Explainer: Israeli Judicial Reform – Threat to Democracy?

You probably have seen recent critiques in various mainstream media publications about “the threat to Israel’s democracy” presented by judicial and legal system reforms proposed by the Netanyahu coalition government. This piece will attempt to describe some of the factors in this very complex issue, leaning heavily on comparison to other democracies’ governing systems. Come to your own conclusions, but bipartisan reform is probably the wisest course for Israeli society.

In summary, by the standards of most other parliamentary democratic nations’ judicial arrangements, the Israeli system is an outlier, with a Supreme Court that possesses extraordinary powers relative to the elected legislature, including the ability of Supreme Court justices to veto the admission of new judges to the court, a power not seen in virtually any other democracy. Israel possesses a self-empowered system of judicial activism – in a nation with no real constitution —  that would make the Warren Court in the US blush. All of this supports the contention of Netanyahu’s right wing that reforms are needed to make the court “more democratic”, introduce checks and balances to the High Court’s powers, and move the balance back to the Knesset, Israel’s democratically-elected parliament.

On the other hand, extraneous overreach by right wing politicians in their initial reform proposals (which have yet to go through the sausage grinder of Knesset dealmaking and compromise), coupled with self-interest in some of these proposals, provides arguments against these reforms for adversaries of Netanyahu and supporters of the judicial status quo. Somewhat justifiably, they worry about what a “tyranny of the majority” could do to minority rights – an issue with which other parliamentary democracies cope successfully every day. Some opponents of reform argue that it is not fair to compare the Israeli system to other democracies, each with its own forms of checks and balances (for example, the UK and the US have bicameral systems, Israel only has one legislative house).  It is easy to see how those on the left in Israel, especially those unsophisticated in comparative constitutional law, would feel more comfortable with the status quo, opting for “results over process” — especially since the results are provided by a court that most commentators agree is institutionally progressive and therefore provides a natural “check” on right wing governments.

This anti-reform view, of course, ignores the most democratic form of natural check found in parliamentary systems — the reality that right wing overreach (for example) usually leads to centrist or left-wing governments being voted into power, who use THEIR democratically-given powers to reverse harmful rightist edicts.  That is how democracies work.

Reform Conversations Set Against a Background of Political Fratricide. As in the US, the political voices in Israel regarding most major issues are shrill, polarizing, and driven mostly by the extremes on both sides and their media supporters, think tanks and other nonprofit organizations. Of course, this makes it more difficult to achieve the types of give-and-take compromises that would probably be preferred by the great majority of Israelis. For Americans looking for an analogous situation, consider issues like  “immigration” or “crime”, and you’ll get the idea – but legal reform is infinitely more complex for the average person to develop a well-educated viewpoint.

Israel’s Judicial System –Betwixt In Between. Israel has a peculiarly hybrid system. It is a parliamentary democracy with no real constitution. Generally, in parliamentary democracies the high court lacks the power to overturn any laws. However, Israel’s system possesses a court-created power of judicial review and societal oversight that is not generally seen in a parliamentary democracy. And, as further described below, many aspects of Israel’s system of judicial review go beyond that of a true constitutional democracy, including the US.

The “Consitutional Revolution” and it’s Byproduct. Most of these court powers originated with then-Chief Justice Aharon Barak’s “constitutional revolution” in the early 90’s, essentially, according to his adversaries, usurping  power from the Knesset without any democratic check or balance. Some defenders of the system have argued that it was a necessary result, given the nature of Israel’s fractured parliamentary system, which required there be “an adult in the room” – the court, almost serving the role of benevolent despot in Israeli society.

Israel has no written constitution. The best fill-in is a series of “Basic Laws” passed over the years by the Knesset, governing issues like human rights, minority protection, national identity and governmental rights. The High Court uses these concepts liberally to not only rationalize legal decisions, but political ones as well, to impose policy and up-end democratically-elected government decisions. The Knesset’s Deposit Law (to temporarily withhold a percentage of wages from asylum-seekers until they leave the country) was deemed a violation of human rights, while (taxpayer-funded) public broadcasting was touted by the court as a civil “right” that the Knesset could not remove. Several years ago the Israeli High Court overturned four laws in sequence regarding illegal immigrants, including one with a rare 80 vote bipartisan Knesset consensus (two- thirds of the 120 seat legislature!).

As a result of  Barak’s constitutional revolution, the court not only assumed the right to interpret and overturn ordinary parliamentary laws (of which it has invalidated twenty-two over the years, and essentially neutered others), but also extended in more recent years to the ability to overturn the Basic Laws, a right which theretofore did not exist (see this excellent piece and this one regarding the ability of the court to strike down the Jewish Nation-State Basic Law). Again, in parliamentary democracies the high court lacks the power to overturn any laws, and in constitutional democracies like the US they don’t have the right to abrogate elements of the constitution itself.

The way Israel’s system exists today, if the Knesset were to pass a new Basic Law modifying or even abrogating a prior Basic Law passed by itself or an earlier Knesset, the Supreme Court is technically free to cancel that new Basic Law, without any recourse of the people (i.e., the Knesset) to the Supreme Court’s action. The right wing maintains that this is a fundamentally undemocratic and unchecked power, and in its package of judiciary reform proposals seeks to essentially block the High Court from invalidating Basic Laws.

