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Is Judicial Reform a Threat to Israeli Democracy?

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avatar by Alex Safian

Opinion

Supreme Court justices and president Esther Hayut arrive to the courtroom of the Supreme Court in Jerusalem. Photo: Yonatan Sindel/Flash90.

JNS.org – If you believe certain prominent outlets and pundits, Israel’s recent elections foreshadow the demise of democracy and the rule of law in the country, all because the new government has called for fundamental legal reforms to fix what it views as the vast overreach of the Supreme Court.

Leading the reform movement is the new justice minister, Yariv Levin, formerly deputy chairman of the Israel Bar Association and twice elected Knesset speaker by his colleagues. Levin explained before the elections that their goal is to end “rule by judges” and to limit the role of the attorney general:

“The situation of ‘judicial rule’ is not democracy,” Levin told Army Radio, adding that “the time has come for clear legislation to define the authority of the attorney general, which is supposed to advise, and not make decisions instead of the government, not dictate to it.”

After the elections, Levin laid out further details of the reform plan in a press conference at the Knesset, explaining that the Supreme Court would still have a limited power to strike down legislation. Media reaction to the reform plan has been fierce, with New York Times columnist and habitual Israel-critic Thomas Friedman for instance charging that:

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“Netanyahu’s coalition has also attacked the vital independent institutions that underpin Israel’s democracy and are responsible for, among other things, protecting minority rights. That is, the lower court system, the media and, most of all, the Supreme Court, which Netanyahu and his allies want brought under the political control of the right.”

A lead New York Times editorial, “The Ideal of Democracy in a Jewish State Is in Jeopardy,” denounced the incoming government, in large part because:

“Among the targets of the new leaders is the Israeli Supreme Court, which, in the absence of a national constitution, has served to weigh government actions against international law and the Israeli state’s own traditions and values. The nationalists would diminish this authority by voting to give themselves the power to override Supreme Court decisions.”

Many news reports echoed these claims, such as a Los Angeles Times report quoting an Israeli analyst who charged the reforms would “politicize the judiciary and weaken the checks and balances that exist between the branches of government, and serve as fundamental components of Israeli democracy.”

Some retired Supreme Court justices were also highly critical of the plan. For example, Menachem Mazuz declared that if the reforms are instituted: “I don’t know of anything in the literature of political science that will enable [such] a country to be considered a democracy.” Former Supreme Court president Aharon Barak called it “a war against democracy.”

Is this chorus of doom justified? Is judicial review and virtually unfettered judicial power really the norm in parliamentary democracies, as the critics imply? And are there other former Supreme Court judges who might agree with the spirit of the reforms?

The question of “override”: limiting or ending judicial review

A supreme court without unlimited power to cancel legislation is not exactly unknown. For example, in the United Kingdom—among the most influential parliamentary democracies in the world, and thanks to the Palestine Mandate the model adopted by the Israeli government—the parliament is supreme. According to the UK Parliament website:

“Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.”

In accord with this principle of “parliamentary sovereignty” the U.K.’s Supreme Court website states:

“Unlike some Supreme Courts in other parts of the world, the UK Supreme Court does not have the power to ‘strike down’ legislation passed by the UK Parliament. It is the Court’s role to interpret the law and develop it where necessary, rather than formulate public policy.”

Indeed, until October 2009 the United Kingdom didn’t even have a Supreme Court, with the Appellate Committee of the House of Lords serving as the highest court in the land.

In other words, the critics are leveling the astounding charge that Israeli democracy would be under grave threat—according to Mazuz’s fatal threat—if the country became more like the United Kingdom.

And contrary to portrayals of the proposed judicial reform as dangerous and unprecedented, the reverse is true; it was the court’s invention of the right of judicial review that was unprecedented. The reforms would only partially restore the pre-1992 status quo.

In that year, the activist justice and later president of the Supreme Court, the previously mentioned Aharon Barak, unexpectedly proclaimed that the passage of certain “Basic Laws” by the Knesset had given the Supreme Court the right to overrule the Knesset, handing the judges what Barak termed “nonconventional weapons.”

However, according to then MK Michael Eitan no one at the time thought that by passing these Basic Laws the Knesset was creating a constitution and with it a right of judicial review for the court:

“It’s the first time I hear that a country can get a constitution retroactively. At the time of the legislation, the members of the Knesset did not know that they were adopting a constitution for the State of Israel, nor did anyone else… In one judgment the Supreme Court combined two errors: declaring that we have a constitution and that from this day on the Court is also going to have the jurisdiction to nullify laws of the Israeli Knesset.” (“Judicial Review, a Comparative Perspective: Israel, Canada, and the United States,” 31 Cardozo Law Review 2393 [2010] at 2422.)

