Joel Silber

Majority Rule And The Proposed Judicial Reform

In a Times Of Israel blog, “This Reform Will End Limitless Power For Unelected Elites,” Dr. Moshe Koppel of the Kohelet Policy Forum argues that the governing coalition’s judicial reform proposals seek to readjust the balance between the branches of government so that an unelected judiciary will not usurp the legislative power and prerogatives of the elected representatives of the people. In other words, the reform stands first and foremost for the cardinal tenet of democracy: majority rule.

Even so, Dr. Koppel is open to striking a compromise with those who contend that the reform as currently proposed goes too far and in effect will eviscerate judicial review of actions of the Knesset and the executive branch, thus endangering the country’s democratic character rather than safeguarding it.  Politicians on both sides of the debate have stated a willingness to discuss the matter, although for tactical reasons (or simply pride) no one, at least for now, seems ready to make the first move.

I believe judicial reform is indeed necessary. The Supreme Court has at times overstepped its authority, and the Attorney General should not have “veto power” concerning the legality of governmental decision-making. Further,  I do not share the view of many opponents of the current Levin-Rotman proposals that wholesale adoption of those proposals would bring us to the brink of dictatorship or spell the end of democracy.

Still, I think those proposals overly tilt the balance between the legislature and the judiciary in favor of the former. Judges may be unelected, but once appointed they are also not up for re-election, and do not encounter the pressures of politicians who are motivated by personal ambition and populism.

My own recommendations would be to circumscribe but not eliminate “unreasonableness” (or more accurately, “extreme unreasonableness”) as a basis for the invalidation of governmental and administrative decisions; to have a judicial appointment process that gives a governing coalition a powerful say, but not effective exclusive control, over judicial appointments; and to create a  Knesset “override” of a Court judgment invalidating a law (the so-called “piskat hitgabrut”) but only by a consensus-reflecting supermajority of, say, 75 members, not a simple majority or anything close to it.

But my purpose here is not to address the specific proposals under discussion. Rather it is to expose the disingenuousness and cynicism of the coalition which, to paraphrase the Psalmist, has the high praise of democracy and majority rule in their mouths, but an anti-democratic and anti-majoritarian sword in their hand.

Specifically, the coalition lacks the legitimacy to push through its proposed reform, instead of a non-partisan compromise, for three reasons:

  • First, in a democracy, the checks and balances among the branches of government are properly adopted only by a consensus of the populace or their representatives, not by a narrow majority from only one side of the political spectrum.
  • Second, there is not in fact a majority – even a narrow one – that favors the current proposals on their merits, since significant elements in the coalition itself support those proposals only because they can manipulate them to advance their own personal and/or parochial interests.
  • Third, those parochial interests involve the passage of legislation which would discriminate against a large majority of Israel’s citizenry.

Dr. Koppel argues, correctly, that the Court should have no authority to strike down a “Basic Law,” if a Basic Law is constitutional in nature. But what makes a law “basic” is not a label slapped on it by the Knesset in order to make it impervious to judicial review; rather, it is precisely the fact that, like the U.S. Constitution, it codifies fundamental principles relating either to governance – as the proposed reform purports to do – or to civil and human rights. Therefore, like amendments to the U.S. Constitution, only a supermajority of the representatives of the people,  reflective of a broad (although not necessarily unanimous) consensus, should be authorized to codify such principles or alter existing ones. A court should clearly not be entitled to create or amend laws adopted in this manner. But neither should a simple, non-consensus-reflecting, majority of the Knesset.

Therefore, whatever one’s view of the status quo with respect to judicial appointments and judicial review of laws and governmental and administrative decisions, a coalition enacting laws or changes in these matters by only a thin majority of the Knesset abuses its power.

But the abuse in this case runs much, much deeper. The issue under discussion is one of immense importance. Reasonable people may have different philosophies concerning how we are to govern ourselves and the proper balance to be struck among the branches of government; but surely we are indeed dealing with a philosophical, even existential question. As such, the ultimate resolution must address the matter on its merits, and have intrinsic validity without regard to possible future shifting political winds.  It cannot depend on considerations of expediency, such as how a particular person or political party will take advantage of the system to his or its own personal or parochial advantage. Yet that is precisely what animates significant elements of the coalition.

