צדק צדק תרדוף
Judicial Revolution Versus Judicial Reform
From its inception in 1948 until the early 1990’s, the Supreme Court of Israel was extremely careful not to infringe on the roles of the legislative branch. Then came Judge Aaron Barak. Barak served as Judge in the Supreme Court from 1978 until 1995, then as Chief Justice of the Israeli Supreme Court from 1995 until 2006. He is credited as initiating and implementing the Judicial Revolution that saw the scope of action of the Supreme Court expand exponentially, to include almost unlimited Judicial Review power. He viewed himself and the court as having at least equal authority to the Knesset in enacting Israeli Laws. Let us remember in all this that the Supreme Court is a non-elected body and that judges bring in judges thereby perpetuating these new invasive doctrines. Judge Aaron Barak served for 28 years in the Supreme Court, and it is fair to say that the aim of the 2023 Judicial Reform proposed by the current governmental coalition is to remedy many of the negative effects of Barak’s self-declared Judicial Revolution.
On the Israeli Supreme Court scope of action
In and of itself, the way Supreme Court judges are nominated would not create such a big uproar if the power of the court and the extent of its reach were well defined. But this is not the case. Since Chief Justice Aaron Barak’s Judicial Revolution, the Supreme Court has significantly extended its competency perimeter based on its own aggressive definitions of the concepts of Justiciability and Reasonableness. This has led to what many call “activism,” or more directly: political interference. The examples are many, well documented and well known by all, of the Supreme Court, while ignoring the principle of separation of power, actually modified or cancelled decisions or legislations enacted by the Knesset or the Government. Case in point: Preventing the appointment of candidates chosen by the Government, imposing the release of leaders of terrorist organizations thereby preventing security services from obtaining crucial information, overturning legislation on housing, and many others. This illustrates how the Supreme Court, following Chief Justice Barak, has become an important (albeit non-elected) parallel power, independent from the Legislative and Executive Branches.
Opponents to the reform pretend that the proposed changes will transform Israel from a Democracy to a dictatorship. There is no validity to this argument whatsoever. If there ever was a dictatorship or at least an abusive control of power, it could be found in the judicial system since Barak’s reign: unelected, unchecked, self-perpetuating, seemingly serving its own political agenda and not the will of the people.
The current governing coalition has been elected with a comfortable majority in November of 2022 in a free election. The platform they ran on included this legal reform. The people of Israel have spoken. Over 2 million electors cast their ballot for the coalition. There is absolutely no need for Bibi or anyone else in his camp to move away from democracy: they enjoy full support of the people. This is not the case for Yair Lapid and his friends who apparently are not ready to accept the results of an election which they lost and rather than confronting two million electors, are launching into the streets of the country some of the most hateful mobs we have seen in a very long time in Israel.
In the proposed reform, the government proposes to bring back full legislative power to the very people who have been elected by the citizens for this purpose: the Knesset. It is my understanding that the terms of the reform will put on a different footing the Basic Laws and the Common Laws: Basic Laws are anchored in the Declaration of Independence and will serve in due time as chapters of the upcoming Israeli Constitution. As such, non-elected officials should have only a fully scoped, very limited ability to overturn such a law. The thresholds for the review of common laws may be different, there may be room for negotiations here.
Limiting the scope of action of the Supreme Court also means putting well defined limits on justiciability and especially eliminating or severally curtailing the notion of Derivatives (or derived rights). If left unchecked, this concept could lead to unlimited, unbound powers for the court.
Israel does not have a formal constitution. Some concepts are either absent or ill-defined in the existing set of Basic Laws. This is the case for freedom of speech, freedom of religion, due process, etc. The Israeli Supreme Court relied on the “Human Dignity and Liberty” Basic Law to derive all kind of rights that are not spelled out. It seems completely appropriate that the current government sees it fit to entrust the Knesset (the sole democratically elected legislative body) with enacting laws that would regulate these domains, if and when it becomes needed.
By comparison, let’s remember the fascinating debates in the US Supreme Court over the concepts of gender equality, equal protection, right of privacy, freedom to choose, etc.. (see in particular the famous Griswold V Connecticut, Brown V Board of Education, and Roe V Wade cases) that led to landmark decisions, but in which the US Supreme Court always specified the narrow scope of application of their decision in an effort not to infringe on the prerogatives of the legislative branch. I wish the Israeli Supreme Court had been so careful and self-conscious in their reviews.
A Coup d’Etat?
In my humble opinion, the proposed Judicial Reform is timely, just and needed. It will improve democracy, not harm it. It may not be perfect in all its many clauses, and I am sure there is some room for improvement and negotiation. The prime minister has indicated his willingness to do so.
But there is no room for the kind of violence, threats, illegal actions that we see in our streets these days. And there is no room for incitement, especially coming from the very politicians who pretend to be capable of leading our country.
As the famed French writer Albert Camus said: “mal nommer les choses c’est ajouter aux malheurs du monde”, or in English: “To misname things is to add to the misfortune of the world.” For us, here and now, it means that, to avoid adding to the misfortune of our beloved country, we should not be mistaken, we should neither underestimate nor mis-interpret the situation that has been unfolding here in Israel: what some opposition leaders are trying to do is simply stage a Coup d’Etat to overthrow our democratically elected government. This in many countries would be a crime liable of severe prosecution.
Where do we go from here?
It is not too late. It is never too late to make things right. Let us calm things down. Let us listen to the voices of reason like these university professors who recently expressed their view in favor of the reform, or these tens of thousands who took to the streets to voice their support for the coalition.
More importantly, let us look at the facts, at the proposed changes, rules and regulations that make up this proposed reform. As I started in my previous blog, an analytical review is needed, far from emotions, away from personal attacks, and devoid of Lashon Hara. Only through such an analysis can we come together around a negotiation table and hammer out a compromise that will satisfy most needs of most parties while retaining the essence of this proposed reform and actually protect the exemplary democratic nature of our nation.
We Jews are the most resilient people in the world. We have survived thousands of years of exile to find ourselves again in our cherished land. Let’s re-unite to make our children proud of us and of our accomplishments.