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judicial reform is necessary for the proper functioning and future of Israel’s democracy. Over the last thirty years, step by step, Israel’s judicial system arrogated to itself greater and greater power. The balance of powers between the branches of government, which is so critical for ensuring an effective government that works for its citizens, is being increasingly upended.
Under the current situation, the votes of citizens have become less relevant. The citizen votes so that his or her elected representatives will advance specific policies. However, these elected representatives are prevented from advancing the policies on which they were elected.
For example, the legal system prevented the government from stripping Israeli residency and social security benefits paid for by the Israeli taxpayer from a member of the Hamas terrorist organization, who is also a member of the Palestinian parliament. When the relevant minister tried to cancel the Hamas member’s residency rights in Israel, the Court overturned the minister’s decision. Then when the Knesset, Israel’s parliament, legislated a special law for this purpose, the legal advisors forced the Government to give the Hamas member a status which allowed him to continue to receive social benefits and payments.
The citizen votes. The unelected judges decide.
The reform is necessary to restore the balance of powers in light of the fact that today, the only branch of government with no formal restrictions on its power is the Judicial Branch. The Supreme Court can overturn any law, and has even declared that it can overturn Basic Laws, which it itself claims have constitutional status. In other words, it can rule on the constitutionality of the constitution. This is a clear example of a lack of balance.
An additional example of a lack of balance is the fact that the elected government is considered to be subservient to the ‘counsel’ of unelected legal advisors. A person who was never elected, without expertise in the particular field under review, and with no responsibility for the outcome, has the final word. Those who hold responsibility- governments and ministers- must accept the legal advisors ‘counsel’ as binding.
Such an extreme imbalance does not exist in any other democracy.
For nearly 40 years, from the time that Aharon Barak became the dominant force on the Israeli Supreme Court, Israel has undergone an extreme and far-reaching Court-led judicial revolution, unprecedented in the democratic world. Barak’s ‘constitutional revolution’ was carried out unilaterally, with no consideration or respect for the will of Israel’s citizens, their elected representatives and government. Therefore, enacting the first stage of the reform is critical and urgent. The residents of southern Tel Aviv have waited long enough. Those suffering from the situation on lawlessness in parts of Israel have waited long enough.
In any case, the proper forum for such a dialogue is in the Knesset, where everyone can have their say, including those opposed to the reform and those representing the judicial system. As opposed to Barak’s constitutional revolution, this time everything will be done in the full view of the public, through an open parliamentary debate and democratic decision-making.
The opposite is true. In most of the democratic world, the justices of the highest constitutional court are appointed by elected representatives. This makes sense. The justices on the Supreme Court are making judgements that are closely intertwined with value systems and world views, and they have the ability to overturn decisions of the elected parliament. As on example, take the interpretation of laws related to self-defense: what is the balance the right to self-defense of someone whose home is being broken into, vis a vis the right to life of the one breaking in?
Given the nature of the cases brought before the Supreme Court, the personal value judgements of the justices are especially important and influential on their legal rulings. It is therefore important that a nation’s citizens be familiar with the judges and their values before they are appointed to the highest constitutional court, and that the citizens have the opportunity to impact the nature and makeup of the Court.
The reform will also ensure that through a public hearing, the nominated judge will be asked questions about his or her worldview, and the public will become familiar with the nominees before they are approved. Israel’s citizens have the right to know the views of those who will be entrusted with ruling on critical issues related to values, worldviews and the basic nature of the state.
To be clear, the proposed reforms do not mean that justices will be dependent on politicians. From the moment their nomination is approved, the justice is entirely independent until she or he reaches retirement, and is immune from removal. It should be remembered that all government legal advisors, attorney-generals, and even the IDF Chief of Staff are chosen by elected representatives. This does not make them dependent on politicians.
Just as importantly, under the proposed reforms, any one particular Justice Minister will be able to influence an average of 2-3 appointments to the Supreme Court. Every time there is a change in government, the Court will become a little more balanced. Over time, it will become balanced and representative of the people. Today, as result of the veto power held by unelected judges over the selection of the peers, the Supreme Court bench is largely homogenous, there is a growing gap between the values of the citizenry and that of the judicial elite, and there has been a steep drop in the public’s faith in the court.
A democratic system is one in which decisions are made through debate and agreements, while balancing between different societal groups and preferences. Government Coalitions in Israel never have unlimited power- they are always made up of different parties with different interests and values, they are always relatively fragile, and the Opposition generally has a substantial ability to oversee and impact processes. These mechanisms exist in all democratic parliaments. After the adoption of the reforms, the Court, which will enjoy greater public confidence and, for the first time, the formally-recognized ability to overturn laws, will also act as a restraining force on the Knesset in the appropriate manner. It should be remembered that in all the years prior to Barak’s unilateral constitutional revolution and arrogation of powers, the Knesset did not adopt laws that were unreasonably discriminatory.
In general, one cannot determine the rules of the democratic system based on the possibility of an extreme case. There is no end to this hypothetical line of argument. Since the daily work of government does not take place under extreme or highly-unlikely conditions, we must enable parliamentarians to legislate, ministers to manage their ministries and policy, and judges to ensure that Executive and Legislative branch decisions are taken on the basis of proper legal authority and procedures, and without discrimination, arbitrariness or corruption.
The proposed reform grants the Supreme Court, for the first time, in a formal and properly-authorized manner, the legal authority to overturn laws. This is opposed to the situation to date, in which the Court overturned laws without the legal authority to do so. If there will be an attempt to legislate a law that significantly harms minorities, that law will be overturned by unanimous decision, and the then-sitting Knesset will not be able to override the Court decision (as only the following Knesset will be able to exercise override power.) This mechanism is intended precisely for such extreme situations.