Liberty of the Press Forever?
Constitutions are linked both to the past and to the future. A central constitutional mechanism in the attempt to mark a dividing line between the past and the future, to represent a new era are unamendable provisions. Unamendable provisions, in this sense, play a “negative” role, serving as a lasting reminder of recent past devastations and as a constitutional/institutional attempt to transform and never return to past injustices. It is within this framework of ‘never again constitutionalism’ I wish to examine one of the most unique and interesting unamendable provisions in the world: the protection of ‘Liberty of the press’ in the Mexican Constitution of 1824.
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Game of Chicken
Yesterday, on September 12th, the Israeli Supreme Court, sitting en banc, heard eight petitions challenging a hotly contested constitutional amendment. The Court has rarely sat en banc in the past, and this is the first time that it sits in a composition of fifteen justices, attesting to the importance that the Court attributes to this decision. The amendment modifies Basic Law: the Judiciary, which protects judicial independence, lays out the process of judicial selection for all the state courts and grants the Supreme Court the authority to supervise state action when the Court convenes in its capacity as a High Court of Justice. In this blog, I will explain each side’s arguments and the strategic considerations behind the Attorney General’s unprecedented move to push the Court to explicitly invalidate a constitutional amendment. I will show how both sides ultimately found themselves dragged into a game of chicken from which they could not back down.
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The Folly of the Israeli Government in Restricting Reasonableness
On Monday, July 24, the Israeli legislature passed a constitutional amendment that would constrain the courts’ ability to use the reasonableness doctrine. The reasonableness doctrine is a common law doctrine developed by the Israeli courts to review executive decisions. Without the reasonableness doctrine, Israel is more conflicted than ever, and vulnerable to the spread of the scourge of corruption. The government shot itself in the foot both domestically and internationally.
Continue reading >>Did Israel Lose its Sanity?
Israel is in the midst of an acute struggle over its constitutional identity. We are witnessing a government adamant about revolutionizing Israel’s constitution (“Basic Laws”), which may typically be amended by a simple majority of the legislature and is thus prey to the whims of an extreme government. The most recent move on the government’s agenda, passing a constitutional amendment that would severely restrict the reasonableness doctrine, would bring Israel closer to the brink of constitutional chaos. In this blog, I explain the theoretical arguments in favor and against the proposal and lay out the implications, should this proposal go through, given the government’s true, concerning motivations that are already evident on the grounds.
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War over Israel’s Judicial Independence
The new Israeli government wasted no time in initiating an all-out attack on the independence of the judiciary. It is promoting in full speed two parallel proposals to reform the judiciary in the hope that at least one of them, or a hybrid of both will be codified. The government claims that its proposed judicial reform will promote a more democratic and representative judiciary. Yet, a careful analysis of its proposed reform suggests that the government intends to fully politicize the judiciary. It will change the process of appointment to the Judicial Selection Committee, placing control in the hands of the government. Simultaneously, it will neutralize the ability of the opposition in the Knesset and the professional elites (the Justices and the Bar Association) to protect judicial independence from governmental takeover.
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The Theoretical Limits on the Override Power
In 2019, anticipating that Israel might one day adopt an express override mechanism that would enable the Israeli legislature (the Knesset) to override the Basic Laws (Israel’s Constitution), I developed a novel theoretical framework to limit the override power. With the new hard-right government, my theory might be tested in practice. I therefore want to make this theory available in English for international audiences.
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On the Nexus between Separation of Powers and Judicial Power
This exercise in comparative constitutional law shows how, paradoxically, positioning a country on either side of the spectrum of separation of powers structures may lead to similar curtailment of the judiciary’s power, though courts in the two opposing regimes may use very different, and even opposing, judicial doctrines to reach similar non-interventionalist results. Moreover, though scholars typically study these common law judicial doctrines independently of one another, they are all a manifestation of how strong or weak the separation of powers in a given country is. Ultimately, the judicial branch may supplement, but not supplant, the democratically elected political branches, irrespective of the separation of powers in the country in question
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The High Stakes Israeli Debate over the Override
Following the 2022 elections to Israel’s legislature (Knesset), a hardcore right wing coalition is in the process of forming. Each of the potential partners in this coalition fantasizes about introducing an override clause into the Israeli constitutional system for different political motivations. However, the result would be the same. It would allow the Knesset to disproportionally infringe upon constitutional rights.
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The Tangible and Imminent Threat to Israel’s Judicial Independence
A fierce debate is raging these days about the democratic implications of the Israeli 2022 elections to the twenty-fifth Knesset (legislature). Yet, those who read the platform of the Religious Zionist Party—as expressed in the program "Law and Justice-Reform of the Judicial System," signed by the members of the Knesset, Bezalel Smotrich and Simcha Rothman—cannot ignore the real and imminent danger to Israel’s judicial independence. The top item on their agenda, published during their election campaign, is changing the judicial appointment process.
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Evolution vs Revolution
We are all aware of the polarization afflicting modern democratic societies. It has intensified to the point that each camp perceives the “other” as a threat to its values and way of life. I argue that the current conflicts democratic societies face are often rooted in constitutional clauses that preserve problematic past laws predating the adoption of the constitution. The preservation of these laws has sentenced countries to a long battle to reconcile between their democratic and liberal values and the ghosts of a more anachronistic past.
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“We the Territorial People” and the Russia-Ukraine War
Not enough attention has been devoted to Russia’s demands that Ukraine amend its constitution to recognize Crimea as Russian territory as well as accept the independence of the separatist regions in eastern Ukraine – Donetsk and Luhansk. Though it may not seem intuitive, constitutional law and its accompanying methods of holding referenda to amend constitutions is at the heart of the conflict between Russia and Ukraine. Is constitutional amendment the way to achieve a breakthrough? What conditions must be met to legitimize secession, which includes the breaking apart of citizens along with the state’s territory, on which they reside?
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Saving the Constitution from Politics
On May 23, 2021, the Israeli High Court of Justice (HCJ) delivered an important decision setting and defining the limits for the use of Basic Laws – laws of a constitutional ranking – for the purpose of solving temporary political and coalition problems. The Basic Laws are supposed to be “the crown jewels” of our constitutional system, yet in Israeli politics they have become an instrumental tool for narrow and everyday political interest, often amended in a temporary manner. The decision, given by a 6-3 majority of an extended bench, now defines some constitutional boundaries for the proper use of Basic Laws.
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