Israel’s new government is expected to pass major reforms in the judicial system, an intention that is already conjuring up a storm in the country.
It was one of the most heated debates in the recent Israeli election campaign.
The leading law the right-wing government wants to promote is one that will allow the Israeli parliament, the Knesset, to override the Supreme Court by a regular majority. This would give the Knesset authority to re-legislate laws that the Supreme Court deemed undemocratic. Other reforms include executive immunity, greater political influence in the appointment of judges, and limiting the ability of organizations and individuals to petition the court.
Israel has no formal, unitary written constitution, but a series of basic laws defines issues such as the formation, authority, and role of the main institutions of government and protects civil rights. Most of the laws can be amended by a regular majority.
These basic laws were intended to become the main chapters of a future constitution. In the meantime, they serve as the de facto constitution and, together with a series of landmark Supreme Court rulings, have created a tradition of constitutional law for the country. The system is unique among democracies and for many of the court’s proponents, it is a source of pride.
“Throughout the years, the court has been able to put limitations on the government but never prevented the government from acting, even in extreme cases of national security,” said Dr. Amir Fuchs, a senior researcher at the Israel Democracy Institute. “The court managed to maintain a balance between supervising the government while promoting the rights of the people as custom in a liberal democracy.”
Not everyone sees it that way.
“There is a big gulf between how the court is perceived domestically and internationally,” said Professor Eugene Kontorovich, director of international law at the Jerusalem-based Kohelet Policy Forum. “Public support within Israel has fallen in recent decades. Internationally, the court has great prestige because it is ruled by a small group of people who impose policies generally sympathetic to the global left.”
“It keeps election results in Israel from mattering much,” Kontorovich added.
Those who criticize the Supreme Court, now have the majority in parliament. They believe the Supreme Court is too powerful.
Former Prime Minister Binyamin Netanyahu, now the prime minister-designate of the incoming government, is himself on trial for charges of corruption. The suggested reforms could have a critical impact on his case. His opponents have said this is his main goal, one he frequently denies.
The proposals have been slammed by Netanyahu’s political adversaries, many of them on the left.
“This is not a reform in the judicial system, this is not ideology, this is criminality,” outgoing Prime Minister Yair Lapid posted on his Twitter account.
Lapid and others have voiced their concern about the future of Israeli democracy.
“In Israel, there are no checks and balances on political power other than the court,” said Fuchs. “Because of its system, the central government has a lot of power, making the majority very powerful.”
Two basic laws passed in 1992 and 1994, on human dignity and liberty, and on freedom of occupation, respectively, include provisions that the court interprets as giving it explicit powers of judicial review. That is, the court has been empowered to strike down any laws that contradict the protection of human rights and liberties enshrined in these basic laws. This began what has been described as a constitutional revolution in Israel.
“The Supreme Court is the most powerful institution in Israel and the least overseen,” said Kontorovich, who criticizes the lack of legislation granting the court such authority adding that the body should not be ‘above the law’.
The override clause could result in the loss of the court’s independence, something many Israelis have prided the country on. The final details of the coalition agreements have not been ironed out yet and it is unclear what sort of majority would be needed for the Knesset to override the Supreme Court.
The most radical proposals would allow for a simple majority of Knesset members present in the plenum to override the court. But even the demand for an absolute majority – 61 out of the 120 Knesset members – would still allow the parliament to bypass, with relative ease, judicial supervision of basic laws such as those dealing with fundamental human rights. More cautious proposals would require a special majority, such as 2/3 of parliament (80 Knesset members) to override the high court.
“Israel only has the Supreme Court and it is indeed very strong. The reforms are aimed at changing just that,” said Fuchs.
Members of the new coalition have also said they want to limit the authority of the attorney general. They also aim to have the legal councils of the ministries be appointed by the ministers themselves and not be the career civil servants they are today.
The new government is expected to be Israel’s most right-wing government in its 75-year history. Free from the shackles of the courts, coalition members would be able to implement their ideologies with far greater ease.
For the extreme-right Religious Zionism party, pushing aside judicial objections would make it easier to change the legal status of the territories Israel occupies in the West Bank without extending basic human or civil rights to the Palestinian population in those territories.
The coalition agreement signed between Netanyahu’s Likud and the Religious Zionism party also gives the latter leadership of the Knesset Constitution, Law and Justice Committee. The committee is a major intersection for legislation, where proposals can be buried or hastily promoted on a political whim.
For the ultra-Orthodox parties, it could allow them to bypass any rulings on cancellation of the military service exemption that full-time yeshiva students are granted by law. It could also allow them to fortify the autonomy of their secluded education system.
For Netanyahu, laws could be passed canceling some of the offenses for which he has been indicted. Even if such a law passes and is not retroactive, it would essentially lead to the annulment of his trial. It would be difficult to try a case against a prime minister for an offense that is no longer considered one.
“Behind all these reforms is the desire to strengthen the governance,” said Fuchs. “Not all of those supporting the reforms will admit this, but their definition of democracy is that the majority can do whatever it wants.”
“Israel will become a hollow democracy with little defense for the minority,” he added.
Israel’s fractured society, with large minorities such as Arab Israelis and ultra-Orthodox Jews, needs to tread carefully when it comes to civil rights.
Members of the incoming coalition argue that the reforms increase democracy in the country by guaranteeing that the majority can govern and make changes that it wants.
“What we have at the moment is the opposite of democracy,” said Kontorovich. “What could be less democratic than a self-perpetuating, elite in-group picking its own successors while holding ultimate power over all decisions in the country with no democratic checks?”
One of the proposed reforms pertains to the makeup of the committee that appoints judges. Critics say that there is a majority for the representatives of the judges over the politicians, dampening the voice of the majority in the country that wants to see its views reflected in the courts. Others believe the composition of the committee guarantees a balance between professional and political needs.
A seemingly simple procedural matter, a change in this committee could have a far-reaching impact on the courts.
“This will transform the court into another political body that is subordinate to the government, weak and with no independence,” said Fuchs.
There have been voices outside of the Israeli right that recognize the need for reforms but ones that are different or more limited than those being proposed. In light of decreasing public faith in the Supreme Court, changes might be called for.
“There are many good approaches on how to limit the court’s authority,” said Kontorovich.
Many of the reforms proposed by the incoming government will take years to go into effect or make an impact.
However, the override clause could be approved almost immediately with the swearing-in of the government. This will instantaneously change the balance of power between the executive and judicial branches in Israel.