The Coalition-Formation Politics of Israeli Constitutionalism


The Coalition-Formation Politics of Israeli Constitutionalism

Prof. Sam Lehman-Wilzig

Schusterman Visiting Israeli Scholar, Brown University

Americans can be forgiven for missing the recent (Feb. 24) 206th anniversary commemoration of its revolutionary Supreme Court decision Marbury vs. Madison (1803), in which the principle of judicial review was officially incorporated into the political system. By now, everyone accepts that the Supreme Court has the authority to rule whether Congressional laws are constitutional or not.

           Israel should be so lucky. While foreign attention is focused on the peace process, Israelis have been involved for the past few years in an extremely and (even for Israeli politics) unseemly political brouhaha over this very question. Indeed, its reverberations are being felt in the present coalition formation negotiations, with Yvette Lieberman demanding the retention of the highly controversial Prof. Friedman as Justice Minister, and almost every other coalition partner not on the far right demanding his replacement. What’s the core issue here? There are two: overt and covert.

           Israel has a parliamentary form of government. As such, the principle of judicial review is not appropriate, as parliament is considered supreme – unless it explicitly sets up a Constitutional Court (as did Germany). Israel’s Chief Justice Aharon Barak (now retired), unquestionably the greatest constitutional expert in Israel’s history, thought otherwise. He pulled a “Marbury vs. Madison” back in the mid-1990s, claiming that Israel’s Supreme Court does have this power.

           The right-wing camp was not happy, because although the Court has not yet canceled any specific legislation, it has interfered in governmental policy-making, usually regarding national security matters (the Wall/Fence; expropriation of Palestinian land; etc.). But the broad left and center of the country, taking its cue from Uncle Sam, were quite pleased that finally there existed a real defender of civil rights in what had heretofore been an overly centralized polity, with almost unchecked power in the government’s hands.

           Matters came to a head in the Olmert government when Prof. Friedman – a noted academic legal scholar in his own right who had excoriated the court’s “usurpation” of judicial review – was appointed Justice Minister two years ago. He promptly set out to clip the Court’s wings in several ways (among them, changing the membership of the Appointments Committee that decides on new Supreme justices) – and all hell broke loose. Why did PM Ehud Olmert – by this time no right-winger – do such a thing?

           As is well known, Olmert has been under police and Attorney General investigation for several years, for a host of possible offenses. Speculation has it that appointing Prof. Friedman was his way of getting back at the entire judicial system. Reinforcing that impression is Lieberman’s demand that Friedman be retained – for Lieberman also has spent the last decade (yes, 10 years!) under police investigation for assorted white collar crimes. Of course, as a bona fide right-winger on national security matters Lieberman might also be worried about the Court’s overly activist, intervention approach. In any case, as he is under a police cloud of suspicion, Lieberman himself (or anyone from his party) cannot be appointed Justice Minister so that Friedman is the only alternative from his perspective.

           There is an irony of sorts in this. Let’s return to Chief Justice Marshall’s important ruling. Without going into the convoluted details, the bottom line back in 1803 was that he “created” judicial review by arguing that Congress’s law enabling any American citizen to turn directly to the Supreme Court for succor was itself unconstitutional because the Constitution clearly stated that the Court could only receive cases on appeal through the court system. Thus, to this day American citizens cannot turn straight to the Supreme Court for help.

           Not so in Israel! There the Supreme Court wears two hats: 1- Court of Appeals; 2- High Court of Justice (BAGATZ). Through the latter (that has existed from the start of the State of Israel), any Israeli citizen can directly petition the High Court against bureaucratic malfeasance, arbitrary decisions etc. It is actually under this hat that the Supreme Court has expressed its judicial activism and fomented the ire of the Right. In short, the Court is being formally attacked for something it is not in fact doing (nullifying legislation) and not attacked for what it is – legitimately – doing!

           So if you thought that the coalition negotiations are complicated by the peace process divide between Kadima/Labor and Likud/Yisrael-Beiteini, that’s only half the story. In the end, it might well be the “abstruse” constitutional issues of judicial review and control of the Justice Ministry that determine the character of Israel’s next government.

March 4, 2009

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