Israel Plans To Scrap Judicial Review. But Who’s Really To Blame?

Many years ago (like most memories before making aliyah, it feels like another lifetime), I sat in a classroom at an Irish university learning about the fundamentals of legal systems. 

While my law degree didn’t prove the springboard into a successful career as a legal high-flyer that my family probably hoped it would, it did provide a basic framework into the operation of legal systems (jurisprudence and constitutional law were my favorite modules). And it gave me some pause for thought about the role systems of laws have to play in shaping the contours of society. 

Public debate in Israel has been rife with two words lately — judicial review. 

Their ongoing mention has thrown me straight back to those old days sitting in a library thumbing through huge legal tomes (they’re always huge); keeping myself awake with endless cans of Monster Energy (this is one vice I’ve thankfully managed to ditch); and hoping that I would pass the exam so that I could move on to thinking about lighter subjects during the summer months. 

Is Israeli Democracy Truly “Sacred” Or Do We Just Really Like Saying That?

The current political upheavals that we are witnessing in Israel have been cast, by their opponents, as an assault on what they conceive to be the sacred institution of Israeli democracy. 

Israeli democracy finds its most ardent supporters on the political left, which is also why Israel’s rapid lurch to the far right has fanned the flames of what feels, at times, like a civil war in the brewing (although NGOs have also coopted themselves to the cause. One prominent opponent of the tabled reforms that will surprise nobody: The Israeli Democracy Institute).

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Besides arguing for the superiority of democracy over the alternatives on the table — autocracy, theocracy, or a classically Middle Eastern admixture of the two — those railing against the collapse of Israeli democracy commonly base their arguments on the vision for the country set out by its secular Zionist pioneers in 1948 and the period leading up to the formation of the state.

Israel’s founders, they say, always envisioned the country as being a Jewish state in character but not entirely in its legal tradition (specifically one based upon Jewish religious law, called halacha). The game plan, it’s argued, has always been to model Western democracy in a unique way that remains faithful, at the same time, to the unique cultural and religious background of Jewish tradition. And to be exemplary in achieving these two goals that must be forced, at all costs, into a rigid and uncompromising compatibility. 

According to this logic, any dramatic changes to this initial conception of the state — such as summarily doing away with judicial review as a part of its governance — is akin to spitting in the face of those who cleared swamps of malaria so that we could be debating this on the streets of Tel Aviv and Jerusalem or The Times of Israel. An act of gross betrayal. Something we must not let happen at any cost. 

Those on the other side of the argument — probably unnecessary disclaimer: this is broadly where I sit— would argue that there’s nothing sacred or unchallengeable about democracy as a system of governance (even if, to paraphrase Churchill, one maintains that it’s the least bad option out there).

But these are the battle lines as they’ve roughly, so far, been drawn.

Would Ending Judicial Review Mean The “Death” Of Israeli Democracy Or Just A Change In Its Terms?

A street in downtown Jerusalem. Photo: Daniel Rosehill.

At the weekly protests that have taken place throughout Israel over the past month — often dragging more than 100,000 protesters out of their homes onto rainy winter streets — the most striking and recurring motif has been lamenting the impending “death” of democracy as an institution. 

Those protesting — and currying support for the cause — insist that we find ourselves currently in a perilous position of nationhood: Perched at the top of a fast precipice with Israel’s demise at its bottom and nothing now standing to arrest our freefall into the abyss of banana republics, Middle Eastern backwaters, and other examples of failed states. For if one’s vision of and support for Israel hinges upon its application of democracy, then the current changes do, indeed, herald cause for huge concern.

The likely objectives of the protesters remain unclear – excluding the possibility of a coup d’état, even these successive large turnouts don’t have the power to force legal change. But in the coverage that has surrounded them and the debates they have provoked, some fundamental questions have gone largely unaddressed. 

The Questions That Need To Be Asked Beyond The Slogans

While the debate about judicial review in Israel has been dominated by sloganeering, we haven’t had a chance to hear much discussion of some very important questions that really underpin it and why Israel is potentially headed in this direction. 

I suggest those to be:

• Testing critically, and ideally empirically, the important premise that democracy — and specifically one involving a system of judicial review —is indeed what the vast majority of Israeli citizens want as their system of governance. If it is not, maintaining judicial review is … well, somewhat undemocratic. 
• Asking that if democracy is a system of governance that gives expression to the will of the majority of a country’s citizens, then what happens when a majority of the electorate decides that it is no longer the model they wish to pursue?
• If those favoring a halachic-run state (Hebrew: medinat hahalacha) outbirth and outnumber their secular counterparts, is some kind of theocracy not the inevitable outgrowth of Israel’s democratic beginnings?

Some more fundamental questions that, I believe, merit far more prominent discussion than they have enjoyed in the public debate to date:

• Is judicial review such an essential feature of the checks and balances system of a democracy that one that lacks it must be considered to be no longer democratic?
• Can we accept that — just as there are different flavors of ice cream in the world — democracy comes in more than one variant? And that a democracy bereft of the function of judicial review is still a form of government worthy of being called by that name?
• Surveying the landscape right now: are there examples of countries that remain democratic — if we accept that to mean the holding of regular free elections – and which do not have a process for judicial/constitutional review? Who are they?
• And if we wish to compare our situation to that of theirs, how do they balance power between the three classic organs of government to prevent abuse of power and the emergence of dictatorships?

