Master's Thesis, 2004
60 Pages, Grade: 1,0
1 Constitutional Democracy and Courts
1.1 Democracy – Mere Rule of the People?
1.2 Rule of Law and Constitutions
1.3 Constitutional Courts
2 The ‘Revolution’: Israel as a Constitutional Democracy?
2.1 Israel before the ‘Revolution’
2.2 ‘Revolution’: A Drama in Two Laws
3 The ‘Constitutional Revolution’ – A Myth
3.1 Still: No Meaningful Protection of Human Rights
3.2 Still: No Written and Rigid Constitution
3.3 Implications for the Political System
4 Acceptance of the Myth
4.1 Responses from the Scholarly Debate
4.2 Responses from the Political Arena
4.2.1 Support for the ‘Revolution’
4.2.2 Opposition to the ‘Revolution’
5 The Role of the Court
5.1 Visual Prominence: Judicial Review and Litigation of Politics
5.2 Institutional Weakness
5.3 Effective Weakness: Rulings and Their Effects
5.4 The Court as Mediator of Values
5.5 Upholding the Mantra of Democracy
This dissertation discusses the role of the Israeli High Court of Justice within the political system of Israel after the enactment of two Basic Laws in 1992. The main thesis is that the power of the court has been much overestimated. In particular, the large assumptions connected to the ‘constitutional revolution’ that many saw in the enactment of the 1992 laws must be refuted. This paper argues that the alleged ‘revolution’ was a myth, and that fundamentally nothing much has changed. The political system largely remained untouched by the 1992 laws. This dissertation defines the role of the court as a mediator between particularistic and universal values rather than promoting universal human rights, or protecting minority rights. In fact, the role of the High Court must be regarded as stabilizing an essentially undemocratic system by legitimising government policies and by supporting a discourse that maintains the democratic façade of the system. The enactment of a constitution has not been promoted by Chief Justice Barak’s activism, and indeed has made the enactment of a constitution much less likely.
You can never finish a thesis alone. It takes a lot more than researching, structuring and writing – which is my own work.
For everything that goes beyond all this – criticism, support, friendly words, and just simply being around – I am indebted to many people. Especially I would like to thank – Paul Lalor, for his critical comments and suggestions, and especially for his warmth and support; Katharina Müller – for her critical comments and questions, even from the other side of the globe; my parents and sisters – who supported me in innumerable ways; Anjali – for always being around; Rolf Hollering – for his questions, and for being a friend; Sophie Bradford – for her indispensable help with the English language; Assaf, and Pamela, Sadiq, Amelie and Shirin – for making me feel at home during my time in Israel; and finally the Studienstiftung des deutschen Volkes – for generously sponsoring my studies here in London.
The power of the Israeli High Court of Justice has been much overestimated. Almost unanimously – by journalists, voters, politicians and scholars alike – the High Court has been viewed as a powerful actor. Its advocators claimed it could effectively check government policies in order to protect universal human rights and minority rights, while its critics held that it would allow the minority to tyrannise the majority. This widely acknowledged perception, however, cannot be upheld.
Central to my discussion will be an analysis of the far reaching assumptions of Chief Justice Aharon Barak and others who argue that in 1992 the Israeli state experienced a “constitutional revolution”. This ‘revolution’ has allegedly turned Israel into a “substantial” and “constitutional democracy”, thus fundamentally amending the power of the High Court, and indeed changing the entire social and political structures. I will therefore discuss the extent to which the Israeli High Court of Justice can be regarded as a constitutional court acting within a ‘constitutional democracy’.
In a first chapter, I will introduce the theoretical framework of a constitutional democracy. In this chapter, I will outline the conditions that constitute such a political framework that is based on the rule of law, and outline the role of a constitutional court within this framework.
In a second chapter, I will show that Barak’s conception of the alleged ‘constitutional revolution’ very much fitted the concept of a constitutional democracy, and I will outline the changes that Barak perceived to have occurred.
