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Licensed Unlicensed Requires Authentication Published by De Gruyter August 14, 2018

Impeachment by Judicial Review: Israel’s Odd System of Checks and Balances

Yoav Dotan

Abstract

This paper focuses on a doctrine that the Israeli Supreme Court has developed since the early 1990s under which the Court removes officeholders from their position by ordinary judicial review proceedings. Although this doctrine is not founded on any formal constitutional settings, nonetheless it has had a significant influence on the relationships between the judiciary and the political branches, as it was the basis for the removal of several major political figures — including ministers and top bureaucrats — from office.

The substantial rise of judicial power in Israel since the early 1980s has been documented by the literature of comparative constitutionalism. Yet this rise took place despite the lack of any meaningful formal constitutional guarantees of judicial autonomy in Israeli constitutional law. I argue that this doctrine of removal can serve to explain this gap. This practice of ‘impeachment’ by judicial review is unique to Israel. Therefore, it has hardly been studied by the comparative literature. It is, however, extremely common and influential in Israeli constitutional and political life. It also enjoys massive support from legal elites and the general public alike. I argue that one cannot understand the relationships between the courts and politics in Israel without taking this component into account. In this Article, I describe the development of this practice by the Israeli Supreme Court and its influence on the relationships between the courts and politics in Israel. I also provide a critical evaluation of the doctrine.


∗ I am indebted to Joseph Weiler, Ruth Gavison and the participants in the conference on Daniel Friedmann’s book The Purse and the Sword (Tel Aviv University, June 2017) for their valuable comments on an early draft of this article, and to Gal Kiviti for her excellent work as a research assistant.

Cite as: Yoav Dotan, Impeachment by Judicial Review: Israel’s Odd System of Checks and Balances, 19 THEORETICAL INQUIRIES L. 705 (2018).


Published Online: 2018-08-14

© 2018 by Theoretical Inquiries in Law

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