Israel’s Democratic Deficit - A Comparison
Former US Justice Antonin Scalia once quipped that whenever he felt bad about the American Supreme Court’s rulings, he would read Israeli rulings and then feel better. This tongue-in-cheek comment reveals a deep truth: The power of Israel’s Supreme Court and the Attorney General are exceptional by every standard of comparison with other Western democratic countries. This leads the Court to act as the de facto Supreme judge, legislator, executive and even constitutional framer. The Court’s highhanded activism hurts public trust, damages democracy and makes a mockery of the law and the legal system.
Striking Down Laws
Israel is the only Western country in which its constitution was invented by the Supreme Court. Historically, Israel belonged to the minority of countries worldwide without a written constitution (namely the United Kingdom and New Zealand), an inheritance from the British Mandate. The Israeli Supreme Court did not have the power to strike down laws, similar to other countries (even those that have a written constitution) such as the Netherlands, Luxembourg, or Switzerland.
Israel’s “constitution” largely rests on the Human Dignity and Liberty: Basic Law and the Freedom of Occupation: Basic Law. The Human Dignity and Liberty: Basic Law was passed in 1992, in the middle of the night, during a lame duck transitional government, with a minority of Knesset members, largely from the opposition. During the votes, the bill’s initiators repeatedly reassured that Knesset members that the Basic Law would not authorize the Court to strike down laws. Almost immediately afterwards, the Supreme Court announced that a Constitutional Revolution had occurred, authorizing the Court to disqualify laws.
Compare the constitutional situation with two significant common-law countries, the United States and Canada. The American constitution was adopted in 1787, after five months of intensive discussions with representatives of 12 of the 13 states. The Constitution begins with the words: “We the people”. It is extremely detailed and sets out the powers of each government branch. There is no ambiguity over the Constitution’s existence.
Canada is a poignant comparison as it, similar to Israel, historically practiced the British system of the parliamentary supremacy. Until the adoption of the Canadian Charter of Rights and Freedoms in 1982, the Supreme Court could not strike down laws. The move from a parliamentary to a constitutional system was a long process that required public consent. In 1980, then-prime minister Pierre-Elliott Trudeau began the difficult work of drafting a constitution. The leaders of the federal and provincial government met several times to come to an agreement. The Parliament held a public consultation and heard close to 1,500 written and oral submissions. Finally, in 1982, the charter was passed with broad public support. Canada’s Constitutional Revolution was done democratically and not by a unilateral judicial coup.
It’s also important to note that Israel’s Supreme Court has gradually done away with the various doctrinal checks on its power. For example, the Court historically demanded that petitioning parties have “standing”, meaning that they were specifically injured by a government decision or law. The restriction and practical abolition of standing opened the door for NGOs and public petitioners to challenge any policy that they are opposed to. This has led the Supreme Court to become an alternative policy-making forum instead of the Knesset.
Another key example is justiciability. This doctrine meant that there were certain issues in which the court had no expertise, in which no legal parameters existed and in which judicial involvement would be inappropriate. Non-justiciable issues included policy decisions, political questions, inter-parliamentary proceedings and foreign affairs. Today, there is no issue outside of the Court’s purvey.
Based on all of the above, Richard Posner, former US Court of Appeals judge, labeled the architect of the Israeli Supreme Court’s power-grab, Aharon Barak, “a judicial pirate” and “establishing a world record for judicial hubris.”
As explained, Israel’s judicial selection system is unique, and not in a positive sense. In Israel, the judges and jurists hold the majority of the Judges’ Selection Committee, giving them a veto power over judicial appointments.
In almost all democratic countries, Supreme Court or constitutional court judges are appointed by the elected officials, whether the legislature or the executive. A 2019 study of judicial appointments to constitutional courts of in the 36 OECD countries (supreme courts or constitutional courts) found that 24 out of 36 countries surveyed appoint their judges in a system that grants the power to elected officials exclusively. For example, in the United States, supreme court judges are appointed by the president, with the confirmation of the Senate; in Germany, constitutional court judges are appointed by both chambers of the legislature; in France, the judges of the constitutional council are appointed by the President and both houses of representatives in equal proportion, and alongside them serve former state presidents.
In other countries, in which the judges are appointed by professional committees and not the politicians, namely the UK and Luxembourg, the courts do not have the power to strike down laws.
The only other countries in which the courts can strike down laws without being appointed by the elected officials are Greece and Turkey. The Israeli system has the worst of both worlds: its Court can overrule the elected officials, while being a self-perpetuating clique unaccountable to the public.
The Powers of the Attorney General
Dr. Eitan Levontin has described the Israeli situation thus: “there is no such thing, to the best of my understanding, in any other place. The legal situation in Israel is not a minority opinion, but rather a single opinion, and it seems to me that a chasm – not just a disagreement – lies between it and the legal situation in any comparable country.“
In other common-law countries such as the United States, Canada or the United Kingdom, the Attorney General is a minister and is directly responsible to the government.
In the United States, the Attorney General’s position is explicitly political. He serves as a cabinet member who heads the Department of Justice. His primary duties are the provision of legal advice to the president and his presentation in court. He is assisted by various professional bodies and figures such as the Solicitor General and the Office of Legal Counsel, which are all subordinate to the Attorney General.
The relationship between the legal advisors and the political branches is neatly summed up by Solicitor General Drew Days when interviewed for the position by President Clinton:
“I responded, ‘Mr. President, it is very simple. You are in the Constitution and the Solicitor General is not.’ That statement certainly let the President know that I would defer to his authority.”
In Britain, the Attorney General (AG) is a minister of the Crown and sits in one or other House of Parliament. The Solicitor General (SG), who is also a minister of the Crown and a member of the Parliament, is the AG’s deputy and is subordinate to him. The Prime Minister has the authority to appoint and dismiss the AG and the SG, known as the Law Officers. Both of the positions have a clearly political nature.
In Canada, the Attorney General is a minister and cabinet member. He often serves in parallel as the justice minister. He serves at the pleasure of the Prime Minister. Since he is often not a legal expert, the Deputy Minister, a legal expert, practically renders legal advice to the government and represents it in court. The government is authorized to appoint and dismiss the Deputy Minister.
In each of these countries, the relevant advisors are clearly subordinate to the political branches. Their recommendations are not binding, they cannot prevent the government from receiving legal representation and their counsel is confidential.