In a third chapter I will then show that the alleged changes did not occur, and that the political system of Israel after 1992 should largely be looked at in terms of continuity, rather than in terms of change, and certainly not in terms of ‘revolutionary’ change. I will thus argue that the ‘constitutional revolution’ must be regarded as a myth.
In a fourth chapter, I will then present the responses to his revolution, and will show that the scholarly debates, as well as the political debates, largely missed the point – namely, that the ‘constitutional revolution’ did not take place, and that the role and the power of the court have not changed.
In the fifth chapter of this dissertation, I shall present the implications of this myth, both for the political system and the court. I shall also redefine the role of the court, and I will argue that the court must be regarded as an essentially weak actor, and that consequently the role of the court is determined by its constant mediating between the particularistic values of the Zionist framework and the universalistic values obtained from its (self-) image as defender of democracy. In terms of its role within the political framework, Barak’s ‘revolution’ rhetoric must actually be considered counterproductive for the purpose of establishing a substantive constitutional democracy as it legitimises undemocratic government policies and enables the continuity of the mantra ‘the only democracy in the Middle East’.
I will conclude by summarising the findings of this dissertation briefly, and I shall discuss the possibilities for the future of the court within the political system of Israel.
In terms of democracy and democratisation, the last century (or probably rather its second half) appears to have been one of the most successful ones. Huntington finds that there has been a “Third Wave” of democratisation after 1974, “an important – probably the most important – global political development”. The Freedom House, self-appointed “clear voice for democracy and freedom around the world”, joins Huntington and proclaims a “dramatic expansion of democratic governance” in the 20th century, and quickly terms it the “Democratic Century”.
While one might acknowledge the progress towards democratic rule that many countries have experienced, one should be equally aware of the fact that the term democracy is also a tool for the legitimisation of potentially undemocratic policies. Today, virtually every country claims to be a democracy, though the regimes that label themselves democratic often differ significantly from each other. Or, as Bernhard Crick puts it when he describes “this most promiscuous word” as an Athenian deity, “she is everybody’s mistress, and yet somehow retains her magic even when a lover sees that her favours are being, in his light, illicitly shared by many another.”
To identify states that can be termed true democracies it is necessary to define the substance of democracy. Translating the Greek word democratia as ‘the rule of the people’, scholars of democratisation processes have often relied on an analysis of democracy merely in procedural terms. In particular, Dahl’s polyarchy (‘the imperfect reality of the ideal type democracy’) – later applied widely by Lijphart and others – rests centrally only on two concepts, contestation and participation. The belief in an open and essentially unrestricted “market of political ideas” is central to democratic theory. This focus on formal voting processes and information flows is based on the assumption that majority decisions inevitably or automatically lead to the most desirable situation for the polity, and ultimately for the individual.
Indeed, formal democratic procedures are the basis of any democracy. Today, however, a solely formal understanding of democracy will not stand. Especially for nascent or contested democracies in plurality societies, a merely procedural conception of democracy is doomed to be insufficient. The perfectly democratic rise of Hitler in 1933 is only one example showing that formal democracies cannot guarantee human rights, nor even the effective continuity of the formally democratic structure itself at all times. If we understand democracy not only as a system of government but essentially as a gesellschaftsform that enables a broad range of universal and inalienable civic freedoms, we must understand democracy solely in the sense of substantive democracy.
At the heart of any democracy must be the concept of the rule of law, based on a strong constitutional framework that effectively secures universal civic rights. While a few established democracies with a firm public consensus do not have a written constitution – like the United Kingdom or New Zealand – plurality states with weak social consensuses crucially require constitutions in order to establish democracy as a gesellschaftsform.
As Zubaida explains, successful democratisation processes crucially require “a legal and institutional framework which specifies and protects rights and procedures, which cannot be violated even by an elected government. Democracy can only make sense as part of a 'law state.'” Zubaida probably implies the concept of the material law state in his reference to the principle of the law state, as a formal binding alone of state power to the law is insufficient to preserve the law state. The principle of the formal law state must extend to the principle of the substantive law state. The binding of all state institutions to a superior, universal value system is thus essential for a law state. A democratic government “must be hedged in by substantive limits on what it can do, even when perfectly mirroring the popular will.”
