Ofek Sinai
A Fellow at the Argov Fellows Program in Leadership and Diplomacy

Who’s Afraid of the De-Liberalization of the Court?

Last month, just a few days prior to national elections, readers encountered a rare sponsored ad in the morning news: an open letter signed by 81 senior attorneys and heads of top-tier law firms, denouncing politicians who threaten to reform the Israeli court system. Shortly after elections were held, four of the most renowned lawyers in Israel – Relly Leshem, Alex Hartman, Giora Erdinast and Robbi Bachar – who usually represent Fortune 500 companies, gave an exclusive interview to Globes newspaper. Echoing the content in the aforementioned advertisement, in the interview, the four lawyers raised their concerns regarding the reforms for the Ministry of Justice, proposed by political candidates. These small acts of protest that were given a platform in the press, symbolize the sentiment that is growing within the free market system, that is the opposition to right-wing politicians who boast their desires to eradicate the independence of the Israeli court system.

In a neoliberal economy, such as that of Israel, the market flourishes when the court system is more liberal rather than conservative. A liberal and independent court protects businesses from arbitrary government decisions, especially in the context of conducting business with the state. A liberal and independent court removes redundant state regulation from places where it is unnecessary. It also evokes the confidence of foreign investors who may attempt to penetrate the market, because the court can prevent the state from prioritizing and protecting uncompetitive local businesses. The current legal status quo is one reason among many others, why the Israeli economy is booming. It is therefore unsurprising that the attorneys who represent major companies and multinational corporations are wary of any explicit intent to diminish the liberalism of the court. In fact, large corporations have a great interest in keeping the court as free as possible from government intervention because this protects them from the state-imposed, restrictive legislation and allows market forces to operate freely.

The last term of Justice Minister Ayelet Shaked revolved around reforming the Supreme Court’s agenda, by appointing conservative justices. Today, two of the prominent final candidates for the Minister’s seat, MK Yariv Levin and MK Bezalel Smotrich, promote an even more radical approach than Shaked’s. Both politicians have expressed interest in rebalancing the relationship between the legislative, executive and judicial branches by limiting the supreme court’s power to revoke the Knesset’s bills and executive decisions by judicial review. While things are mainly said in relation to the court’s intervention in matters of state and religion, the MKs appear to forget that the reforms they suggest will also have far-reaching implications for the economy. Ironically, radical judicial reform would contradict the right-wing government’s neoliberal economic approach, which has been applied in the last two decades.

The emergence of a coalition of influential lawyers protesting against the radical reforms proposed by politicians is a game changer. So far, senior lawyers have refrained from making their voices heard on this matter. However, when the political fist begins pounding heavily and consistently at the core of the judicial system, the jeopardy to their clients’ pockets becomes more tangible. That is when they are most likely to intervene in the dispute over the identity of the court system – the struggle over a liberal or a conservative one. Undoubtedly, there is a new balance in the triangle of politicians, judges, and lawyers. This new order may empower the judicial system, fueled by concerns of harm to the Israeli business sector and possible detriment to foreign investment. It is safe to assume that the government’s upcoming four years will provide us with additional interesting developments concerning this controversial subject.

About the Author
Ofek Sinai is a fourth-year student in the joint program for Law and Government at Harry Radzyner Law School at IDC Herzliya and a fellow at the Argov Fellows Program in Leadership and Diplomacy. In the IDF, he served as a captain in the IDF paratroopers brigade and currently as a reserve infantry platoon commander. Ofek volunteers as a youth mentor at “Bishvil,” encouraging youth to engage in community service and works as a legal assistant for Herzog, Fox & Neeman law firm. At IDC, where he is on the dean’s list, Ofek participated in the Zvi Meitar Emerging Technologies Program and the law school’s Capital Market Clinic. He was a member of the Movement for Freedom of Information practicum and interned for MK Aliza Lavie.
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