Dr. Dafhne Barak-Erez *
During the last two decades the Israeli Supreme Court has intensified its intervention in the so-called political domain, and eroded thereby the spheres of non-justifiability. More concretely, it has ventured to enter the domain of “pure” political power. Accordingly it has reviewed the legality of political agreements, political nominations (nominations of political allies to public positions) and political resource allocation (government funding to organizations affiliated to political supporters). These developments were considered to have significant influence on political life in Israel, and as a result, the Supreme Court was perceived as an omnipotent court. Contrary to this prevalent view, the article challenges these perceptions.
It argues that, looking more closely, the court's influence on many
of these issues was not significant at all. First, many of the doctrines
developed by the Court for the review of political actions have proved
to be ineffective in practice. Usually, in proceeding of judicial review,
the Supreme Court (in its capacity as the High Court of Justice)
is not supplied with evidence that can support a ruling abolishing an administrative
decision (e.g., in regard to public nominations or public funding) and
that due to its political-interesant motive. Second, in everyday
life, outside the court of law, the norms mandated by the Court hardly
influence other decisions taken by politicians. In fact, they are
applied only to those cases that will be brought before the Court.
The reason for this phenomenon is not merely legal but socio- political
in essence. It seems today, that many groups in Israel support
the politics of interest groups that do not affirm the values which inspire
the court rulings against partial political decision making.
* Dr. Dafhne Barak-Erez, Senior Lecturer, Faculty of Law, Tel Aviv University.