Why Does Europe Care About Israeli Legal Reform? The Dark History of Judicial Interference on the Continent
Giacomo Bortolazzi
In the last few weeks, Israel saw a wave of protests against judicial reforms proposed by the country's ultranationalist government, currently led by Prime Minister Benjamin Netanyahu. These reforms could hamper the separation of powers within Israel, as they allow for the selection of its judges by the government, and require only a simple parliamentary majority to override the Supreme Court’s decisions.
The demonstrations have been organized on a weekly basis, sometimes accompanied by daily blockades during rush hour, and were widely attended by a diverse group of citizens. Those expressing worry about the reforms range from Israeli students to foreign governments. For instance, the German Chancellor Olaf Scholz discussed the proposed reforms with Netanyahu on March 16th, declaring to have followed the debate “with great concern", and wishing that Germany’s “partner in values, Israel, remains a liberal democracy."
Why are European democracies so concerned about the role of the judiciary? The decisions and reforms concerning this body of public power have been at the center of European constitutional debates for centuries, largely between the sects of Civil Law and Common Law. The importance of the judicial system needs to be contextualized: it represents a direct link between the citizens of the state, whose legal disputes must be adjudicated by the judicial branch, and the laws created by the legislative bodies, which must be applied, interpreted, or even reviewed by the Courts.
This last feature, called judicial review of legislation, was famously used by U.S. Chief Justice John Marshall in the 1803 landmark decision Marbury v. Madison. From that moment onwards, American courts gained the power to declare legislative and executive acts unconstitutional. The decision of the Court slowly influenced many European countries, which enhanced the power of their judicial branches. Such examples are Germany, which provided its courts with the power to examine the constitutionality of statutes, or France and Italy, where ad hoc Constitutional Courts are tasked with making sure that certain ordinary laws do not conflict with constitutional provisions.
The distrust towards judicial reforms in European Civil Law countries can also be attributed to the legal history of the continent. In particular, the traumatic experience of the Ancien Regime: the absolute monarchical system of government that preceded the French Revolution of 1789. This system led to a perception of courts as defenders of oppressive governments. Parliaments were by contrast entrusted with legislative activity and the protection of rights. This perception of the courts was further exacerbated by the 20th century authoritarian regimes’ use of the judicial system to cement and maintain their hold on power.
In contrast, countries belonging to the Common Law model, a legal system of British origin mainly based on binding precedents, were influenced by the experience of the American Revolution against the British Parliament. Under this perception the legislature was seen as particularly prone to oppression. This attitude, alongside the view of rights as pre-existing and inalienable, created a general trust in judicial review of legislation.
Judicial independence is fundamental for a functional democracy, respect for the rule of law, and access to impartial justice. However, some governments have attempted to interfere with the judiciary, either by appointing judges with political affiliations or by undermining the legal protections that guarantee their independence - a practice that could seriously compromise the branch’s effectiveness.
The independence of the courts is essential for a system of checks and balances to work through the reciprocal supervision of the public branches of power. However, this fundamental requirement should not cause political affiliation of the judges to be a reason for rejection. For example, Italy equally divides the composition of their Constitutional Court between members elected by various national bodies - from the Council of State, the Court of Auditors, the Court of Cassation, the Parliament and the Head of State himself - all in order to increase the representativeness and independence of the Judicial branch.
In the case of Israel, interference with the judiciary has resulted in harsh criticism over its politicization, and led to fears of unconstrained executive power. In the reforms the Government of Israel has proposed changes that would limit the Supreme Court’s powers to rule against the legislature and Prime Minister, and permits Parliament to override the Court’s decisions with a simple majority, thereby creating a weaker Supreme Court and a stronger Parliament. With effective control over judicial appointments the reform’s opponents worry that it would create a system where the Prime Minister has control over all the branches of government.
A similar situation can be found in Poland, stemming from the Polish Constitutional Tribunal crisis of 2015. The Sejm (Polish Lower Chamber of Parliament) passed an act to replace five judges ending their terms that same year. However, only 3 of the judges were set to end their terms during the seventh Chamber’s session, while the remaining 2 judges’ terms were set to expire in December during the eighth session of the Sejm.
In an unprecedented turn of events, the seventh chamber controversially decided to elect all 5 judges at once. This action was decreed unlawful by the newly elected Law and Justice party of the eighth Sejm. They immediately passed a resolution to declare the judges’ election by the seventh Sejm void of legal effect and elected 5 new judges. The result of this dispute was a stalemate wherein the judges elected by the seventh Sejm could not adjudicate because they had not taken their oaths before the President of the Constitutional Tribunal. The judges elected by the eighth term were not allowed to be adjudicate by the President of the Tribunal either, as their positions were already held by the previously elected judges. The following President of the Tribunal recognized the legal status of Law and Justice Party’s 3 unlawfully elected judges, effectively negating the court’s political independence.
These Polish elections were followed by other legislation that allowed governmental appointment of judges to the Supreme Court, the reduction of retirement ages for judges, and gave the Minister of Justice the power to dismiss court precedents. These all caused serious concern over the reduced autonomy of the judiciary. Warning signals also came from the European Commission, which launched proceedings against Poland for breaching European common values and rule of law, and threatened to trigger article 7(1) of the Treaty on European Union, and eventually led to sanctions of Poland and a suspension of their EU voting rights.
A similar situation is happening in Hungary. The Fidesz majority party, led by prime minister Viktor Orbán, has been accused of passing laws that would give the government more control over the judiciary by removing independent judges and replacing them with loyalists - mainly in the Hungarian Constitutional Court by controlling the nominations committee. These new laws interfering with the independence of the judiciary have been condemned by many NGOs, such as Human Rights Watch in its annual report from 2013, as strongly hindering religious, gender, reproductive and representative rights for many members of Hungarian society.
In February 2012, a delegation of the Venice Commission, the Council of Europe's advisory body on constitutional structures, visited Budapest and reported a number of issues in its subsequent draft opinion. They claimed that the accountability of the president of the National Judicial Office (NJO), Tünde Handó (who also had close ties to Viktor Orbán and his party), must be increased and his decisions judicially reviewed. Furthermore, they found that the President of the NJO had very broad powers, which were not subject to any kind of judicial control or veto by the National Judicial Council: the very organ tasked with supervising the head of the NJO. The Commission states that no other member state of the Council of Europe delegates such important powers, including the power to select judges and senior office holders, within a single person. In contrast, the internally elected Hungarian National Judicial Council was deemed to have no significant powers in the administration of the judiciary.
Amnesty International wrote in its 2021 Report on the Status of the Hungarian judiciary that “the [underlings] of [Viktor Orban] or key figures in judicial administration oftentimes send chilling messages in the judiciary to discourage judges from exercising their right to free expression”. The ongoing politicization of the judiciary in Hungary was eventually defined by a European Parliament Resolution on 15 September 2022 as an “electoral autocracy”.
The task of the judiciary to protect rights and interpret laws in Europe was obtained through a long evolutionary path. The courts’ independence and impartiality are constantly put into jeopardy, but the need for such a crucial branch of government to evolve must not be ignored. Oftentimes reforms of the judiciary are criticized irrespective of their content: this is also true in the case of the proposed reforms in Israel. Now more than ever it is important to carefully balance the need to constrain judicial power with the dangers of overly politicizing the courts by leaving too much room for governmental interference. However, the judiciary risks falling into irrelevance if prevented from adapting to the times.