Judicial Reform: Neither Unbridled Democracy Nor Rule By a Council of Wise Men

The proposed judicial reforms of the new Netanyahu government are roiling Israel.  Responsible leaders of the opposition speak of the “death of democracy” and even warn of civil war.  Similar claims pervade both the Israeli and foreign press.  Worst of all, military reservists who are vital to Israel’s defense are saying they will not serve if the government’s proposals regarding the judiciary pass.

As an American friend of Israel, this has begun to worry me.  For reasons I will explain, I don’t believe the government’s judicial reform proposals put Israeli democracy at risk.  But the disunity they have evoked does threaten the Jewish state.  Compromise is necessary.

And compromise that protects the legitimate interests of all Israelis is eminently possible.  But it will require Israeli Jews — the vast majority of whom believe both in Zionism and democracy — to insist that their political leaders put ego and political rivalries aside and form a coalition of the center-right and the center-left.  Because only such a coalition  will be able to implement the necessary changes in Israel’s political order.

Let me first address the government’s judicial reform proposals, which have aroused opposition so overstated as to border on hysteria.  Some of this opposition is undoubtedly political, but I think most is grounded in a lack of understanding of the proper role of the courts in a democracy.  It also reflects a failure to consider how the proposals compare to the judicial role in nations whose democratic status nobody would question.

The proposal that has attracted the most criticism would allow a majority vote in the Knesset to override a Supreme Court ruling invalidating a law presently on the books.

Different countries have different systems.  But it is simply false to suggest that an unchallengeable power of the judiciary to negate legislation passed by a country’s elected parliament is fundamental to democracy.

If it were, the United Kingdom would be the kind of tyranny that protesters claim now threatens Israel, since laws passed by Parliament cannot be invalidated by the courts.  Canada would likewise fail to qualify as a democratic nation, since in that country the Supreme Court’s constitutional decisions can be overridden by a parliamentary majority – the very system the Netanyahu government proposes for Israel.

Of course, in the United States courts do have the power to invalidate laws for inconsistency with the federal Constitution.  The Supreme Court’s constitutional rulings cannot be invalidated by legislation passed by Congress in the regular manner.

Opponents of the Netanyahu government’s judicial proposals, both in Israel and America, may cite the American system as embodying a necessary element of democracy.  But in doing so, they ignore a crucial difference between the countries’ legal regimes.  Israel does not have anything , including its Basic Laws, that may rightly be considered a constitution.

A constitution, as opposed to regular legislation, reflects broad societal agreement as to the rules of the game — that is, what powers the government has and what actions are beyond its power, no matter how large the public majorities that would support such actions.  The U.S. Constitution, which was subject to a rigorous ratification process, clearly meets this requirement. The original Constitution expressly provided that the document would only become effective when ratified by nine of the original 13 states.   And amendment of the U.S. Constitution requires a joint Congressional resolution supported by a two-thirds vote, followed by ratification by three quarters of the States.

Israel’s “Basic Laws,” which the country’s Supreme Court for the first time decided had constitutional stature in 1995, do not reflect such broad agreement.  Rather, they were enacted in exactly the same way as any other legislation — i.e.,  by a plurality of the Knesset members voting. Indeed, the “Basic Law: Human Dignity and Liberty” – which formed the basis for the Supreme Court’s “constitutional revolution”– did not did not even command a majority vote in the Knesset, passing by  only a 32–21 plurality.

On what grounds, then, can this Basic Law or the Court’s interpretation of it, be thought to have unalterable status that is insulated from the contrary actions of a later, democratically-elected parliament?  I submit that there is no democratic rationale that can justify such permanent status.  Therefore, opposition to the government’s proposals for judicial reform, however benignly motivated, is in fact anti-democratic.

Which does not mean that I am unsympathetic to the concerns of those who think the powers of the Supreme Court must be preserved as a bulwark against encroachments on civil liberties. It is perfectly reasonable to think that certain basic principles and freedoms should not be dependent on their ability to  command a political majority at any given moment.  But one cannot leave the definition of those basic principles and freedoms to a court of unelected judges without giving up on democracy and submitting to Judicial Rule  — or, called by another name, rule by Philosopher Kings or Platonic Guardians.

The solution to the problem of judicial reform is neither unbridled democracy nor rule by a Council of Wise Men.  It is for Israel to adopt a constitution.

You may scoff that achieving the necessary broad public agreement in a country as divided as Israel would be no more feasible today than it was when the task, though specifically mandated by Israel’s Declaration of Independence, was indefinitely put off to deal with a more urgent problem – that is, the invasion of five Arab armies.  But it is achievable if the parties of the center-right and center-left would unite to form a government of national unity.

No fundamental disagreement on critical issues, such as national security, precludes such a government.  What is necessary is for the parties, and most of all their leaders, to put aside the personal ambitions and animosities which, until now, have prevented such a sensible arrangement.

Not that negotiating the details of a constitution would be easy.  Hard decisions would need to be made.  Those would include,  for instance, the extent of accommodation that a constitution should afford to the Ultra-Orthodox, whose veto power the unity government would be intended to negate, but who, as members of the Jewish community, would be entitled to reasonable recognition and respect.  A process for ratification by an agreed supermajority of Israeli citizens would also need to be specified.

But with a constitution, both democracy and the assured protection of fundamental principles and rights, could be achieved.  It would be hard work, but that was also required of the American leaders who gathered in Philadelphia during the summer of 1787