Democracies Can Exist Without Judicial Review 

The most contentious aspect of the tabled reforms in Israel has been the proposal to prevent the Supreme Court from striking down decisions of the legislature. 

In other words: if the Knesset passes a law, then it will enacted, as intended into law. The ability of actors to institute lawsuits against the State through the court system to challenge the legality of such laws will be revoked. 

The implications of this proposed change may at first glance seem technical. But they are both stark and far-reaching. 

A government can, for instance, table and pass legislation fine-tuned to the needs of one individual (such as Aryeh Deri MK). Or it can choose to make fundamental changes to the character of the state through rushing legislation to that effect through the chamber. When an ideological obstacle is removed from the picture (such as an activist supreme court at odds with the outlook of the government) all this rearchitecting work becomes much easier. We’ve already seen worrying evidence of how rapidly the current government intends exploiting all these vulnerabilities.

Because democracies necessarily involve a few representing a many, for most supporters of democracy, these kind of possibilities need to be somehow taken off the table as possibilities.

Otherwise, the will of the people — and the intention of democracies is after all to reflect that — can be quickly transposed into “advancing the personal interests of the head of the party and his/her cronies.”

Democracy, it turns out, is a fickle beast requiring constant tending and not a switch that can be turned on and left to its own devices. It is also highly susceptible to the abuse of power – which is why most democracies invest great thought into devising so-called ‘checks and balances’ mechanisms to prevent exactly this. 

Now here’s the part that gives me at least some confidence that the direction Israel is heading in isn’t the express line to an autocracy. 

I would suggest that if Israel can bolster other processes as a counterweight to the neutering of the judicial review function then there’s still hope that it can avoid the doomsday fate that many are foreseeing – even if judicial review does, indeed, get the axe. 

While Americans have a marked tendency to assume and regard that judicial review is an essential part of democracy — in the US, the highest court in the land has seen this right as its prerogative since the early nineteenth century, Supreme Court justices are public figures, and their rulings are hotly debated in the media — a whistlestop tour of present day legal geography proves that this is not, in fact, the case. 

New Zealand, for one, has no judicial review. The constitution of the Netherlands is so adverse to the idea that it forbids it. Finland, Sweden, and Switzerland — commonly used as examples of model states with traditions of innovative policymaking — are examples of countries that also do relatively fine without it. 

The difference between Israel and these countries?

• None of them are involved in an ongoing fight for their survival which requires the making of hugely difficult decisions.
• They don’t, to the best of my knowledge, house different groups comprising substantial swathes of the population who hold vastly differing and conflicting visions for the fundamental makeup of their country. 
• Only New Zealand, among them, has an uncodified constitution. Israel’s surrogate for a constitution – The Basic Laws – is a collection of 13 statutes which set down fundamental principles of the State. Some of these can only be changed by a supermajority. 
• At least some of these countries have a constitutionally enshrined process of referendum, thereby bolstering the power of the people over their elected representatives. So-called direct democracy is another powerful means of circumventing the potential rule-by-mob phenomenon that tends to emerge (as it is now in Israel) in environments where parties can only realistically govern by coalition but where coalition partners are also the result of inscrutable political jockeying that is unseen and unknowable to its potential voters. 

Reframing The Cause Of Israel’s Impending Democratic Deficit 

In light of all the above, I would suggest that another way of looking at the worrisome path Israel seems to be shuttling down is as follows:

Israel’s plans to do away with judicial review do not represent a catastrophic and fundamental threat to its nature as a democracy.

Rather, the proposed changes seek to undermine democracy in Israel as it has existed up to now.

They would serve to expedite a quick transition towards a more autocratic means of governance. But in doing so they are merely highlighting problems that have been lingering just below the surface since the State’s foundation. 

Preexisting features of governance in Israel — the lack of a single constitution as a clear source of supreme law, conflicting and unresolved natures about fundamental questions of state among large sectors of its population, the lack of a guaranteed process for referenda to safeguard the integrity of that document, and all these things taken together — created, and continue to create, the perfect bedrock for a shift to autocracy to take place.

Unless this is changed, Israel’s system of governance will continue to be fertile territory for strongmen (and strongwomen) to take the country, essentially, in the direction they and their political bedfellows of the day personally choose. True democracy will continue to be inverted into the rule of one-plus-friends.

I don’t believe that the current political developments presage the death knell to Israeli democracy. I see them, rather, as part of a problematic and inevitable transition towards autocratic rule that’s been decades in the making. The threat to judicial review may be today’s pitched battle. But there’s a much larger war at stake than this too.  

The rights of the electorate in Israel — to have the actions of government reflect their will and to expect that reasonable safeguards against abuses of power are instituted and remain in place — need to be elevated through the rationalization of our disparate system of Basic Laws into a single source of higher law with guaranteed plebiscites over any possible change in terms.