This framework of the material law state transforms the formal democracy into a substantive democracy. Restriction of the majority will is essential to protect minorities, as democratic procedures alone cannot establish just outcomes at all times. As Shamgar explains, “protecting the minorities from the tyranny of the majority […] is a fundamental requirement of any true democracy”. The rule of law and the rule of the majority are thus not contradictory in a real sense, as the adherents of formal democracy theory would argue. They inherently belong together.
In the framework of the substantive democracy, written constitutions have to be regarded as the “prime pillar of the ‘rule of law’”. To make this pillar stable, entrenchment is a key criterion of constitutions, as by definition they fix the principles of interaction in a given social entity, which are valid ‘before and above’ all statute law. The core element of any constitution is thus a Bill of Rights, which fixes basic rights and the status of these rights within the respective legal system. A second condition for a firm rule of law is the existence of an independent body that decides whether the laws conform to the principles laid down in the constitution. Usually, constitutional courts fulfil this task.
Therefore, the viability of the rule of law – and thus the democratic regime – rests on a firm institutional structure. As Schoeller-Schletter states, “the best constitution is worthless as long as it is not put into practice”. Within this institutional structure, a strong, functioning, and independent constitutional court is essential to review the actions of the other institutions, and thus to uphold the rule of law and guarantee human rights. At the same time, strong and transparent constitutional courts can promote public trust in the political order, thereby promoting the basic concepts of democracy.
Growing awareness of the importance of constitutional structures and the central role of constitutional courts for any democratic framework can also be viewed in the efforts taken by international development organisations to export the concept of the constitutional court. While the constitution – and notably not primarily the constitutional court – is the “Guardian of Fundamental Rights”, a strong and independent court is needed to uphold the rule of law even in adverse situations.
Constitutional courts have often been criticised by adherents of formal democracy theory for wielding powers despite their ‘undemocratic’ (unelected) character. This criticism is also heard regularly in the political process by those who find themselves on the wrong side of a ruling.
Others have argued that Supreme Courts might not be able to fulfil a true counter-majoritarian function due to politically biased nomination processes and the need for support by public opinion. Decisions of the constitutional court were found to comply with majority opinion in virtually all cases. As Rose-Ackerman and Tsebelis note, even a veto by the Supreme Court should not automatically be regarded as opposition to government action or legislative procedure. Rather, it should be seen simply as a critique of the way the goal is reached – not of the goal itself – and a different course of action might be suggested. Mondak and Smithey went further and argued that, “the Supreme Court is an inherently weak institution [as it] depends on legislators for funding, the executive for enforcement, and the public for compliance.”
While this is a highly generalized statement, it nevertheless makes a very important point. The apparent strength of the constitutional court might be in many cases misleading. Judicial activism must not always be a sign of power. There are other ‘veto players’ in the political arena whoare not necessarily weaker. As Tsebelis notes, courts “will try to interpret the law according to their point of view (or perhaps interests) while eliminating the possibility that they will be overruled”. Thus the weaker the position of the court, the more importance the court will place on mediating the rule of law with the interests of other veto players. This highlights the importance of a firm and written constitution as a strong pillar of the rule of law. Flexible constitutions weaken the court and permit nearly unrestricted majority rule, which in plurality states may pose a serious threat to the protection of minorities, as held above.
It is clear that a firm and rigid constitution is crucial for a democratic system of government in plurality societies. It sets not only the essential framework for a rule of law by including inalienable and universal rights, it is also an important factor for strengthening the potentially weak role of the Supreme Court.
This chapter will introduce the case of the Israeli constitutional structure. I will show that Chief Justice Barak had realised the importance of a rigid and written constitution, and thus the existence of a material law state as an essential element of democracy.