Barak’s eagerness to invent and use such legal weapons led Richard Posner, the celebrated scholar and former federal judge, to criticize him as an “enlightened despot,” a “legal buccaneer” and “usurpative.”

These weapons were first deployed by the Supreme Court in the case of United Mizrahi Bank v. Migdal Cooperative Village, signifying that the justices had indeed conjured for themselves a right of judicial review, despite the fact that, as noted, this “right” had no basis in Israeli law or tradition.

Another example of a respected democracy with a sovereign parliament is New Zealand, as explained by that country’s Justice Ministry:

“The Judiciary cannot interfere with decisions of Parliament (the Legislature), such as the decision to pass a law. However, the Judiciary can review the actions of the Executive to see whether they acted within the powers given to them by legislation. This is called judicial review.”

Note that this judicial review is restricted to actions of the executive branch of government, but not the parliament, or legislative branch, which remains supreme.

And consider Canada: While that country’s Supreme Court never tried to grab a right of judicial review, it was granted a limited version when parliament passed the Canadian Charter of Rights and Freedoms in 1982. Limited, because that charter’s Section 33 includes an override, or “notwithstanding” clause, which allows the federal parliament and even provincial legislatures to pass legislation overriding the Supreme Court’s judicial review for five-year periods.

“It allows a government to pass a law that does something that the courts have said violates rights and is not justified,” said University of Ottawa associate law professor Michael Pal, according to a CTV report.

If a parliament or legislature is successful in invoking Section 33, the legislation they pass to override the Charter has a maximum five-year time limit. Upon its expiry, the government would have to either reenact the legislation, or it would no longer stand.

Restoring a measure of parliamentary sovereignty to Israel’s Knesset—an absolute right it had for the first 44 years of the country’s existence—therefore hardly seems radical, unprecedented, or dangerous.

The question of judicial appointments in Israel

Proposed reforms of the judicial appointments system have also, as noted, come under severe criticism.

Currently, a nine-member Judicial Appointments Committee appoints judges, including Supreme Court judges. The committee consists of three members of the Supreme Court, including the president, two members of the Bar Association, the Justice Minister, another minister and two other Knesset members, traditionally one from the ruling coalition and one from the opposition. Going against at least the spirit of democracy, this committee lacks transparency—the public has no idea of how and why its decisions are made.

A successful appointment requires seven votes, giving the justices a virtual veto over appointments to both the Supreme Court and lower courts, which is enhanced because members of the Bar Association may well have to practice before the Supreme Court and the lower courts, and thus have great incentive to vote with the justices.

Furthermore, according to a study by the Israeli NGO The Movement for Governance and Democracy, the Israeli appointments system is virtually unique in the world:

“Among the large democratic countries, there is not a single country in which the method of appointing judges is similar to the situation in Israel. Here, unelected parties such as the judges and representatives of the Bar Association have a majority in the committee, while the public representatives are in the minority and need deals and agreements to approve the appointment of a judge … In 30 countries, including the United States and France, the judiciary has no place in the appointment of judges.

“In these countries, it is the elected representatives of the executive and legislative branches (for example, the president with the approval of the Senate) who appoint judges. In nine countries, such as Canada and Sweden, the authority to appoint judges rests with the executive authority. In Switzerland and Belgium, the power of appointment rests with the legislative authority.”

That is, once again the critics level the astonishing charge that Israeli democracy will be under grave threat if the country becomes more like the United States, France, Canada, Sweden, Switzerland and Belgium, to name just a few fellow democracies.

While some Israeli academics have lauded the appointments system as clean and above politics, in reality there will always be a temptation to influence the outcome by making deals with members of the committee.

Unfortunately, this is not hypothetical—there have already been credible charges that a person seeking appointment as a judge became sexually involved with an extremely prominent lawyer with influence over the committee and with an MK on the committee. (See “Ex-Israel Bar Chief, Judge Charged With Bribery in Bench-for-sex Case,” “TV: Police probed ‘improper relations’ between Kahlon, judge he helped appoint,” and “Despite ‘Serious Findings,’ Israel Closes Case in Sex for Judgeship Scandal.“)

Defending the current system on its alleged purity requires a short memory, to put it mildly.

Furthermore, in giving current Supreme Court judges a veto over their replacements, the system almost guarantees that the court will be captured by a dominant ideology, to the exclusion of dissenting views and voices.

Again, this is not hypothetical—such exclusion happened with the unsuccessful nomination of Ruth Gavison to the Supreme Court in 2005. Gavison was a preeminent law professor at Hebrew University who won many prizes recognizing her achievements, including the state’s highest honor, the Israel Prize, and who was internationally respected for her intellect and integrity.

Politically Gavison was very much on the left—for example, she co-founded and led the Israeli equivalent of the ACLU, the Association for Civil Rights in Israel—but she openly opposed judicial activism and rule by judges as anti-democratic and damaging to the court.

