Howard F Jaeckel

Three eminent authors are wrong on judicial reform

Instead of backing unbridled judicial supremacy, Klein-Halevi, Gordis and Friedman should be working on electoral reform

As an American friend of Israel, I cannot resist the invitation by Yossi Klein-Halevi, Daniel Gordis, and Matti Friedman to “speak up,” about the judicial reform, even though my views are plainly not the ones they were hoping to elicit. The three authors wrote an “Open letter to Israel’s friends in North America,” published in the Times of Israel in February. With the reform once again coming to a head, they reprised their arguments in a Times of Israel webinar last week.

First, I should state that I have read works by each of these distinguished authors from which I have learned a great deal. I bear each of them the greatest admiration and respect. But their belief that the internal threat now facing Israel comes from the government’s judicial reform proposals strikes me as simply wrong.

In my view, the threat comes from advocates of what amounts to unbridled judicial supremacy.

The government modified one of its key provisions to account for the massive opposition that its original proposals evoked. The proposal before the country in March would have allowed a Knesset majority to override a Court decision invalidating a government action without restriction. The legislation passed by the Knesset in July only limited the Court’s power to invalidate a government action on the ground of its supposed “unreasonableness.”

In other words, the Court’s power to invalidate a government measure found to be inconsistent with existing law was unaffected. That does not appear to have changed the view of Messrs. Klein-Halevi, Gordis or Friedman that the measure threatens a fundamental change in the nature of the Israeli state. Nor has it affected the eagerness of petitioners in the case to be argued on September 12 before the full Supreme Court to have the unelected justices treat the elected Knesset as being of no account.

We are told by the three authors and by other opponents of any limitation of the Court’s power that the justices are the country’s only defense against appalling violations of civil liberties that the Netanyahu government is eager to enact. Those fears are entirely speculative. They do not warrant entrusting the members of the Supreme Court with the role of Platonic Guardians.

Several weeks after the September 12 argument on the petition to invalidate the reasonableness law, the Court will hold a hearing on a petition just as extraordinary — so extraordinary, in fact, that it should have been summarily dismissed by any judge having a modicum of respect for the electorate that pays his or her salary.  That petition seeks to invalidate a recently passed law prohibiting the Court from ordering Benjamin Netanyahu to recuse himself from any involvement in matters concerning judicial reform. The parties bringing the petition in question argue that Netanyahu’s involvement in such matters violates a conflict-of-interest agreement he signed in 2020, under the auspices of the High Court, allowing him to continue serving as prime minister despite being indicted on corruption charges.

Say what? Unelected judges are going to decide whether the country’s prime minister, chosen in accordance with the voters’ mandate, may continue in office if he insists on participating in what is unquestionably the most important political issue in Israel today? Do those who fear the “death of democracy” based on a limitation of the Supreme Court’s ability to veto Knesset-passed laws that the Court thinks  “unreasonable” perceive no tension with democracy in that?

I don’t lack all sympathy with the fears of protesters that the current right-wing coalition might run roughshod over fundamental rights. But as I’ve argued in earlier posts, those rights can and should be protected by reforms to Israel’s electoral system which currently divvies up Knesset seats according to the percentage of the national vote won by each party.

By distributing Knesset representation among many factions, including some with minimal popular support, that system requires the formation of governing coalitions that may give minority parties undue leverage to impose their special interests on the population at large. Indeed, coalition politics may well explain why Benjamin Netanyahu, having never previously shown much interest in judicial reform, is pressing the issue now that he has had to turn to Itamar Ben-Gvir and Bezalel Smotrich to form a governing coalition.

Electoral reform would be eminently achievable if Yair Lapid and Benny Gantz would put aside their hatred of Netanyahu and agree to join a unity government of the center right and center left. That is the way to protect the rights and interests of secular Israelis, not reliance on an all-powerful and undemocratic Supreme Court to veto any legislation passed by the democratically-elected Knesset that it doesn’t like. Messrs. Klein-Halevi, Gordis and Friedman would serve their country well by using their influence to promote such an end.

It may be hoped that the Supreme Court, in an unusual display of restraint and, indeed, patriotism will reject the petitions discussed above. If it grants them, conscientious members of the Knesset who believe in electoral democracy would almost be compelled to take a stance of defiance. Israel would be plunged into a true constitutional crisis with unforeseeable consequences.

About the Author
Howard F Jaeckel is a retired American lawyer who worked for a major broadcasting company for many years. He has a longstanding interest in constitutional law and has followed the issue of judicial reform in Israel closely.
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