Judicial Review of the Legislative Process

Abstract

Should the process by which laws are enacted affect their legislative validity? This Article attempts to provide a justification for judicial review of the legislative process and suggests that the court should encourage legislative due process. Lawmaking means responsible lawmaking, and the court should thus be able to ensure a minimal due process of lawmaking by reviewing the legislative process. To date the Israeli Supreme Court has refrained from judicial review of Knesset legislation by virtue of flaws in the legislative process. Recently however, Supreme Court judgments seem to have endorsed a form of judicial review of the legislative process, at least de jure. This Article presents the theoretical and comparative frameworks for judicial review of the legislative process and scrutinizes the law in those countries that conduct judicial review of procedurally defective laws together with an examination of the particular features of the rules governing such review. In comparative law, the characteristics of judicial review of the legislative procedures are similar to those manifested in the question of judicial review of legislation, and based on the same premises. In Israel as well, judicial review of legislation is based on the existence of a supreme constitutional norm, of basic rights and fundamental principles. The Article concludes by proposing that the main characteristics of judicial review: constitutionality, proportionality, and restraint should dictate the relationship between the Supreme Court and the Parliament in all aspects of judicial review.