Supreme Court Justice Yosef Elron slammed the court’s increasing intervention in controversial issues in his speech last week at the Bar Association conference.
“In recent years, we have witnessed a trend of expanding the authority of the Supreme Court and its increasing intervention in constitutional and even extra-constitutional review,” Elron said.
“This expansion, which I have consistently opposed, poses a real challenge to the principle of separation of powers. It leads to a discourse of extremes in which the court has become a public battleground, even in non-legal issues.”
“In my opinion, we must walk a middle path: a path that recognizes the authority of the Supreme Court but seeks to use it in a restrained, limited, and moderate manner.”
Elron warned that constitutional law in Israel has been developing for several decades without a complete constitution, based on key Basic Laws such as ‘Human Dignity and Liberty’ and ‘Freedom of Occupation,’ as well as on precedent-setting rulings of the Supreme Court. He emphasized that in recent years the trend has reached a peak, especially with the Supreme Court’s unprecedented verdict that it has the authority to repeal even Basic Laws—as happened in Amendment 3 to the Basic Law: The Judiciary (revocation of the reasonableness clause).
Elron also decried the fact that any Israeli civilian can appeal against the government’s laws to the Supreme Court, even those who will not be personally affected by the law. “At times, the moment a controversial law is passed, petitions are filed against it—even without waiting for its practical effects,” Elron said. “Thus, public issues immediately move from the legislature to the halls of the Supreme Court. The discourse focuses on the result—victory or defeat—instead of the substance, and every decision becomes a power struggle. This is a power-based discourse that also permeates constitutional law—and the damage from it is immense. The law, and especially constitutional law, is not black and white. It has many shades.”
Elron warned that “the most dramatic remedy—the annulment of a law or a basic law—is a conventional weapon that should be used only as a last resort.” He noted that in many cases, such as in the ruling on Amendment 3 to the Basic Law: The Judiciary, he argued that there was no justification for disqualifying a basic law at an early stage: “In the opinion of many, no significant change would have occurred if the amendment had remained in effect—and no damage would have been caused to the citizens of Israel.”
Elron emphasized that the judiciary’s authority “must be exercised responsibly and proportionally.”
“I say this as a Supreme Court Justice for eight years and after another 13 years in other courts,” he said. “I have always kept in mind the importance of public trust in the judicial system—because without it, the court has no validity.”
Last week, an Israeli district court judge left his position in the judicial system after expressing harsh criticism regarding the conduct of the President of the Supreme Court, Yitzchak Amit.
(YWN Israel Desk—Jerusalem)
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3 Responses
Oh, someone talking sense!
I agree with almost all of what he says. The main exception is that he seems to say that the Supreme Court has the right to overturn Basic Laws, but that right should be only rarely be exercised. In my view, given the quasi-Constitutional status of Basic Laws, the courts should have NO ability to overturn them, period. The Knesset is the Constitutional Authority in Israel – and when they pass a Basic Law in that capacity, that should not be reviewable by the courts.
That being said – I think there should be a stricter process for passing or amending Basic Laws – be it some supermajority, passing it in two consecutive Knessets, or similar. The way recent coalitions monkeyed around with Basic Laws for immediate political needs cheapend the authority of such laws, leading to the Supreme Court affording them less deference. Changing the way they’re passed should help restore their stature
an Israeli Yid
The whole concept of ‘basic laws’ having special ‘constitutional’ status is itself a creation of Aharon Barak’s imagination… The elected politicians at the time went along with him (on this and many other issues), because they saw the Supreme Court as a way to prevent the Chareidim from rewriting the laws when they eventually become a majority (something which was starting to be seen as apparently inevitable already then in the ’90s). That was the same logic behind importing (at least) tens of thousands of גויים גמורים from the former USSR at that time, to offset the demographic shift. (That one didn’t work, because they have fewer children than even secular Jewish Israelis.)
Eventually, the ‘Bagatz’ grew so powerful that the Golem turned against its creators and became a threat not just to the Chareidim, but to the sovereignty of the Knesset itself. Then, all of a sudden, the politicians began to wake up. It has now gotten to the point (with the help of the present AG) where the court itself is rapidly loosing whatever legitimacy it still may have claimed. Now even the judges are waking up…