Landmark Judgments and Constitutional Revolutions

Yaniv Roznai

IDC Herzlyia

Many of the judgments scholars consider to be ‘landmarks’, are judgments in which courts engage with constituent power – the highest authority in the constitutional order. This is most obvious when a court blocks constituent power, for example, by endorsing a doctrine of ‘implied limits’ on the power to amend the constitution. As Richard Albert claims, it is when courts possess the ability to review constitutional norms that they make themselves truly supreme. When courts possess such authority, they have less to fear from political backlashes or overrides (see Nicola Tommasini, Pedro Riccetto & Yaniv Roznai, 2020). Judgments are also often regarded as landmarks when a court adjudicated on the extra-legal exercise of constituent power; by having to recognize or reject regimes that came into power by revolutions or coup d’états. Finally, a landmark case can be a case in which the court itself transforms the legal system by adjudication. Indeed, courts themselves may bring about ‘a constitutional revolution’ – a “paradigmatic displacement, however achieved, in the conceptual prism through which constitutionalism is experienced in a given polity” (Gary J. Jacobsohn & Yaniv Roznai, 2020, at 19).

In a famous article, Alec Stone Sweet defined “a fundamental transformation in the normative foundations of a legal system through the constitutional lawmaking of a court” (at 915) as a ‘juridical coup d’état.’ According to Stone Sweet, a juridical coup d’état proceeds through the exercise of powers that, as a matter of form but not substance, have been properly delegated to the judicial authority by the basic norm. However, the substance of the judicial decision might not have been authorized, or might even have been forbidden, by the substance of the prior basic norm. Accordingly, although not all ‘creative judicial lawmaking’ results in a juridical coup, all juridical coups will likely be created by such creative judicial rulings (ibid., at 916-17).

Stone Sweet claims that judges in courts that have instigated constitutional revolutions have displaced “constituent authority as regulators of constitutional development.” Moreover, because a juridical coup d’état fundamentally changes the Grundnorm itself, it is not easily defended as a deduction from the Grundnorm or with reference to pre-coup legal materials; accordingly, courts delivering such decisions base them on new theories of the constitution and “a huge amount of doctrinal activity is devoted to defending the coup d’état, on functional and other normative grounds…” (see Stone Sweet, at 927).

This account seems to fit the constitutional revolution that took place in Israel. In the famous Mizrahi Bank Case of 1995, the Israeli Supreme Court held that the Knesset (the Israeli Parliament) possesses constituent authority. The Court found the Knesset may bind its legislative powers, and that the court can invalidate laws that would be incompatible with the Basic Laws (CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, 49(4) P.D. 221 (1995), see Suzie Navot, 2016). In this case, the Supreme Court made itself the final arbiter on the question of who the holder is of the constituent authority. President Aharon Barak’s main judgement painstakingly devotes great theoretical activity to defending the Knesset’s constituent authority. He bases his arguments on the models of Kelsen, Hart and Dworkin, which present a plethora of challenges (see Eli Zalzberger, ‘The Knesset’s Constituent Authority – two side remarks to obiter, or invitation to re-open the debate’, 3 Mishpat Umimshal (1996), 679, 690-691). Indeed, Justice Mishael Cheshin’s minority opinion, opposing the recognition of the Knesset’s authority to enact a constitution by force of a judicial ruling, raises several challenges to Justice Barak’s recognition of constituent authority.

It was not just the question of constituent authority that was open to various interpretations, but also the question of how to solve a conflict between Basic Laws and ordinary legislation and the power of the court to conduct judicial review. Although the Basic Laws of 1992 included explicit limitations on the legislative powers of the Knesset, they lacked a supremacy clause or an explicit provision governing their own status. A plausible interpretation according to which the Basic Laws possess the status of ordinary legislation, would have allowed the Knesset to violate any of the provisions of a basic law if it does so expressly, similar to a ‘notwithstanding’ mechanism (Mizrahi Bank, para. 124 of Justice Cheshin’s Judgment). Ruth Gavison, one of the foremost critical voices of the Mizrahi Bank case, thus claimed, “there is no precedent, anywhere in the world, wherein the court decides on the supremacy of basic laws, and confers to itself the power of judicial review of Knesset legislation, without the existence of a full constitutional document and without explicit provision.” (see Ruth Gavison, 1997). I believe that the Mizrahi Bank judgment is correct. But regardless, it was surely a creative judicial decision that fundamentally transformed the normative foundations of the legal system.