Writing in 1999, before she was nominated for a position on the court, Gavison put it this way:

“My conclusion is that the 1992 laws did not create a revolution. If there was a revolution, it was the creation primarily of the court itself, led by its President Barak. Two questions arise. First, is this development pushing the idea of a constitution and judicial review against the background of the constitutional reality good for Israel? Second, in a democracy, should a process like this be led by the court itself? There is some debate concerning both questions. I tend to give negative answers to both of them.”

While Gavison favored a constitution for Israel, she argued persuasively that it was counterproductive for one to be forced upon an unsuspecting Knesset and public:

“Israel is a rifted society. A constitutional order in a society like that should be a matter of some give and take on framework principles, adopted as a package deal with checks and balances, after some public debate, in a special process, and based on a broad consensus. All of these features of constitution-making were absent in Israel. In fact, the 1992 Basic Laws were passed with small attendance and with a rather slim majority. Clearly, the legislation did not look much like a revolution of any sort.”

The result, she argued, was that:

“At the moment, what seems to be happening is that the rifts in Israeli society, which until now were hardly noticeable with regard to the court, have now reached the court itself. The court is now perceived by a larger part of the population as a political player like any other, and not a neutral body seeking to be a part of the framework adhered to by all, irrespective of their partisan allegiances. Even if the pressure to politicize appointments can be resisted, it is going to be hard to re-establish the vision of the court as a defender of all.”

Gavison’s fears for the legitimacy of the court, including the appointments system, written more than 20 years ago, have proven prescient, and only underscore why she should have been on the court.

But in a strike against intellectual diversity, Barak resolved with his colleagues to keep Gavison off the bench, because he feared she would be able to create a consensus on the court against judicial activism. (For more on this see “Aharon Barak’s Selective Memory.”)

Barak was probably right in this. Gavison was more than a match for him intellectually, and was known as a consensus builder who could find common ground even with those who strongly disagreed with her.

That a scholar like Gavison was kept off the court for such partisan and petty reasons is the best argument for ending the practice of allowing Supreme Court justices to even have a say regarding their successors, much less a veto.

There seems no question that were Gavison alive today, she would support both rolling back the right of judicial review that Barak conjured out of thin air and reforming Israeli judicial appointments to align them more closely with the system in fellow democracies.

Several retired Supreme Court justices were also deeply troubled by the extremely activist court that Justice Barak created, and that much of the media still defends.

For example, the late Supreme Court president Moshe Landau echoed much of Gavison’s criticism in an Haaretz interview:

“I think that Supreme Court President Aharon Barak has not, and does not, accept the rightful place that the court should have among the various authorities in our regime…[T]he court is getting in over its head, in a morass of political opinions and beliefs. And this is dangerous both for the state and for the court. It’s dangerous for the state because it intensifies the social rifts. And it’s dangerous for the court because it leads the court to lose the main foundation upon which it bases its standing: the faith in the impartiality of the legal system concerning matters of public disagreement.

“When the Basic Laws were passed in the Knesset in 1992, a large portion of the Knesset members had no idea at all what the laws that they were affirming meant, and only several dozen members voted—less than half the Knesset plenum. This process was absolutely not serious. It was a deception.

“The next stage in the process was when the court relied on the new Basic Laws to grant itself the authority to invalidate primary Knesset legislation. It did this when the nine justices wrote the decision in the 1995 Gal case [Bank Hamizrahi v. Migdal]. And since then, bit by bit, the court has been taking control of Knesset legislation.”

Similarly, former Supreme Court president Meir Shamgar told an interviewer:

“Not everything is justiciable. There are topics that are the province of other branches—the legislative or the executive…. I think that separation of powers should be maintained and that each branch should be allowed to deal with its own matters…. I do not think that there is a tendency to weaken the court. There is a tendency to prevent the court from dealing with matters that it should not deal with.” (“Judicial Review, a Comparative Perspective: Israel, Canada, and the United States,” 31 Cardozo Law Review 2393 (2010) at 2447.)

Judicial reform is a contentious issue in Israel and the diaspora, which underscores why it should be discussed rationally and soberly, without hyperbolic and potentially dangerous charges that it would mark the end of Israeli democracy. The Supreme Court’s role was a major issue in the elections that produced this new government in Israel, and reform was supported by many MK’s, including David Amsalem, Amir Ohana and particularly Yariv Levin.

“Elections have consequences”—so famously said the newly elected President Barack Obama when his proposals were challenged by Republicans. Obama was right, but he would have been wise to consider Gavison’s insight that major changes should be part of a package deal, with give-and-take and based on a broad consensus. The contending parties in the judicial reform debate might benefit from listening to the words of both Obama and Gavison.

Alex Safian is associate director of the Committee for Accuracy in Middle East Reporting in America (CAMERA).

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