Israel in Turmoil over Judicial Reform

 By Henry Srebrnik, [Charlottetown, PEI] Guardian

Following a string of inconclusive elections in Israel which resulted in unstable minority governments, Benjamin Netanyahu’s Likud Party finally managed to cobble together a working coalition in the wake of last November’s general election, the fifth in less than four years.

But to achieve this, he brought politicians from parties once considered beyond the pale in Israeli politics into leading roles, creating the most far-right coalition in Israeli history.

Many people in Israel have expressed their concern over various aspects of the new government’s policies regarding an array of issues. But the one that seems to be most prominent is Prime Minister Netanyahu’s desire to limit the powers of the Supreme Court, as the issue of judicial reform has become a key coalition demand.

CIVIL DISOBEDIENCE

Among the proposed reforms are changes to the system of judicial appointments, clear delineation of the conditions under which the Supreme

Court can void laws, and an override clause. The latter would allow the Knesset to pass a law overruling a Supreme Court decision striking the law down.

Israel’s legal establishment and their allies, largely on the political left, claim that these reforms will result in the death of Israeli democracy and the end of minority rights. Many, including leaders of the political opposition that lost the last election, are demanding civil disobedience, including a strike by the civil service.

Israel’s Attorney General Gali Baharav-miara has slammed the plans, which would allow a Knesset majority to overrule High Court decisions, as a sign Israel could become a “democracy in name only.”

U.S. Ambassador to Israel Tom Nides met Jan. 26 with over a dozen leading Israeli business and tech executives, most of whom warned him that this would likely harm Israel’s economy.

Visiting Israel a few days later on Jan. 30, U.S. Secretary of State Antony Blinken added a reprimand over the reforms.

“Building consensus for new proposals is the most effective way to ensure they’re embraced, and that they endure.”

In Washington, Democratic lawmakers like Brad Sherman, one of Israel’s strongest supporters in Congress, warned that the current policies could erode support for Israel.

NO LEGAL BASIS

At the heart of the new reform lies the judiciary’s ability to annul laws enacted by the Knesset, Israel’s parliament. Right now, there are no formal limitations on such judicial review. It remains to the discretion of the court to decide whether to discuss a petition from any citizen.

There is no quorum for judicial review of the Knesset’s laws, and a simple majority can annul laws. Thus, even laws that were approved by overwhelming majority in the Knesset can be annulled by a court decision. The Israeli Supreme Court has given itself this authority, without ever having an explicit legal basis for it.

Until the 1980s, the Supreme Court restrained itself from involvement in certain issues, relying on the doctrine of “justiciability.” This doctrine meant that there were certain issues in which the court had no expertise, in which no legal parameters existed and in which judicial involvement would be inappropriate.

But in the 1990s, Aharon Barak, then the chief justice of Israel’s Supreme Court, pronounced a “constitutional revolution” and arrogated to his institution more power, including the right to overturn any piece of legislation.

So to what extent should this institutional imbalance be amended? How difficult should it be for the courts to review laws passed by the Knesset? In many cases, the laws that have been invalidated in Israel were not going to infringe basic human rights. They were simply contrary to the judges’ worldview and set of values.

WESTERN NORMS

As for the proposal to put judicial appointments in the hands of the Knesset, this will merely put the country in line with places like Canada and the United States.

There is a very serious danger to democracy when voters feel that no matter how they vote, policies will not change because an unelected branch of government prevents them from changing. Taking away this ability, or harming it in a major way, is contrary to the very basic principle of liberal democracies.

Champions of the current configuration of the Israeli judiciary believe that its famous independence is a necessary check on the legislature, and that it exercises proper authority in checking and repealing illegitimate laws.

Critics, on the other hand, assert that Israel’s supreme court has no right to undo laws that were passed by democratically elected members of the Knesset. Since Israel has no constitution, they ask, on what basis can an Israeli court assert that a law is illegitimate?

This makes the whole system in danger of being seen as illegitimate. Though there are many reasons to worry about overreach in the other direction by the new Netanyahu coalition, some type of reform that will readjust the relationship between the branches of government seems reasonable.