Judicial Reforms: A Brief Guide for the Perplexed

I joined some 100,000 Israelis last week at a massive demonstration in Jerusalem protesting the moves underway to change the structure of Israel’s system of government. Fortunately, the atmosphere was peaceful- almost festive in fact- but the reality is that Israel is now undergoing one of the most consequential crises in its history. Ironically, this crisis is totally internal. After 75 years, the State of Israel may have reached the point of needing to define its own version of democracy. I will try to unpack the issues in the spirit of a “Guide to the Perplexed” but in a brief and admittedly incomplete format.

1. The Israeli Constitution. Simply put, there isn’t one. Instead, there are a series of what are defined as “Basic Laws”.  Basic laws were thought to be a substitute for a unified constitution. The idea was that they could be legislated in stages, over years, and would ultimately come to serve as the equivalent of a single document. However Basic Laws can be adopted or annulled by a simple majority of the Knesset, in some cases an absolute majority (61 out of 120), and in other cases simply based on who happens to be in the plenum.

2. The Supreme Court and the Knesset. The bulk of Israeli law was inherited from the British Common Law system, and the authority of judges reflected that of the British system. Noticeably absent from the British system is the right of judicial review, i.e. the ability of the Supreme Court to overturn laws passed by the Knesset. (Actual, judicial review doesn’t appear in the U.S. Constitution either). Until 1992 the Israeli Supreme nevertheless chalked up an admirable record in protecting basic human rights, which could be attributed to the enormous respect accorded it by both the public and the elected officials, who rarely challenged its decisions. However, the Supreme Court refrained from overturning legislation passed by the Knesset, thus respecting the latter role as the representative of the electorate.

3. The Judicial Revolution. In 1992, the Knesset passed a Basic Law known as “The Law of Human Dignity and Freedom”, which included the rights of liberty, dignity, freedom, property and movement from and to Israel. In an unprecedented way, Chief Justice Barak’s Supreme Court used provisions of this Basic Law to retroactively annul laws passed by the Knesset that were seen to conflict with any of these provisions, in other words the right of Judicial Review. In addition, the court began to apply the concept of “reasonability” as grounds for annulling legislation. All this this was possible because of the lack of a formal constitution and the very high public standing of the court.

4. Consensus- there simply isn’t one. Those political leaders who ignore the value of public consensus risk the very future of their nations. We should remember that it was only through the consensus achieved by the founding generation of Israelis with the support of the great majority of Jews around the world that the State of Israel came into being in the first place.  For many Israelis, Aharon Barak’s “Judicial Revolution”, which is the terminology used by Barak himself, ushered in a welcome era in which the Supreme Court could and did impose its philosophy of law and its self-described identity as the representative of the forces of “enlightenment” in order to protect Israel against the disruptive intrusions of politicians. Internationally, the Israeli Supreme certainly became one of the most respected courts in the world. However, these same “constitutional” developments did not reflect a national consensus. Many voices argued that the “Judicial Revolution” was actually an undemocratic encroachment on the “will of the people” by an unelected elite whose views on fundamental issues were out of sync with those of most Israelis. To make matters worse in their eyes, the system of appointing judges for many years gave disproportionate weight to the Chief Justice and other members of the sitting court, so that those who saw themselves as the “defenders of liberty” came to be described by many others as an “arrogant, self-perpetuating judicial elite”.  Hence the passions that have overflown during the past few weeks from the chambers of the Knesset to the streets of Israel.

5. The Knesset and the Executive Branch are virtually the same. In the Israeli parliamentary system, the Knesset is elected by popular vote and in turn appoints the members of the government. Theoretically, the government is beholden to the public via the fact that it receives its mandate from the Knesset. However, in fact the situation is actually reversed. Since there are no regional constituencies, members of the Knesset are almost totally beholden to their parties for their political survival. Some parties, including those in the “center”, the Arab parties and the ultra-Orthodox, have no primaries at all. Others, like the Likud, do have primaries but in reality, the standing of an individual member of Knesset is determined by the party leadership. Thus, in the current debate there really are only two branches of government, the Executive qua Legislature and the Judiciary.

6. What ever happened to Checks and Balances? Given the lack of a constitution and the very deep divisions within Israeli society, neither side of the political spectrum has placed the concept of checks and balances at the top of its agenda. The “Judicial Revolution” may have ridden roughshod over the prerogatives of the Knesset, but the current response threatens to institutionalize a tyranny of the elected majority and in the name of that majority to abandon any pretension of achieving national consensus on the definitions of democracy, human rights and the “rules of the game” of the political system.

Given the lack of a constitution and the very deep divisions within Israeli society, neither side of the political spectrum has placed the concept of checks and balances at the top of its agenda.

7. Where are we now? As I write this, the new Minister of Justice (Yariv Levin) and the Chairman of the Knesset’s Constitutional Committee (Simcha Rothman) are attempting to pass legislation that will not only overturn the “Judicial Revolution” but will clarify the relationship between the Legislature and the Judiciary in a way that will theoretically make it possible for the Knesset to appoint ministers with virtually no limitations on their power. The laws envisioned will prevent the Supreme Court from applying its concept of “reasonability” to annul Knesset legislation and will allow the government, through its automatic Knesset majority, to appoint Ministers, to pass both regular and Basic Laws with virtually no limitations. Although the proposals envision a formal recognition of the authority of the Supreme Court to annul legislation, they also envision an override provision that will allow a simple majority of Knesset members to override the authority of the Supreme Court regarding legislation and appointments.

8. Is there a way out? There are many complicated alternatives, but the simplest one could be the following: Recognize the right of the elected Knesset to appoint the members of the Supreme Court, and then allow the judges independence regarding the interpretation of Knesset legislation and the right of judicial review in accordance with the one document that remains a matter of national consensus- the Declaration of Independence.

There is still some hope that the present uproar will actually lead us to a better place.

President Herzog has called for a hiatus in the legislative process in the interest of uniting the entire public around a compromise position. So far, his appeals seem to have fallen upon deaf ears, but there is still some hope that the present uproar will actually lead us to a better place, a place on national consensus that can bridge the some of the gaps between different parts of Israeli society and give us the strength and unity for the many other challenges that will certainly come our way. Let’s hope so!

Yitzhak Sokoloff is an Israeli political analyst and educator and the founder of Keshet Educational Journeys.