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Judicial reform is essential to return democratic power To Israel’s citizens

JERUSALEM — Last December, Yariv Levin, the freshly sworn-in Israeli justice minister, announced a comprehensive proposal to reform the Israeli judicial system. The reform proposals did not arise in a vacuum, but stem from three decades of critiques, largely but not exclusive from the right, of the Supreme Court’s high-handedness and blatant power grabs. In order to understand the Israeli right’s deep distrust of the court, it is necessary to go back to the roots of Israel’s so-called constitutional revolution.

One of the most common, but fundamentally ahistorical, arguments against the judicial reforms is that they will profoundly change Israel’s institutional structure. In truth, the proposals are an incomplete response to a series of unilateral moves made by the Supreme Court over the past 30 years.

These changes have created a severe democratic deficit and have curtailed the political rights of Israeli citizens. Stemming from the self-styled 1990s “constitutional revolution” led by Supreme Court President Aharon Barak, legitimate disagreements over policies or values are often resolved by judicial fiat, with elected officials playing but a secondary role.

Like Canada before the Charter of Rights and Freedoms, until the ’90s, the Israeli system was based on the Westminster model of parliamentary supremacy. In such a system, the courts did not have the power to strike down laws.

In 1992, the Knesset passed a rather narrow bill reaffirming the state’s commitment to human rights. This bill, known as Basic Law: Human Dignity and Liberty, was passed in the middle of the night, as a private member’s bill, and was voted upon by a small minority of Knesset members during a lame duck government.

It certainly has none of the attributes traditionally associated with a constitution. Its proponents explicitly reassured Knesset members that it would not give the court the power to strike down laws. However, shortly after it was passed, the Supreme Court declared that Israel now had a judicially created constitution.

Based on the laconic text of the Basic Law, the court is free to dictate Israel’s immigration, security and even economic policy. Indeed, there is no field outside of the court’s domain. There is no parallel anywhere else in the world for a court that has the power of constitutional review in the absence of an actual constitution.

Canada’s judicial evolution couldn’t be more different. In 1980, Prime Minister Pierre Trudeau began the long, deliberative process of drafting a new constitution, with the explicit and public goal of authorizing judicial review. This extensive process included convening the leaders of the provinces, public discussion and parliamentary hearings, culminating in the Constitution Act, 1982 and its Charter of Rights. Even then, the charter included the notwithstanding clause in order to maintain Canada’s historical parliamentary supremacy.

One of the key components of the Israeli judicial reforms is to amend the system by which judges are selected. Practically uniquely among democratic countries, Israel’s serving Supreme Court justices have a veto over their successors. As anybody familiar with the idea of regulatory capture knows, any closed organization with strong gate-keeping will naturally maintain homogeny.

The serving judges’ veto prevents the selection of independent thinkers who may challenge the reigning activist judicial philosophy. Meanwhile, in Canada, the selection of Supreme Court justices is the exclusive province of the executive. Why is a system that is widely respected in the Great White North derided as “politicization” in Israel?

Among the most egregious institutional coups carried out by the Israeli Supreme Court is the conferral upon the attorney general of a veto power over the government. Unlike in Canada, where the attorney general is a government minister, the Israeli AG is a civil servant. Without any basis in law, the attorney general can prohibit any government policy or action. Any democrat should feel outraged that absolute power is vested in a bureaucrat, with no public accountability.

This absolute power has naturally led to abuse. In 2019, the attorney general prevented the justice minister from appointing his chosen candidate to a senior legal position, despite the minister’s clear legal prerogative. According to the AG, there was only one candidate in the entire country whose appointment would be “reasonable.” Unsurprisingly, the candidate was a close confidante of the attorney general.

The current attorney general has prevented Israel’s elected prime minister from publicly commenting on the judicial reforms, the flagship initiative of the government he leads. She has even prevented the cabinet from holding a discussion of how to handle protesters blocking highways. The reform proposal would restate the role of legal advisors to advise, not dictate.

On Monday, the governing coalition passed what is arguably the least controversial reform: legislation to limit the use of the reasonableness doctrine, by which the court can strike down any executive decision by the government, even if it is perfectly legal. Based on reasonableness, the court has dismissed duly elected government ministers and struck down government appointments.

This is without parallel in democratic countries and severely hampers the ability of governments to pursue the policies for which they were elected. The court is even set to hear a petition over the reasonableness of Benjamin Netanyahu serving as prime minister. While it is highly unlikely that he will be dismissed, how can any democrat accept the sacking of a prime minister who enjoys a clear parliamentary majority, without any basis in law?

The subjectivity of the reasonableness doctrine opens the door to arbitrariness and double standards. For example, the court has prevented right-wing governments from appointing relatively minor functionaries four months before elections, while allowing the previous Lapid government to surrender sovereign Israeli maritime territory to Lebanon less than a week before an election.

By judicial fiat, the Supreme Court has anointed itself, the least democratic branch of government, as the most powerful. Juridical rule has benefited the political camp that has been routinely defeated at the ballots. It is small wonder, then, that they have been the most vocal in opposing legislation advanced by Israel’s legitimately elected government. The government’s reform proposal seeks to restore balance to Israel’s branches of government, and guarantee equal and consistent rules for the left and the right.

Former British Supreme Court justice Jonathan Sumption said in a lecture: “Judicial resolution of major policy issues undermines our ability to live together in harmony by depriving us of a method of mediating compromises between ourselves. Politics is a method of mediating compromises in which we can all participate, albeit indirectly, and which we are therefore more likely to recognize as legitimate.”

In a society as ideologically, socially and religiously diverse as Israel, the parliamentary process is the only way to achieve compromise and modus vivendi. Three decades of judicial high-handedness has created clear winners and losers, and has brought the country to the boiling point. Judicial reform is essential to return democratic power to Israel’s citizens.

First published at National post

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  • עו"ד אברהם שלו

    בעל תואר ראשון במדעי המדינה ולימודי מזרח התיכון מאוניברסיטת מקגיל בקנדה, בעל תואר ראשון במשפטים ותואר שני בלימודי מזרח תיכון מאוניברסיטת בר-אילן. חוקר במחלקה המשפטית בפורום קהלת ומתמחה במשפט ציבורי.

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