Piotr Serafin
The ‘Constitutional Revolution’ and The Role of The Judiciary in Israel [View PDF]
ABSTRACT
The article analyzes the recent developments in Israeli constitutional law. It describes a process described as the ‘constitutional revolution’ – the assertion of the power of judicial review by the Israeli judges in the Bank HaMizrahi judgment. The ‘revolution’ cannot be understood whit out the knowledge of Israeli constitutional arrangements. The first part of the paper describes the Israeli constitutional system, its evolution and the position of the judiciary. After that, I describe the Bank HaMizrahi judgment itself. The second part of the change in the role of the judiciary is the more wide use of international law in cases involving the Occupied Territories. One of the main drives of the ‘constitutional revolution’ was the ‘militant judiciary’ – personal judicial philosophy of Justice Aharon Barak. In the last part the identifies and describes political and legal factor that ushered in the ‘judicial revolution’: separation of powers, politics of rights, interest groups and opposition use of the courts, partisan, paralyzed majoritarian institutions, positive perception of the courts and willful delegation of problematic issue to the courts by political institutions.
Keywords: Judicial revolution, Israel, Aharon Barak, judicial activism, Bank HaMizrahi v. Migdal Cooperative Village