Israel has long been regarded as one of the few suspicious odd-ones among the nations in not having a proper constitution. Within the country itself, this has caused long debates in the Knesset and beyond. Ben Gurion’s passionate opposition to a written constitution could not eradicate the demand for such a document. Even when the Harari compromise was reached in 1950 when Knesset members agreed to enact a constitution step-by-step – by legislating Basic Laws, which at a later point were supposed to be formed into one document – this discussion did not stop. Since the foundation of the state, numerous attempts were made by several members of parliament, Knesset Committees, and the Minister of Justice to enact at least a Bill of Rights as the core element of the constitution.
The reasons for the failure to install a constitution are various. Many argued that a constitution of the Jewish state could not be established while the majority of Jews were still living abroad. Others held that the first government coalition feared that the enactment of a constitution would undermine their power. Still others referred to pragmatic arguments. In a situation of economic crisis, massive immigration, and outside threat, there were more important issues that had to be tackled first. Moreover, Ben Gurion’s admiration for the British system prevented a strong push towards the enactment of a constitution. Finally, and probably crucially, was the religious opposition to the enactment of a secular constitution, as the orthodox maintained that there was no other supreme law than the Torah. Thus, the enactment of a formal and rigid constitution has been prevented by different interests profiting in various ways profited from the adherence of the status quo, and therefore maintaining an “agreement to disagree” on key issues.
Consequently, there was no constitutional court. Nevertheless, Israel’s Supreme Court in its function as High Court of Justice was perceived as a protector of human rights, which would introduce basic values to the political system. Barzilai writes that “in the absence of a written constitution, the Supreme Court was in fact responsible for the formation, articulation, promotion, and implementation of civil rights”, thus creating a quasi judge-made Bill of Rights.
In 1992 the change seemed to have come. In addition to the existing nine Basic Laws, the Knesset enacted two more Basic Laws, the Basic Law: Human Dignity, and the Basic Law: Freedom of Occupation, thereby integrating two laws that could be regarded as a rudimentary Bill of Rights. While the law on human dignity covered a broad range of rather unspecific rights, the latter fixed the right to follow one’s vocation. In a short article just after the passage of the laws, David Kretzmer used the term “mini-revolution” in order to describe what he regarded as a small and yet fundamental change.
Today’s Chief Justice of the Supreme Court, Aharon Barak, took up this notion and proclaimed that there had been a “constitutional revolution”. In his 1992 article “The Constitutional Revolution – Protected Human Rights” he introduced his activist reading of the two Basic Laws, and argued that with the enactment of the two laws Israel had added the basic features of a Bill of Rights to its constitution, and thereby revolutionized the Israeli constitutional framework. According to Barak, this revolution had several consequences.
Firstly, he argued that the position of human rights in Israeli law had fundamentally changed. With the enactment of the Basic Laws, human rights had ceased to be unwritten, and would now “enjoy an elevated legal status”. This integration of human rights was of crucial importance for Barak, as he held that “a regime that is based upon majority rule, yet denies the minority their human rights, is not a democratic regime”. He thus considered this to be part of a “deep internal change”.
Secondly, Barak held that the Knesset had acted as a constitutional council, and he agreed with Minister of Justice Dan Meridor that there had been a “real constitutional revolution”. The fundamental change should be seen in the fact that with the enactment of the Basic Laws, the Knesset had limited its power as the main legislator. Further legislation would now be bound to conform to the Basic Laws.
 Barak 1992; Edelman 2000; Neuer 1998; et al.
 Barak 1992, 1998; Edelman 2000; Neuer 1998; et al.
 Huntington 1991; p. xiii.
 Freedom House (2004).
 Freedom House (1999).
 Cf. Parry & Moran 1994, p.2.
 Cf. Held 2000; p.1.
 Crick 2002; p.1, citing his “Defence of Politics”.
 E.g. Lijphart 1984, 1994, 1999.
 For Israel, Barzilai 1997 uses this concept for instance.
 Cf. Dahl 1971; p.4. Cf. also his criteria for a democratic process; in Dahl 2000, pp.37-38.
 Murphy 1993; p.4.
 Cf. also Murphy 1993; pp.3-5.
