Constitutional Paternalism: The Israeli Supreme Court as Guardian of the Knesset

In 2017, the Israeli High Court of Justice (HCJ) decided two dramatic decisions: First, it invalidated a law based upon flaws in the legislative process. Second, it issued a nullification notice to a temporary Basic Law that – for the fifth time in a row – changed the annual budget rule to biennial one. While some have criticized these decisions as “undermining the balance between the three branches of government”, I claim that the HCJ protected separation of powers, acting as guardian of the Knesset in its legislative and supervisory roles for improving the Israeli political-democratic system. Thus, by applying creative judicial mechanisms the HCJ was exercising a ‘dynamic role’. This exercise of judicial activism, not in a traditional counter-majoritarian role of the court as guardian of individual rights but as guardian of the legislature in a conflict between the branches, resembles courts’ activities in the Global South geared to protecting fragile democratic processes.