Wendy Doernberg, Pitt Law '11, studied Israeli law at the Hebrew University of Jerusalem and lived in Jerusalem for 6 months...
nlike the United States, Israel has yet to adopt a formal written constitution. Even some of the laws which form the basis for governmental decisions came into being only relatively recently. I learned while studying in Jerusalem that the lack of a written constitution has had a major impact on judicial decisions, particularly within Israel's doctrines concerning the right of standing (zchuyat ha'amidah)
for petitioners to the Supreme Court. The American right of standing takes into account a limited judiciary, federalism and separation of powers. However, in Israel, this right was expanded to take into account its internal and external pressures.
The Basic Law of Israel concerning the judiciary was not passed until 1984. The Supreme Court can hear issues not within the jurisdiction of other courts that need to be heard for the sake of justice. Even though the Supreme Court has certain enumerated instances of jurisdiction, the Basic Law specifically says that these enumerated instances do not limit the ability to decide other matters.
The Israeli Supreme Court was cautious to expand standing at first. However, even in an early case, Leon v. Gubernik
(1949), the Court recognized that the separation of powers "is no longer so rigid and immutable as it was when once formulated by Montesquieu." In 1988, Ressler v. Minister of Defense
represented a departure from a line of conservative case law, and significantly expanded the right of standing. Ressler
concerned an attorney's challenge to Yeshiva students' exemption from mandatory military service. It is particularly interesting because Justice Barak reviewed the difference between the role of the Supreme Court in the United States and that of the Supreme Court in Israel. He explained that while the United States' view of standing grew out of a constitutional provision, Israel's concept has no statutory anchor. While the US approach aims to maintain governmental legitimacy, Israel's focuses more on individual rights, meaning that petitioners must only show a "reasonable likelihood of prejudice to a legal right." This right could even include the interest against government corruption that is of "salient constitutional character," dealing with defects in administrative action or issues directly concerning the rule of law.
This broad view has been applied in a number of Israeli Supreme Court cases which would probably be dismissed for lack of standing in the US Supreme Court. One such case (Shiran
) challenged the broadcasting authority because, according to the petitioners, a television special on the history of Zionism did not include enough information about Jews from Arab countries. Another case (Barzilai
) raised a direct challenge against the President of Israel's decision to pardon security officials who had killed suspected terrorists before criminal conviction. In another matter (Shulamit
), petitioners argued that they had an interest in the "fortification of the rule of law" and challenged the Minister of Justice's refusal to extradite a suspected murderer to France in violation of an extradition treaty. Many challenges have been brought against the legality of the security fence and its various sections.
The lack of a formal written constitution has allowed Israel the flexibility to develop a standing doctrine which provides a broad basis for judicial review and intervention. The broad view of standing allows for interference by the judiciary in matters concerning the executive and legislative branches of government and provides a powerful mechanism for Israel to address some of the legal issues that arise from the continuous challenges facing the country. It will be interesting to see if Israel's broad standing doctrine continues to serve it well as it develops over time.Photo Credits: Wendy Doernberg, Pitt Law '11