Israeli Judicial Overall Proposals are Deeply Flawed

It is abundantly clear that the judicial reform proposed by the new Israeli government is primarily and opportunistically driven by self-interest and a desire to maximize the political power enjoyed by certain sectors of society. If that was not the case, legislative initiatives such as the ‘Gifts Law’ (allowing unfettered offering of gifts to public servants), the ‘French Law’ (shielding the prime minister from prosecution), the law against recordings (preventing journalists from publicizing recordings of politicians without their consent), the ‘Deri law’ (paving the way for convicted politicians to serve as government ministers), the Police Investigations Department law (diminishing oversight of the police in cases of police violence), and the law to gain control of the Central Elections Committee would have not seen the light of day.

Advocates of the radical institutional re-modelling on the policy agenda, however, also argue, without any foundation, that their strategy is inspired by democratic imperatives. Specifically, they assert that Israel’s judiciary, particularly the Supreme Court, is an unrepresentative entity that exercises excessive power without being subject to any tangible democratic-style constraints. They typically invoke in highly favorable terms the United States experience featuring the nomination by the president and confirmation by the Senate of federal judges’ appointments. Such politically underpinned practices are portrayed by the Israeli advocates of judicial overhaul as the norm rather than the exception.

This entire set of arguments is without any analytical and factual merit. First, the judiciary belongs to a category of non-majoritarian institutions that are not expected to be representative in the strict of the term but are supposed to counter the drawbacks of their representative counterparts such as capture by special interests, corruption, gridlock, horse-trading, inadequate protection of minority rights and neglected groups, parochialism, and short-termism. Central banks also fall into this category. The governing bodies of the Bank of Israel and the US Federal Reserve System, for example, operate autonomously without being directly accountable to the public and mirroring its social composition. Professional excellence and personal suitability should be the key factors in judicial appointments rather than demographic and political considerations. Should Israel’s Supreme Court be packed with young people just because they constitute a large segment of the population?

Second, politicization of the judicial appointment process is by no means a broadly embraced practice. Importantly, countries that top the World Justice Project (WJP) rule of law index go to great lengths to minimize political involvement in this institutional context. Denmark heads the rankings and its Supreme Court judges are appointed on the recommendation of an independent council consisting of a Supreme Court judge, a high court judge, a district court judge, a lawyer, and two representatives of the public. Given its economic and social performance, this apolitical system must have served Denmark well and this is probably true of its Scandinavian neighbours whose judicial appointment processes follow a generally similar path and who rank high on the WJP rule of law index.

Third, interestingly, this group of countries also tops the World Economic Forum (WEF) judicial independence index, with Finland placed above Denmark in terms of that narrower criterion. Israel ranks 18th, a respectable position but not necessarily indicative of excessive de facto judicial power overall. There may be areas of judicial activity where the reach of its supreme court may need to be curtailed but, comparatively speaking, it is apparently not an institution that exercises boundless authority and whose role in the country’s governance regime ought to be significantly redefined, employing a heavy hammer rather than a light stiletto.

Fourth, the comparisons with the US are inappropriate and unproductive. Unlike its close and valuable ally, Israel has no constitution and no effective separation of powers between the executive and legislative branches of government. To make matters worse, its legislators are not directly elected and thus, ultimately, are heavily dependent on their party leaders. This has turned the Likud, Israel’s largest party, into a machine that, figuratively speaking, dances to the tune of one person, the current prime minister who operates in a quasi-dictatorial fashion. Moreover, the US is not a suitable model for would-be reformers of the judicial system. It is deemed a flawed democracy by the Economist Intelligence Unit (EIU; the verdict on Israel is similar) and ranks 28th, below Uruguay, on the WJP rule of law index and 25th on the WEF judicial independence index. Public opinion surveys reflect Israeli people’s strong dissatisfaction with the judicial reform proposals and a moderate dissatisfaction with the status quo. If an overhaul of the system is called for, a thorough and wide-ranging exploration of the available and feasible options is required.

–

Roda Mushkat is a Professor of International Law at the Paul H. Nitze School of Advanced International Studies, Johns Hopkins University and Honorary Professor of Law at the Faculty of Law, University of Hong Kong