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In 1995, Israel’s Supreme Court unilaterally altered Israel’s system of government. Prior to this, Israel’s democracy was based on the British model, in which the Court cannot strike down laws. The Israeli court, on its own accord and with little public discussion, carried out a regime change.
In most cases, a change in a country’s system of government comes about as a result of a democratic agreement or through a coup. In Israel, it came about through a highly-unusual and surprising judicial ruling.
In 1992, the Knesset, Israel’s Parliament, passed, by a regular majority, two Basic Laws related to human rights: ‘Basic Law: Freedom of Occupation’ and ‘Basic Law: Human Dignity and Liberty’. The first passed with only 26 votes in favor (out of the 120-member parliament) and the second with 32 votes. The Chair of the Constitution and Law committee at the time, MK Uriel Lynn, explicitly told his fellow MKs before the vote, “We are not granting the Supreme Court greater weight…there is no room for a Constitutional Court…which [through this law] will be granted special power to overturn legislation.”
On November 9, 1995, only five days after the murder of PM Yitzchak Rabin, while Israel’s citizens were still in shock and mourning, the Supreme Court published a dramatic ruling in what was known as the “Bank Mizrahi” case. The Court President, Aharon Barak, decided, together with a majority of the justices, that the Basic Laws which had been enacted up to that point should be seen as having a higher constitutional status than other Knesset legislation or government action, and that these Basic Laws in fact constituted a Constitution for all legal purposes. In other words, Barak and his peers decided unilaterally that the Supreme Court can overturn any legislation or policy which they deem as standing in conflict with a Basic Law, according to their interpretation of it.
In the State of Israel, like in the UK and New Zealand, there is no Constitution. When the Supreme Court decided to grant the Basic Laws constitutional status, it turned Israel into the only country in the world in which it was not the citizens who established the Constitution but the Court.
But what is a Constitution?
A constitution is a text that was adopted by the citizenry through its representatives, which determines the ‘rules of the game’ in the political arena, and which cannot be changed through a regular political majority like other laws. Constitutions generally include a bill of rights, and in some cases, a definition of the state’s identity.
Israel has no formal constitution that was formulated and adopted by its citizens- it has a constitution that was established (some would say invented) by activist judges. The implication is that when the Israeli Supreme Court tells the public that a certain issue is ‘constitutional’, what it really means is that in the view of the justices, this is an issue where the citizens do not have the right to make their own decisions.
In practice, rather than a formal constitution, we have a fluid constitution. In essence, the worldview of the justices has become our constitution.
Since former Chief Justice Aharon Barak’s ‘constitutional revolution’ in 1995, the division of powers between the branches of government in Israel has become unbalanced, blurred and even chaotic. The Court unilaterally relieved itself of the previously-accepted limits to its actions and authority, and transformed itself into the decision-maker numerous critical public policy issues. The Judicial Branch- and under its protection, the government legal advisors – transformed itself into a political actor which actively advances its preferred policies, while weakening the ability of elected representatives to advance the policies which they were elected to enact.
The harm to Israel’s citizens from the current situation is two-fold. Firstly, the Court undermines the ability of Israel’s citizens to influence the policies that impact their lives. Secondly, there is no one who can protect the citizens from Court rulings that are injurious or clearly exaggerated.
The reality in Israel today is that there are 15 judges which select themselves, and who have the final word on every public policy issue. They have taken from the citizens the right to influence their own lives, and have taken from the public the ability to shape the nature of the State of Israel.
Over the years, the Supreme Court has overturned 22 substantive laws. This may not seem like a large number, but in fact the impact of the Court’s activism goes far beyond the actual number of laws it eventually overturns. The Court is able to block legislative proposals in practice via the Government Legal Advisors, who warn that legislation they dislike will not pass the Supreme Court. Policies and legislative proposals are not examined on the basis of their own merit or degree of public support, but rather through the lens of the ‘test of the Supreme Court’. Additionally, ‘creative’ Supreme Court interpretations of legislation empty laws of their content, and prevent them from achieving their desired goals.
One example is the Supreme Court’s undermining of Knesset legislation aimed at addressing the challenge of illegal immigration and infiltration. One after another, the Court overturned laws aimed at enabling the State to deal with the problem of illegal infiltration of migrants into Israel. The law to prevent illegal infiltration was overturned three times, even though each time it was rectified, and received the support of a majority in the Knesset. The “deposit law”, which was meant to create an economic incentive for the voluntary departure of illegal immigrants, was overturned as well. This, despite the fact that the law was legislated from the outset in accordance with the Court’s recommendation that the State deal with the problem of illegal immigration through economic tools.
With regards to the fight against terror as well, the Supreme Court has repeatedly tied the hands of the State. It forced the State to pay National Insurance payments to the parents of terrorists, prevented the cancelation of payments to the terrorists themselves, prevented the possibility of canceling the civil status of terrorists, and made it more difficult for the security forces to carry out targeted assassinations of terrorists in Judea and Samaria. In the words of former Supreme Court Justice Mishael Cheshin, “Chief Justice Aharon Barak is willing for 30-50 more people to be blown up, as long as human rights are preserved.”
The Supreme Court has hurt the Israeli economy through undermining economic certainty, property rights, and the freedom to enter into contracts. The ‘Aprofim rule’ (derived from the ‘Aprofim’ case) is a Court doctrine which holds that a judge has the ability to determine the content of a business contract, even if the judge’s interpretation differs from that which was agreed to and signed by the parties. This has created an uncertain and unpredictable business environment, and the danger of doing business in Israel has grown. As a result, business parties often prefer to turn to arbitration, or even to conduct their business from Cyprus or Singapore, in order to avoid going to court in Israel, The Court also harmed property rights and altered contracts for gas exploration retroactively- after gas was found. Changing the rules of the game post factum creates a real and tangible concern among foreign investors, and harms Israel’s economy.