is an increased probability that different political views would have a say in the nominating process. This new Constitutional Court would be entrusted with jurisdiction over elections, Knesset laws, and government regulations at the demand of the president, the prime minister, the Speaker of the Knesset or twenty members of Knesset. The Constitutional Court would clearly be in charge of political matters and let the Supreme Court concentrate on all other judicial issues.

These two modifications, even if they will be opposed by the tenants of the status quo, would not only respect the Basic Laws and their reference to “Jewish and democratic” values, but would make the public system work more smoothly by establishing a distinction between two judicial bodies and, hopefully, help the word “political” become, once again, a clean word in Israel.


*     *     * 


[1]. Ruth Gavison, Tnaim Lesigsuga shel Medinat Israel, Be’ein Hazon Yipare Am: Matarat al Lelsrael Unigzerotea [Conditions for the Prospects of the State of Israel, When There Is No Vision, the People Cast off Restraint: A Meta-purpose for Israel and Its Implications] (Haifa: Technion, August 2007). [Hebrew]

[2]. A. Barak, “Human Rights in Israel,” Israel Law Review 39, no. 2 (2006): 18-19.

[3]. Ibid., 19-21.

[4]. “The Supreme Court has been willing in recent years, to hear and determine a vast range of social and political issues and to closely scrutinize almost all acts of virtually every public institution. It has substantially narrowed the scope of non-justiciable matters, demonstrating its willingness to examine agreements between political parties and to review parliamentary proceedings; it allows every person, without any personal interest, to bring to the Court matters of public concern pertaining to the rule of law; and it requires all public authorities to act fairly, avoiding a conflict of interest, personal or institutional, reasonably and proportionally.” In Itzhak Zamir and Allen Zysblat (eds.), Foreword by A. Barak, Public Law in Israel (Oxford: Oxford University Press, 1996), VII-VIII.

[5]. A. Barak, “The Role of the Supreme Court in a Democracy,” Israel Law Review 3, no. 1 (1999): 1-12.

[6]. Ibid., 4.

[7]. Ibid., 11.

[8]. See Dan Avnon, “The Israeli Basic Laws (Potentially) Fatal Flaws,” Israel Law Review 32, no. 4 (1998): 535-566. In his article, Avnon contends that only individuals and societies have values and that the state is just a tool for governance. A state should limit itself to administrative structures and not become an entity with its own values.

[9]. Prayer for the State. Written by the Chief Rabbinate of Israel immediately after the establishment of the State. Printed in most prayer books, such as Rinat Yisrael (Jerusalem, 1977) and at

[10]. Deviations of democracy such as “popular” democracies are rejected.

[11]. Dan Avnon, “The Israeli Basic Laws (Potentially) Fatal Flaws,” Israel Law Review 32, no. 4 (1998): 553.

[12]. High Court of Justice 212-03, 8 January 2003, point 11.

[13]. EA2/84.

[14]. EA2/84, paragraph 10.

[15]. Menachem Elon, Jewish Law; History, Sources, Principles, Bernard Auerbach and Melvin J. Sykes, trans. (Philadelphia: Jewish Publication Society, 1994), four volumes.

[16]. HCJ 212-03, 8 January 2003, HerutThe National Jewish Movement v. Justice M. Cheshin, Chairman of the Central Election Committee for the Sixteenth Knesset. [Hebrew]

[17]. Ibid., paragraph 11.

[18]. HCJ 651-03, 21 January 2003, Association for Civil Rights in Israel v. Chairman of the Central Election Committee for the Sixteenth Knesset. [Hebrew]

[19]. T. Strassberg-Cohen, I. Englard, A. Procaccia.

[20]. Yves Guéna, Président du Conseil Constitutionnel, “La justice constitutionnelle en France: bilan et perspectives,” paper given at a conference in Moscow, 31 October-4 November 2001, [French] All translations from French are the author’s own.

[21]. Conseil d’État, Wikipedia.`État.


[23]. Jack Hayward, The One and Indivisible French Republic (London: Weidenfeld and Nicolson, 1973), 121.

[24]. Guéna, supra note 19.

[25]. Ibid.

[26]. Loi portant sur la collectivité territoriale de Corse, 4 April 1991. [French]

[27]. Décision de la Cour Constitutionnelle, 5 May 1991. [French]

[28]. Décision de la Cour Constitutionnelle, 2001-454DC, 1 January 2002. [French]

[29]. Maryvonne Bonnard, Michel Verpeaux (eds.), Le Conseil constitutionnel, Études de la Documentation françaiseLa Documentation française, 5246 (2007), 168.