Wednesday, February 15, 2023
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Judicial reform is a hot-button topic right now in Israel,
or at least the media wants us to think so. You can practically hear the
slavering of journalists on the left as they write their reports. They paint
the new right-wing Israeli government as “far-right” and even criminal, and
pretend that the “mass” protests are massive.
NPR,
for example, pretends that the Israeli government wants to reverse Supreme
Court decisions:
The most controversial element of the proposal would give the government the power to override the Supreme Court and, with a simple majority vote in parliament, re-legislate any law that the Supreme Court strikes down as an unconstitutional infringement on rights and freedoms.
In fact, the exact opposite is true. The High Court has the
power to override any and every action, law, or decision made by duly elected government
officials. Israel has no written constitution, but a set of basic laws with
semi-constitutional status. The basic law regulating
Israel’s judiciary includes a section marked “Judicial review of acts of
government - section 15(d)(2)” which states:
This section of the Basic Law authorizes the HCJ to order state and local authorities and officials, (including other persons carrying out public functions under law), to act or refrain from acting in the lawful exercise of their functions, including if they were improperly elected or appointed. This section reflects the major traditional role of the HCJ; exercising judicial review over the standard operations of the executive branch, when it acts according to its statutory authority.
In practical terms this means that the High Court rules the
country, and not the government. There’s almost no point in voting—and many
Israelis no longer do. Because the government doesn’t decide policy. That
remains within the purview of the court.
NPR, in other
words, has it exactly backwards. It’s not that the government wishes to
overturn Supreme Court decisions, it’s
the other way around. The Israeli High Court rules by fiat. The elected
government of Israel is prevented from reflecting the will of the people.
A right-wing government, for example, may okay a settlement,
but the High Court will always countermand that decision. Israelis on the right
do and don’t understand this: we think that if we vote for a Smotrich or a Ben
Gvir, the right-wing government we elect may actually enact right-wing policy,
for instance build new settlements or declare sovereignty over Judea and
Samaria. But without judicial reform, the hands of Smotrich and Ben Gvir are
tied. There is not a thing they can do that the court cannot reverse, and the
court is dedicated to preventing the enactment of right-wing legislation and
policy despite the will of the electorate.
Writing for Fathom,
Russell A. Shalev explains that:
Israel is unique among Western democracies – it has a self-appointed judiciary that is at the same time legislator, executive as well as drafter and creator of Israel’s constitution. This enormous power functions without any effective checks, balances or supervision. As a result, reforms that have been discussed for close to three decades are coming closer to fruition.
Well, actually not. As of this writing, efforts to reform
the Israeli judiciary have already stalled
(and will likely grind to a halt, if history is any indication):
The coalition has decided to postpone the preliminary vote on the controversial "Deri Law" and freeze the legislative process on one out of two versions of the "Override Law," coalition whip MK Ofir Katz announced in the Knesset plenum on Wednesday, marking a possible turn towards negotiation with the opposition over the government's highly contested judicial reforms.
The effect of judicial reform would be to rein in the court,
and put the power instead into the hands of the government and those who voted
for it. This, of course, does not sit well with those who voted against our current government, and
their response has been to protest in supposedly unprecedented numbers, which
are not actually unprecedented at all. From Daniel
Greenfield:
The media and assorted opponents of Israel’s current coalition are hyping the leftist rallies in Tel Aviv against the government’s judicial reform efforts as being unprecedented.
They’re not.
While Israel is a small country, getting 100,000 protesters, on any side, to take to the streets is really not very hard.
Greenfield brings several examples of previous protests that
topped that number. Perhaps the most striking example goes back almost a
decade:
Even the haredim, who comprise only about 13% of the overall population, managed to turn out some 250,000 in 2014 to protest against government school regulations.
The right to protest, of course, is the cornerstone of any
democracy. Which makes it ironic that any Israeli would protest against
judicial reform. Back in 1998, Evelyn Gordon
wrote a lengthy piece about Israel’s judiciary for Azure, against the backdrop of attempts by the High Court to
squelch debate and dissent:
In August 1996, two haredi newspapers published editorials highly critical of the Israeli Supreme Court and its president Aharon Barak, assailing the court's increased involvement in matters outside its traditional purview. The editorials triggered a torrent of denunciations from Israel's political, legal and journalistic establishments: Complaints were filed with the police against the papers and their editors charging them with sedition, incitement and defamation of the court; there were calls in some quarters for the papers' closure, while prominent politicians from almost every party vied to produce the most vicious castigation of the crime. Then-finance minister Dan Meridor, in a typical example, branded the editorials "a severe incitement campaign that is unprecedented in the state's history, aimed at damaging not only senior justices but at undermining the basic values of society and the public's confidence in the justice system."
After a brief lull, the issue resurfaced in late November, when an interview appeared in which Dror Hoter-Yishai, chairman of the Israel Bar Association, blasted the court for its intrusion into matters that were properly the province of the Knesset. Again, across-the-board denunciations were accompanied by police complaints and demands that Hoter-Yishai be removed from his chairmanship of the Bar and his position on the government committee that appoints judges. The Bar's Ethics Committee recommended that he face disciplinary charges on account of his remarks.
