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
SUMMARY

Judicial review, its degree of legitimacy and the manner in which it is carried out are often discussed in legal literature and in the media. This 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... (see full summary)

 
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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
331
To Review, or Not to Review?
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).

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