It is true that the Court could not have rendered the Mizrahi Bank judgment without the enactment of the two Basic Laws on human rights three years earlier. But it is also true that the constitutional revolution could not have arrived without its judicial affirmation. Each required the other. Palombella is therefore not wrong when claiming that “the juridical coup is more aptly understood as part of a wider and multi-perspective frame of the analysis of constitutional transformations.” As in the Mizrahi Bank case, a judicial decision can trigger, support or conclude an ongoing constitutional revolution. The constitutional revolution, Corrias writes, “leaves the legal order floating in limbo for some time: It depends on other authorities whether the coup actually was successful,” and “whether or not one may speak of a successful juridical coup can only be determined in retrospect.” (at 1553-1566). In the Israeli case, the revolution was “floating in limbo” between 1992, when the two Basic Laws on human rights were enacted, and 1995, when the Court provided a retrospective affirmation of the revolution. The fundamental transformation established by the Court was then accepted by other officials (in the Hartian sense), as the Knesset itself and the governmental departments accepted the judgment and followed the ruling.

Of course, with its questionable disputed legitimacy, “the likelihood that any juridical coup d’état will provoke doctrinal wars, big and small, is … high.” (Alec Stone Sweet, at 917). This was certainly the case with the Mizrahi Bank case; a judicial decision holding that a constitution was given to the state without any broad public debates, became a focus of profound and enduring doctrinal controversy over the very legitimacy of the assertion by the court of its judicial review authority. This controversy has led in recent years to a counter-revolution (see Yaniv Roznai, 2018).

The Mizrahi Bank judgment is a radical transformation that claims to be no more than an ordinary interpretation of the Basic Laws. What the Court claimed to be doing was acting completely within the established boundaries of the legal text of the Basic Laws. Or as Corrias notes, “the court can only be a constituent power while claiming to remain a constituted power” (at 1567). A court may claim that it remains a constituted power, but when engaged in the activities of a constitutional revolution, it may turn itself into a constituent power. According to Schilling, “sometimes a constituted power may make itself into a constituent power. Indeed, in engaging in a revolution, the court necessarily abandons its role as a constituted power under the pre-revolutionary constitution and recreates itself as a constituent power.” (at 309). This, for Schilling, occurs only rarely in a juridical revolution. For example, in the South-African constitution-making process, through the certification cases, the Constitutional Court was perhaps actively exercising (or at least co-exercising) constituent power by participating in the process. However, in other cases, Schilling writes, the court’s contribution amounts to merely an interpretation or revision of the constitution, and “as such interpretations … do not touch the genotype of the constitution…” (ibid.) Consider, as another example, the judicial decision from Honduras concerning presidential term limits. In this unanimous judgment of 2015, the Constitutional Chamber of the Honduran Supreme Court held that the constitutional provisions banning Presidential reelection and making the reelection clause unamendable are unconstitutional and inapplicable (see D. Landau, R. Dixon & Y. Roznai, 2019). This judicial decision, which completely eradicated the presidential term limit rule that had been the core of the 1982 constitution, brought about a constitutional revolution.

Constitutional revolutions through adjudication raise serious questions of legitimacy. Courts are constituted authorities, limited in their scope of action. Like other governmental bodies, courts must act within constitutional limits imposed upon them. “If the Constitution establishes some part of itself as being unchangeable”, Radim Dragomaca asked, “does it also limit the power of the courts to change the meaning of that provision through interpretation?” (Radim Dragomaca, ‘Constitutional Amendments and the Limits of Judicial Activism: The Case of the Czech Republic,’ in Willem Witteveen and Maartje DeVisser, eds., The Jurisprudence of Aharon Barak: Views from Europe (Wolf Legal Publishers, 2011), 198). Ostensibly, it seems to me that if certain constitutional principles or provisions are considered unamendable, this means that courts cannot interpret them in a manner that modifies their core so as to change the constitutional identity. This does not mean that courts cannot interpret unamendable principles; they can. What courts seemingly cannot do is to change the essence of the core of the constitution and its basic principles, because such an action requires resorting to the constituent power (see Yaniv Roznai, 2018). Pouvoir judiciaire is not pouvoir constituant. However, as the Honduras case illustrates, a judicial decision can in fact revolutionize the constitutional order. To use Georg Jellinek’s formulation, ‘the normative power of the factual’ (yet freeing it of its original context), a judicial decision can revolutionize a constitutional order. When it succeeds, one may then say in retrospect that judicial power was exercising constituent power.

*This post is based on Chapter 7 of Gary J. Jacobsohn & Yaniv Roznai, Constitutional Revolution (Yale University Press, 2020).

Yaniv Roznai is Associate Professor at IDC Herzlyia.

Suggested citation: Yaniv Roznai, ‘Landmark Judgments and Constitutional Revolutions’ IACL-IADC Blog (1 December 2020) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-asia/2020/12/1/landmark-judgments-and-constitutional-revolutions