 German: form of social interaction; cf. Neumann 1995; p.65.
 Cf. Lijphart 1999; p.217. It is, however, notable that Great Britain for instance has accepted judicial review of its laws – by supranational institutions like the European Court of Justice or the European Court of Human Rights.
 Cf. Lijphart 1999 who shows that plurality countries have especially high hurdles for constitutional change, p.221. Cf.. also Edelman 1994b on this who argues that in Israel a constitution could bring together the various cultural backgrounds, and educate its people about the norms of democracy; p.17.
 Zubaida 2001, p.xxii.
 Cf. BundOnline2005 2004.
 Murphy 1993; p.3; my italics.
 Cf. Dowding 2004; and Arneson 2004.
 Shamgar 1994; p.56.
 Cf. further Edelman 1994b; pp.ix-x.
 Barzilai 1997, p.194.
 Cf. Lijphart 1999 who presents different kinds of entrenchment, as for instance supermajorities or referenda; pp.218-223. Germany even protects some clauses of its Grundgesetz as ‘eternal’, and thus unchangeable by parliamentary intervention.
 Cf. Klein&Schubert 2001: “The term constitution is mostly used to describe the document that fixes the basic order of a given political entity [...]. This basic order is valid before and above all state law, it fixes the basic structure and the political organisation of the polity (e.g. of a state), regulates the relationship and the respective competences of the branches and contains the basic rights (and freedoms) of its citizens. Because of its primacy, the c. cannot be changed or amended easily, or in some cases not at all.“ (s.v. Verfassung; my italics and translation).
 Cf. Kretzmer 1992; p.239.
 Cf. Lijphart 1999; p.223.
 For more on different models see Schoeller-Schletter 2004.
 Schoeller-Schletter 2004; p.330; my translation.
 Cf. Schoeller-Schletter 2004; p.331.
 Cf. Schoeller-Schletter 2004; and The World Bank Group (2002); and Gesellschaft fuer technische Zusammenarbeit GTZ (date unknown).
 Murphy 1993; p.8.
 Cf. section 1.1. For Israel, see Cohen 2001.
 Cf. Mishler & Sheehan 1993.
 Cf. Tsebelis 2002; p.228; and Rose-Ackerman 1990.
 Mondak & Smithey 1997; p.1114.
 Cf. Tsebelis 2002.
 Tsebelis 2002; p.222.
 Cf. Lijphart 1999; p.228.
 Cf. also Lijphart 1999; pp.216-231.
 Cf. Edelman 1994b; p.6.
 The text of the Harari resolution reads: “The first Knesset charges the Constitutional, Legislative, and Judicial Committee with the duty of preparing a draft constitution for the State. The constitution shall be composed of individual chapters, in such a manner that each of them shall constitute a basic law in itself. The individual chapters shall be brought before the Knesset as the Committee completes its work, and all the chapters together will form the state constitution”; quoted from Barak 1998; p.13.
 Kretzmer 1992; p.238.
 Cf. Lerner 2004; p.239. For a further discussion of the reasons cf. Edelman 2003, p.10-11. Further Mandel 1999. On the question why human rights were not enacted cf. Sharfman 1993; pp.158-172.
 In Israel, the status quo describes the legal status of the religious communities, and certain provisions from the time of the mandate (before 1948). These include the prohibition of public transport on Shabbat (except for lines that were operative before 1948), and other important provisions, such as the personal status regulations that remain in the domain of religious law.
 Lijphart 1999; p.217.
 Barzilai 1997; p.195. Cf. also Israel Ministry of Foreign Affairs (1999b).
 Cf. Arian 1998; p.267.
 The article was named: “The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?”; Kretzmer 1992.
 Cf. Barak 1992.
 Barak 1992; p.12; my translation.
 Barak 1998; pp.16f.
 Barak 1992; p.12; my translation.
 For more on this cf. Likhovski 1969.
 Barak quoting Dan Meridor; Barak 1992; p.12.
 Cf. Barak 1992; p.13.
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