The Israeli public is probably unique in the sanctity it affords its judiciary, and in its bilious intolerance to attacks on the court. Yet it is not for disrespect of the judiciary that many other democracies, most notably the United States, have assiduously protected debate over judicial activism. The question of the judiciary's proper role in explicating the basic values and principles that shape a nation is of vital importance to any democracy-especially one such as Israel, whose governmental structure is still somewhat in flux, and whose Supreme Court has over the past two decades dramatically increased its involvement in public life. By suppressing debate on one of the most vexing questions of democratic theory today, the political, legal and journalistic communities managed to bilk the Israeli public of one of its founding democratic privileges-the ability to define the role and powers of the institutions of government.
Anyone who wants to understand the issue of judicial reform
in Israel, would do well to begin with a thorough reading of Gordon’s essay.
Gordon makes it clear that Israel is not alone in its efforts to determine
where the rights of the courts should begin and end:
While there is a broad consensus in western democracies about the legitimacy of judicial review-the right of courts to overturn laws that expressly violate a written constitution, or to annul government decisions that contradict laws-there is no such agreement on whether courts should be allowed to overturn laws or government decisions that violate principles whose protection under the law is only implicit.
In most of the western world, the debate over court activism has been held not only in scholarly journals of jurisprudence, but in the political arena as well. In the United States, for instance, activist Supreme Courts have been the source of controversy for over a century. In 1857, the famous Dred Scott decision prohibiting Congress from outlawing slavery in the western territories became a major political issue that featured prominently in the 1860 presidential elections. Republicans and abolitionists denounced the decision as "the greatest crime in the judicial annals of the Republic" and "entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room." President Abraham Lincoln blasted the court's activism in his first inaugural address in 1861:
[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government to that eminent tribunal.
Europe, too, is no stranger to the problem of judiciary
overreach, and has had to anticipate how the courts will react to legislation
and adjust its policies, accordingly.
Elsewhere in the democratic world, judicial activism-which at one time was considered a uniquely American phenomenon-has increasingly come to characterize the behavior of high-level courts. As one scholar has pointed out,
[J]udges in the United Kingdom are increasingly involved in reviewing the discretionary acts of the administrators of a wide variety of government programs, contrary to their tradition.... French and German legislators and executives now routinely alter desired policies in response to or in anticipation of the pronouncements of constitutional courts, and ... member states of the European Community are beginning to alter domestic policies as a result of rulings of the Court of the European Community.... In Russia the legislative-executive confrontation over the constitutional distribution of authority and Boris Yeltsin's economic policies regularly wended its way in and out of the Constitutional Court....
Gordon goes on to explain the issue of justiciability, or “the
determination of whether a particular question is capable of being settled by
court action.” Originally, says Gordon, justiciability was defined narrowly in
Israel, “such that wide areas of government
policy were simply considered beyond the court's purview.”
But then things got out of hand:
In the mid-1980s, the Supreme Court, under the stewardship of President Meir Shamgar, undertook to ease substantially the restrictions on standing and justiciability. In the landmark 1986 Ressler case, for instance, the court agreed to hear a petition against the exemption from military service that yeshiva students had traditionally enjoyed. Petitions had previously been filed twice on this issue, and both times the court had ruled that the matter was not justiciable. In 1986, however, a three-judge panel including then-justice Aharon Barak held that the issue was justiciable, while rejecting the case on its merits.
At about the same time, the court issued a landmark ruling on standing limitations. In 1987, Citizen Rights Movement MKs Shulamit Aloni and Dedi Zucker petitioned the court against the justice minister's refusal to extradite William Nakash to France, where he was wanted for the murder of an Arab. Justice Menachem Elon, in his dissent, upheld the court's traditional position that the petitioners had no standing. However, the other four justices, led by President Shamgar, asserted a new standard: Since no one else in the country had a more direct interest in the case, and it was a matter of genuine public interest, the court would hear the petition. Since these rulings, the erosion of standing and justiciability restrictions has continued unabated.
Gordon predicted that the argument over the rights of the
courts versus those of the government would continue for decades:
Israel has reached the stage where it can ill afford to stifle the judicial activism debate. Yet last year, Israel's leading public figures demonstrated an eagerness to do just that. But the topic has at long last been broached, and the nation now finds itself at a crossroads, compelled to decide whether the values underlying the laws of the land will continue to be decided by a small group of unelected judges, or whether such vital questions will be returned to the public forum. Few decisions will be more fateful in determining the shape of the country over the coming decades.
In hindsight, twenty-six years later, Gordon’s words appear prophetic. What was true in 1998 remains true today—even if the names of the main characters in the debate over judicial overreach and reform have changed. Today’s protests against judicial reform are just more of the same. And it’s all engineered by Israel’s version of the “old boys club,” the unelected judges who oppose the democratically-elected government of Israel, and its electorate, at every turn.
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