On the Contemporary Challenges to Judicial Review

About a year ago the Knesset (the Israeli parliament) passed one of the most despicable laws ever enacted by it. Despite its innocent sounding name "The Civil Damages Law (State Responsibility), Amendment 7," this law sweepingly denies any Palestinian residents living in areas defined by the defense minister as confrontation zones of the right to compensation, apart from a few exceptions. Thus, for example, a Palestinian passerby who is blinded by negligent Israel Defense Forces' gunfire (a bullet accidentally discharged during non-operational activities, for example), and who lost his livelihood due to the incident, will receive no compensation. Even if it is proved that the bullet was fired maliciously, the victim will receive no compensation unless the guilty soldier is found and convicted, which is highly unlikely.

A few days ago, the Israeli Supreme Court found the law unconstitutional. In addition to the regular protests against the so-called activism of the Israeli Supreme Court, Israeli politicians ignorant of the changes brought by the basic laws in 1992 have challenged the power of the Court to declare laws unconstitutional. This power was not explicitly specified in the basic laws passed in 1992. Yet, in 1995 the Supreme Court declared it has such a power on the basis of the provisions of the basic laws.

Even if the Court was wrong in its decision in 1995, the power to review legislation has become since then a basic feature of the Israeli system. Challenging this important declaration is equivalent to challenging the American decision in Marbury v. Madison. Debates concerning the scope of the justified interference in legislative decision-making are of course important and legitimate. It is undesirable however that the question of whether courts have the power to review statutes is still debatable. Furthermore, unlike the American Constitution, Israeli basic laws can be amended relatively easily. If politicians wish to deprive the Court of its powers to review legislation, they can do so. Fundamental debates concerning the power of the Court undermine the legitimacy of the legal system as a whole.