To Review, or Not to Review? A Comparative Perspective of Judicial Review over the Legislative Process

• Author: Tzipi Zipper/Reut Dahan
• Position: Law & Emerging Technology Program, Interdisciplinary Center Herzliya, Israel/Master of Laws Program, Interdisciplinary Center Herzliya, Israel
• Pages: 329-384

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2018 e Institute for Migrant Rights Press

e authors would like to thank Professor Yaniv Roznai for his invaluable encourage-

ment, insight and guidance.

to rEviEw, or not to rEviEw?

A CompArAtive perspeCtive of JudiCiAl review

over the legislAtive proCess

Tzipi Zipper

Law & Emerging Technology Program, Interdisciplinary Center Herzliya,

Israel

Reut Dahan

Master of Laws Program, Interdisciplinary Center Herzliya, Israel

E-mail: reut.dahan70@gmail.com

Judicial review, its degree of legitimacy and the manner in which it is carried out

are oen discussed in legal literature and in the media. is article sheds light

on the distinction between substantive judicial review and judicial review of the

legislative process, which was at the center of the recent Kventinsky judgment

given by the Israeli Supreme Court. Although judicial review of the legislative

process is generally seen as more invasive, and as contravening the principle of

parliamentary sovereignty, this article argues that the opposite is true. In order

to illustrate this claim, we will present the existing legal situation in Israel, the

United States, Colombia, South Africa and Hong Kong. We will then present an

alternative model for judicial review of the process in Israel by using the judicial

limitation clause found in the Israeli Basic Law: Human Dignity and Liberty.

Finally, we will show that applying this proposed model would make judicial

review of proceedings more objective, less invasive and therefore more betting

than substantive judicial review.

Keywords: Law and Court, Comparative Analysis, Adjudication, Judicial Limitation,

Human Dignity.

VII Indonesian Journal of International & Comparative Law 329-384 (July 2020)

330

Zipper & Dahan

INTRODUCTION

e relationship between the judiciary and other branches of govern-

ment in Israel has historically been a strained and contested one. e

Israeli Supreme Court is oen criticized for its substantive judicial re-

view of legislation and its intervention in what many consider to be

political matters. However, the recent 2017 judgment in the Kventinsky

case cast the spotlight on a dierent form of judicial review in which the

court addresses the legislative process. is form of review, while not

new, had scarcely been used in the past and yet has recently emerged in

the constitutional jurisprudence of multiple countries. In recent years

procedural review has been exercised to a notable extent, particularly

in countries with relatively new constitutions and in which constitu-

tional jurisprudence is in its infancy, or in countries with signicant-

ly powerful or inuential executive branches. In these countries, the

practice of judicial review of legislative procedures has been used to

uphold the rule of law, to ensure the realization of constitutional rights

and principles, and, at times, to act as a check and balance towards

an overreaching executive branch. is article provides a comparative

analysis of recent approaches to procedural review by courts in Israel,

the United States, South Africa, Hong Kong and Colombia.

Many countries face challenges in the nature of the relationships

between the branches of government and judicial review may be

perceived as a violation of the separation or independence of the

branches. However, as judicial review of the legislative process, and the

impulse to resist it, becomes increasingly relevant, this article comes

to argue that procedural review is in practice less intrusive. erefore,

procedural review is a more betting form of review, which satises the

separation of powers and is in line with democratic principles, contrary

to popular opinion. Additionally, this article proposes a new model

for judicial review of the legislative process in Israel. is new model

adopts the tests of the limitation clause found in the Basic Law: Human

Dignity and Liberty, thereby grounding the method of procedural

review in Israeli constitutional law. e importance of this article lies

not only in the manner with which it provides a context and analysis

of the emerging changes in judicial review jurisprudence, but also in

the novel model of review it proposes. is proposed model, is a less

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Zipper & Dahan

invasive and more objective form of review, which has the potential to

strike the appropriate balance of authority between the judicial branch

and the legislative and executive branches.

I. THE THEORY OF JUDICIAL REVIEW

In democratic countries, courts are tasked with momentous responsi-

bility, rst and foremost of which is settling disputes and serving jus-

tice. However, the court’s functions and responsibilities extend beyond

divorce and criminal proceedings or society altering constitutional cas-

es. Courts in democracies hold a crucial role in a system of checks and

balances and separate branches. It is one which helps courts protect

the integrity and independence of the legislature, safeguards consti-

tutions and guarantees democratic process. e power of judicial re-

view is among the tools aorded to courts to fulll this responsibility.

rough judicial review, courts are able to examine and interpret the

laws, decisions, or actions of the other branches of government in order

to ensure their adherence to the rule of law.1 It is the primary means by

which individuals may challenge the constitutionality of public deci-

sion making and the results of those decisions. In a country without

a written constitution detailing the procedures of legislation such as

Israel, the power of judicial review plays a particularly important role

as will be seen later on.

Judicial review is a wide-ranging theory which encompasses

multiple types of judicial review. e classic theory of judicial review

is the substantive review model. In this model, the court examines

whether provisions of a particular law infringe upon constitutionally

protected rights or norms and potentially invalidate the law if deemed

unconstitutional depending on the jurisdiction.2 ere is, however,

an additional theory of judicial review which entails review of the

1. Keith E. Whittington, e Power of Judicial Review, in T O H

  U.S. C (Mark Tushnet, et. al eds., Oxford Univ. Press

2015).

2. Wil Waluchow, Constitutionalism, in T S E 

P (Edward N. Zalta ed. Spring 2018 ed. 2018).