As is well known, the leader of the party heading the current government has a long record of opposing the very changes which he now so ardently pursues. So much so, that none other than the lead villain of the piece for Forum Kohelet and Messrs. Levin and Rotman, the High Priest of Judicial Activism himself Justice Aharon Barak, praised Netanyahu in the past for fending off initiatives of the kind now being mooted.  Three transparent facts explain the Prime Minister’s sudden epiphany. First, he is now on trial for corruption, and the proposed changes might be manipulated to affect the trial verdict and subsequent appeal, or to delay the trial until after he is no longer in office by passage, for his personal advantage, of the so-called “French Law.” (Far-fetched? Be sure Netanyahu doesn’t think so.) Second, the Shas Party, whose support is essential to Netanyahu’s continued premiership, may bring him down if the ministerial appointment of the thrice-convicted Deri is not assured by a law, enacted for his personal benefit,  making ministerial appointments unreviewable by the Court (with an assist from the “override” law if the Court has the audacity to review it nonetheless). And third, the Torah Judaism Party is demanding, as a condition for its coalition membership, that the Knesset be empowered, again by use of the override, to void the Court’s possible invalidation of laws that adopt a Charedi agenda, such as exempting Yeshiva students from army service.

Thus, neither Netanyahu, supported by at least some of his Likud cohorts, nor the two Charedi parties, support the reform proposals on grounds of principle. The reform for them is but means to other ends, “a spade to dig with:” for Netanyahu (Likud), to continue to serve as Prime Minister and stay out of prison; for Deri (Shas), to serve as the multi-ministerial Pooh-Bah of the Government; and for Torah Judaism, to achieve goals which are in no other way attainable, given that a majority of the electorate opposes them.

Plainly, then, the argument of Netanyahu and others – that opponents of the judicial reform proposals in their current form  are simply unwilling to accept the “majority’s” approval of those proposals, as expressed in the election results – is spurious. Subtract Netanyahu, some of his most avidly supportive Likud Knesset members, and the Charedi parties’ representatives – none of whom care one whit about reform on its own merits – and the election outcome cannot be interpreted as approval of the view that the current proposals are grounded in principles of proper governance.  Indeed, it is quite clear, taking the opposition into account, that the majority position that the Levin-Rotman proposals, judged on their merits, are unacceptable and must undergo significant revision.

Finally, the reform proponents are hypocritically unperturbed by the fact that the approach to the reform of the two Charedi parties is utilitarian, not (as noted) dictated by any vision of proper governance but, quite the opposite, motivated solely by their desire to subvert the will of the majority on various substantive issues.    

In fact, one could have reasonably expected the Charedi parties to stand firmly against the current proposals.  After all, minorities in democratic societies, fearing a “tyranny of the majority,” are traditionally among the most outspoken proponents of a strong and independent court system. They look to the courts to protect them from discrimination.  That is the case with one of Israel’s two minority populations, the Israeli Arabs, who quite naturally oppose the proposed judicial reforms.

And yet the Charedim, the other distinguishable minority with a distinct agenda – on army service, Yeshiva student allowances, school curriculum, the role of women in society and more – are advocates of the very reforms that would significantly shift the power balance needle toward the government. The reason, of course, is that the  majority of the population (including Likud voters!) does not support the Charedi agenda. The Charedi parties do not seek to prevent discrimination (against their constituents) but to promote it (in their favor); a stance the Court would likely find unsympathetic. Thus, unlike the classic minority group, the Charedi parties need to achieve their goals by becoming part of the “majority,” joining other parties prepared to cater and crater to demands they would otherwise vigorously oppose. The tables are thereby turned: the Charedi parties now need to ensure that the Court will not upset legally the anti-majoritarian measures they have gained politically.  By all appearances, Forum Kohelet and Messrs. Levin and Rotman, purported spokesmen all for majority rule, are just fine with that.

Dr. Koppel asks, skeptically, if there “any takers” among the reform opponents for a compromise, negotiated on its merits, which would entail “perfectly reasonable arrangements supported by a broad consensus.”  I would counter with the question whether will be any takers on the other side of the aisle if the perfectly reasonable arrangements which Dr. Koppel asserts are “within easy reach” cannot be manipulated to Netanyahu’s and Deri’s personal benefit, or to advance policies which are opposed by many in the coalition itself and would discriminate against the majority of Israel’s people.

About the Author
Born in New York, studied post-high school in Israeli Yeshivot, B.A. 1975 from Yeshiva University (math major), law degree Harvard Law School 1978, practiced law in New York 4 years, made aliya in 1982 and practiced law in Israel since then, married with 4 children and 13 grandchildren.
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