Political Questions in the Court: Is 'Judicial Self-Restraint' a Better Alternative than a 'Non Justiciable' Approach?

Abstract

Judicial review of sensitive questions may be treated in a number of forms. Imagine a spectrum, at one end of which there is a barrier to any kind of intervention, such as an explicit norm withdrawing certain kinds of issues from the court's jurisdiction. At the other end, there is review for all questions. Only rarely do states and their judiciaries position themselves clearly at either of the spectrum's extremities, although examples can be found of both approaches i.e. the approach that constitutionally negates the possibility of review of issues, and the approach that regards questions as regular legal questions, hence admitting of review. Between the two extremities, there are some intermediate approaches. Each state gives its own particular response to the political doctrine, determining its place on the spectrum of review, based on its own specific balancing formula - the product of the specific variables of that state. These variables include the status of the court, its relative position in the system of state authorities, its power, and its degree of independence. It also depends on custom and culture. On a formal level it is also determined by normative and arrangements, which occasionally exclude defined areas from the court's jurisdiction.According to one of the intermediate possibilities, no barrier to intervention is found, and therefore it is incumbent on judges themselves to establish mechanisms that enable them to avoid adjudicating questions. This model draws very near to the end of the spectrum which prevents intervention in questions, and will henceforth be referred to as the non-justiciable approach.Another approach, closer to the position endorsing review, allows the judges themselves to establish criteria for intervention on questions, but the criteria established differ from the criteria applied in review of acts of other branches of government. This approach - of judicial self restraint - does not necessarily prevent review on questions, but the review is more restrained and more rarely exercised. While the judge may regard himself as authorized to adjudicate a certain question, given that he regards a certain question as justiciable, he may nonetheless reject a petition on its merits in view of its failure to satisfy certain criteria required for intervention. In this paper I argue that although the modern approach to questions in the court seems to be the judicial self restraint approach, this model should be reconsidered and its problems disclosed. Both approaches will be presented, while exemplifying an usually classified as a political issue in foreign systems: review of internal parliamentary procedures. In this issue, an examination of comparative law in states such as Israel, Germany, and Spain shows that the claim of non-justiciability has by and large been abandoned in favor of the constitutional review, exercised cautiously, with self-restraint. The central idea emerging from the case law is that the doctrine of supremacy dictates the overseeing of organs, even within the framework of their parliamentary activities, and even with respect to essentially questions.