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Why Judicial Reforms in Israel are Necessary to Preserve Democracy
As judicial reform proposals in Israel continue to dominate the headlines and generate controversy amongst the left and right wing political parties, a closer look needs to be taken concerning the proposed series of changes to the judiciary that have sparked large protests in Israel and a serious concern in the international community.
Netanyahu, who represents the Israeli right as well as the religious parties who have formed a coalition government with him have long complained that the nation’s judiciary and particularly the Supreme Court have too much power in and that this power needs to be curtailed.
In the last Israeli election, Netanyahu publicly presented his detailed plans to modify the level of power that the judiciary holds and the people of Israel voted overwhelmingly in favor of it.
Among the most controversial changes are limitations on the Israeli Supreme Court that would prevent it from vetoing legislation and government regulations and giving the government control of the panel which chooses judges.
In an op-ed piece entitled, “Reforming Israel’s Supreme Court is Perfectly Reasonable” that appeared on the JNS.org web site on January 16th, Rabbi Dov Fischer writes that in the five elections that took place within the last four years in Israel, “the bloc led by the Likud Party put court reform before the voters as a major campaign issue and promise. However, no one—emphasize: no one—has suggested closing down the judiciary. The issue is reining in an Israeli Supreme Court that has unilaterally seized political power from the legislature.”
Rabbi Fischer added that, “Under a prior chief justice, Aharon Barak, the Court declared itself empowered to overthrow laws and enact its own laws based on such concepts as “reasonableness.” Thus, whatever seems “reasonable” to a small coterie of justices can become law without voter participation in the process, superseding the popularly elected Knesset. This is outrageous because, axiomatically, reasonable minds differ. “
In an astute analysis of the controversy, Rabbi Fischer, who is a retired law school professor and an attorney who practiced complex civil litigation for more than a decade at two of America’s most respected international law firms—Jones Day and Akin Gump, said that “Justice Aharon Barak unilaterally arrogated extraordinary powers to his court well beyond those of any other Western democracy. The Court should have been reformed years ago.”
Rabbi Fischer opined, “There is nothing particularly extreme about the Israeli government’s proposed reforms. Moreover, the hysterical protests against these reforms are hypocritical. If a right-wing Supreme Court had arrogated to itself such unilateral authority and then leveraged that seizure of power to run roughshod over the Knesset for the next half-century, the left would now be demanding these reforms. The American left is doing this right now. It suddenly wants 13 to 15 justices on the Court—and term limits, too—after having quite happily supported the current system as long as they dominated it.”
On Wednesday, Reuters reported that Israel’s Supreme Court ordered Prime Minister Benjamin Netanyahu to remove a senior minister over a past tax fraud conviction, in a setback for the new coalition government.
The 10-to-one ruling on Shas party leader Aryeh Deri looks likely to further stoke tensions between the Cabinet and Israel’s Supreme Court over government reform plans which aim to rein in the top court, Reuters reported.
“Most of the judges have determined that this appointment is extremely “unreasonable” and thus the prime minister must remove Deri from office,” said a court summary of the ruling, according to the Reuters report.
Deri, who holds the interior and health portfolios and is due to become finance minister under a rotation deal, confessed to tax fraud last year in a plea deal that spared him jail time.
Some of the judges in their ruling also cited Deri having previously told the magistrate’s court dealing with his tax case, that he would be retiring from politics, Reuters reported.
Israeli Justice Minister Yariv Levin said the bench had chosen not to respect the people’s choice, Reuters reported. “I will do whatever is necessary to fully repair this glaring injustice done to Rabbi Aryeh Deri, the Shas movement and Israeli democracy,” Levin said in a statement.
Ynet News reported on January 12th that Israeli Chief Justice Esther Hayut issued a stark warning in response to the proposed reforms that would limit High Court rulings against government moves or Knesset laws, while increasing politicians’ say in selecting judges.
It will “deal a fatal blow” to the independence of judges and their ability to serve the public, Hayut said. “The meaning of this plan is therefore to change the democratic identity of the country beyond recognition.”
Hayut said democracy is not only the rule of the majority. Without a system of checks and balances on the government, the rights of civilians and minorities will not be protected, she said, according to Ynet News.
On January 17th , Israel National News reported that Knesset Constitution Committee chairman MK Simcha Rothman (Religious Zionism party) intended to submit in the coming days his own version of a judicial reform bill, Channel 12 News reported.
The wording that Rothman will present will not be the same as that presented by Justice Minister Yariv Levin, INN reported. It will include changes and, among other things, the composition of the committee for the appointment of judges will be slightly different from Levin’s proposal – but apparently the principle that the coalition will have a majority on the committee will be maintained, the INN report indicated.
Another issue in which Rothman’s proposal is more moderate than Levin’s is with regard to the judicial concept of “reasonableness”. INN reported that the Override Clause will also be softened to maintain more of the Supreme Court’s power than under Levin’s proposal.
In Israel, where the Supreme Court has jurisdiction in areas where the US Supreme Court would never intervene, the number of cases they hear each year differs drastically when compared to the US Supreme Court.
The US Supreme Court agrees to hear about 100-150 of the more than 7,000 cases that it is asked to review each year. Federal courts generally have exclusive jurisdiction in cases involving the Constitution, violations of federal laws, controversies between states, disputes between parties from different states, suits by or against the federal government, foreign governments and treaties, and admiralty.
The Israeli Supreme Court, on the other hand, decides more than 10,000 cases annually. The Supreme Court in Israel wears two hats: it is the highest Court of Appeal in the State of Israel, and also sits as a High Court of Justice (Bagatz), hearing Petitions against various governmental authorities at first instance as well as against rulings of Appeals Tribunals.
The astounding power and influence of the Israeli Supreme Court in practically every facet of life in Israel and especially in the legislative branch makes for a frightening scenario.
Like Esther Hayut, who is the president of the Israeli Supreme Court, the vast majority of the other Supreme Court justices have been educated in such liberal bastions of academia such as Tel Aviv University School of Law and the Hebrew University School of Law. Political leanings and predilections surely come into play when cases are decided and the court if of the belief that the ultimate power rests within their purview.
The time for significant judicial reform in Israel is long overdue in order to preserve democracy. The time is long overdue to allow the legislative branch of government for whom the Israeli populace cast their votes for exercise power over the future of the country that they represent,
