Claude Klein

The Defence of the State and the Democratic Regime in the Supreme Court

On 15 May 1985, after a delay of eleven months, the Supreme Court finally published the reasons for its decision of 28 June 1984 in the matter of Neiman et al. v. Chairman of the Central Committee for the Elections to the 11th Knesset. The decision, in Hebrew, is 110 pages long. The theoretical analysis of this important decision will be the main subject of this article; first, however, it may be well to question the legitimacy of postponing the publication of the reasons for a decision. This practice seems to reflect the tension between the two roles filled by the judge in our system (as in the majority of legal systems): on the one hand, the judge must make a definite decision between two parties-and in this context it is important that the judgment should not be delayed; on the other hand, by his very decision, the judge creates law beyond the immediate litigation with which he is concerned-and in this second sphere speed is not the first requisite. The unprecedented delay in the publication of the reasons in the matter concerning us here, appears to have had a direct influence on the legislature in its drafting of an important amendment to the Basic Law: The Knesset (an amendment which was finally adopted on 31 July 1985). As we shall indeed see, there was a direct link between the wording of the amendment and that of the reasons. This phenomenon, bordering on government drawn by the judiciary, is all the more paradoxical in a legal system which in fact has no supra-legislative constitution.

The Temple Mount Case

The Temple Mount case is of great interest for a number of reasons. In the first place, the decision concerned an issue of great delicacy from the religious point of view, namely the right of Jews to hold prayers on the Temple Mount, which was formerly the site of the Temple and where the Dome of the Rock and the Mosque of El-Aksa now stand. Secondly, the decision is relevant to one of the major problems of Israeli Law, namely the reception of Mandatory Law into the legal system of Israel. Finally, the judgment was delivered at a time when the Supreme Court had been coming under criticism on account of a number of important decisions which bore on political issues, as a result of which it seemed that the Supreme Court would increasingly intervene in political affairs. This criticism in its turn, led the Court to devote its attention to the problem of justiciability, a problem which received special consideration in this case.