The High Court may evaluate laws and government actions not only on the basis of legality (i.e., does the action violate a law, like in the US and most other democracies), but also on the basis of “reasonableness”, in the court’s judgment, but without needing to construe the intent of the Knesset when it passed the law. In the US, by contrast, attempts are made by the Supreme Court to interpret the law in accordance with the legislative history and intent. This reasonableness power by the Israeli Supreme Court has resulted in abrogation of various government decisions over the years in spite of legislation to the contrary, is subject to the whims of the court, and is a virtually unheard of power among the judiciaries of the world’s democracies.

There are other dubious undemocratic elements (to an American lawyer’s eye) of the Israeli system.  For instance, US, UK, Canadian and other common law courts require that a plaintiff in an action have “standing” to bring a case – that is, they must show an injury, in fact, to their legal interests and a connection to the defendant. Standing is not required to bring an action before the Supreme Court in Israel, allowing lawsuits by petitioners not personally injured and even by non-Israeli citizens, such as foreign political action groups over alleged human rights violations.

In addition, each ministry in the government, led by a member of the democratically elected ruling coalition government, has its own chief legal “advisor”, who are career bureaucrats and not political appointees. They fall under the aegis of the “Legal Counsel to the Government” – i.e., the attorney general — a high ranking civil servant (not a political appointee like in the US), to preserve their independence from political influence. While that would seem sensible and non-objectionable, the High Court has held that the democratically-elected ministers of these ministries cannot take actions that are contrary to the “advice” of these advisers. This essentially allows bureaucrats to control government policy, in spite of the will of the electorate.  In the US, in contrast, the Secretary of the Interior, for example, or the president, can take actions that are contrary to the advice of career legal bureaucrats – to be potentially stopped by the courts as a result of a lawsuit if found to be illegal.

One of the governing coalition’s current reform proposals is a law to make the “advice” of these legal advisors merely advice, and nothing more, and allow ministers to hire their own legal advisors (as the president of the United States, for instance, does with his appointment of the Attorney General). This has raised the hackles of the opposition as another attempt to subvert the legal authorities.

The Override Clause. The proposed “override clause” is perhaps the easiest issue for the layman to understand (and most notorious of the conflicts regarding current judicial reform proposals). This is essentially a proposal to allow the Knesset to overrule any Supreme Court ruling that an ordinary law is “unconstitutional” (e.g., is against the court’s broad interpretation of the Basic Laws). The override proposal is loosely modelled on an override law in Canada’s parliamentary democracy, which was designed to protect the rights of the provinces from federal power when a constitution was adopted.

The current governing coalition override proposal provides that a simple majority of 61 out of the 120 Knesset members could override a ruling. Most people supportive of some type of reform, perhaps foremost being opposition Knesset member and former justice minister Gidon Saar, believe that some form of supermajority should be required for override, like 70 or 75 votes. The left is generally against any override, arguing that this is a way for the majority to crush the rights of the minority. The current government counters that to do otherwise would be to enable an unelected, anti-democratic institution, the High Court, to subvert the will of the majority since it leaves no check on the High Court’s power.

Supreme Court Justice Selection. This leads to the most surprising aspect of the Israeli judicial system, virtually unheard of in any democracy – a majority of the nine person Judicial Selection Committee  who elect Supreme Court justices are not democratically elected, their deliberations are not publicly disclosed, and  the High Court has a veto power on the appointment of justices to the high court, permitting perpetuation of the court’s culture and biases.  The system was previously worse – Saar was able to reform the system several years ago, but selection of a Supreme Court justice still requires a supermajority of 7 of 9 members of the Judicial Selection Committee, which includes the chief justice and two other justices of the Supreme Court.  Again, High Court justices in virtually every other democracy are selected by democratically elected representatives.

The Deri Case — Bad Facts Appear to Justify Bad Law. Until now in this article, one could easily conclude that some level of judicial reform would probably be beneficial to Israeli democracy. But clouding any thoughtful debate on the core issues at play – the nature of Israel’s judicial system and its democracy — is the bad will and mistrust created by the fact that some of these reforms are claimed by some to be engineered to personally benefit Netanyahu in connection with his corruption trials, and would have allowed a member of Netanyahu’s coalition, Shas head Aryeh Deri, twice convicted of tax crimes, to serve in the government as health and Interior minister. The High Court by a “bipartisan” 10-1 vote, has essentially ruled that Netanyahu must fire Deri, which Netanyahu has done (so much for claims that Netanyahu would “subvert” the legal system over this issue). The court came to its decision primarily upon the basis of the “unreasonableness” that Deri be permitted to serve as a minister (the dangers and arbitrariness of the reasonableness standard are discussed above), and secondarily on an estoppel argument that he broke his plea bargain deal to avoid jail for tax offenses in return for a promise not to be in public service.

This case had enough issues to be studied for half a semester in a comparative constitutional law course. In the US, the district attorney would simply return to court with the plea agreement, argue that Deri had broken it and therefore it was void and he should be sentenced to jail (a result which would have barred him from being a minister).

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These issues are obviously very complicated, and reasonable minds can differ as to the right balance on many of these reform proposals – and bipartisan compromise is called for. But several things are clear – reforms could bring Israel’s system more in line with that of other democracies, and the loud attacks on these reforms as leading to the death of Israeli democracy are misinformed, or driven by partisan or anti-Israel agendas.

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Mr. Blum is Chairman of the Board of Directors of HonestReporting, Inc., the media watchdog organization. The views expressed herein are his own and not those of HonestReporting.