A Judicial Revolution and Counterrevolution: A Case for Judicial Reform In Israel
Ilan Hulkower
"You shall appoint judges and officials throughout your tribes, in all the settlements that the Lord G-d is giving you and they shall govern the nation with righteous justice.
- Deuteronomy 16:18
At the time of this writing, a number of Israelis are on the street for the 15th week in a row to protest a now delayed judicial reform package proposed by their government. At present there are tentative negotiations between the government and elements of the opposition over the content of the reforms. The reforms proffered by the government mainly concern (1) ending the Supreme Court’s ability to override the legislature's Basic Laws (laws of a quasi-constitutional status), (2) the scrapping of vague legal standards, (3) that the attorney general ought to represent the government's view in court and their legal advice be non-binding, (4) stopping the court from dismissing governmental ministers, (5) a controversial parliamentary override on the court in terms of regular laws, (6) changes in the selection of justices on the court to make elected officials have more say, and (7) the formal granting to the court by the legislature for the first time the power of (limited) judicial review. To the casual observer, however, the cause of reform may be lost without examining how the country got to this point. This article seeks to give a background to the reforms and state the case for most of them.
When David Ben Gurion publicly read the declaration of independence of the State of Israel on the 14th of May 1948, this proclamation included a provision that a constitution shall be adopted no later than 1st of October of that year. The constitution for the state never happened and in lieu of a singular written document that laid out the structure of government and the fundamental law of the land, quasi-constitutional Basic Laws passed by the Knesset, Israel’s parliament, stood in its place.
In the 1995 United Mizrahi Bank v. Migdal Cooperative Village decision the Israeli Supreme Court under its President Aharon Barak retroactively claimed that there had been a “constitutional revolution” in Israel and that two 1992 Basic Laws “endowed the State of Israel with a constitutional bill of rights” from which the court could give themselves vast judicial review powers.
Never mind that the two Basic Laws that were the basis for the usurpation were only passed with votes of 32-21 and 23-0 of the 120 man chamber respectively and that the laws were not written by the members of Knesset with the purpose of forming a constitution or granting the court such broad judicial review powers in mind. On the contrary, as one history professor looking back at that point wrote “[t]he domination of the court…was exercised without official [legislative] authority…Not only had the court demanded judicial review… it had gone beyond the judicial supremacy as practiced in the US, because it [the court] was composing a constitution.”
This unilateral usurpation of power was now coupled with Aharon Barak’s judicial philosophy which proclaimed that “the world is filled with law… There are no areas in life which are outside of law.” This act of legal legerdemain by the Israeli Supreme Court in granting itself vast powers of judicial review overturned previous institutional balances on the court. It effectively meant that the court could grant itself any power it wanted. It could (and has) dismissed government ministers, it could (and has) dismissed laws or governmental decisions based on the vague standard of being merely “so unreasonable as to be illegal” (even when no law, Basic or otherwise, prohibited it), and even potentially go further. As the main parliamentary architect of the modern judicial reform effort, Member of Knesset (MK) Simcha Rothman mentioned that one concern of his was that there was a school of thought that the Israeli Supreme Court had the power to block any changes to Basic Laws (or Basic Laws in themselves) that they do not like. The danger was as he put it:
The equivalent in the US [is that] if there will be a change in the constitution and the Court will say “I don’t like the 18th amendment! I don’t like the 19th amendment! I think it is unconstitutional and I will disregard it or even cancel it” …One of the judges on the [Israeli] Supreme Court said that a Basic Law that says Israel is the homeland of the Jewish people should be voided by the Court because it is [an] unconstitutional constitutional change.
Proper democratic constitutional (both of the written and unwritten kind) systems are predicated on the idea that there are checks and balances within the system. A court that has no limits on the scale and scope of what it can review, override, and effectively engage in, what Aharon Barak favorably called, “judicial legislation” cannot be considered to be functioning as a proper judicial body.
Now added to this body with theoretically nigh limitless power the fact that the justices on the bench and the pro-revolution Israel Bar Association have votes over who gets to succeed the judges. You have in essence a system where unelected officials can have veto power over who gets into the Supreme Court. Activist judges have not been slow to take advantage of the selection system as in the case of Aharon Barak vetoing the nomination of the anti-judicial revolution Professor Ruth Gavison to the Supreme Court in 2005. Barak brokered no restorationist rival judicial philosophy on his court. In effect, the Supreme Court selection process tends to accept those who have accepted in part or in whole Barak’s revolution.
Further adding to this problem is the fact that the position of attorney general is also noted for being a traditional steppingstone to the Supreme Court and Barak ruled that this post, which he used to serve in, has expanded powers to effectively scrap any governmental proposal that it deems illegal or unreasonable without judicial review. The attorney general has all the incentive to become an agent of the Supreme Court without the need for direct intervention by the judicial branch. Through these means the Supreme Court has become an unaccountable reserved domain of power.
This notion of the 1995 Constitutional Revolution going too far was previously at least shared by a broad swath of political parties. MK Yair Lapid, the current head of the Israeli opposition and now an avowed critic of the judicial changes proposed by the government, concurred with such analysis when he said in a 2016 speech to the Kohelet Policy Forum:
I have opposed, and I still oppose, judicial activism of the sort introduced by [former Supreme Court President] Aharon Barak… I don’t think it is right that everything is justiciable. I don’t think it is right for the Supreme Court to change fundamental things in accordance with what it refers to as the judgment of ‘the reasonable person.’ That’s an amorphous and completely subjective definition that the Knesset never introduced to the legal code. It’s not right in my mind that the separation of powers, the sacrosanct foundation of the democratic method, should be breached by one branch of government placing itself above the others.
Mr. Lapid publicly spoke in favor of legal reforms as late as September 2022. Nor is Lapid the only individual to have such a conversation experience toward the court. Opposition MK Matan Kahana of the National Unity party commented in a Facebook post back in 2020:
Once again, the High Court tramples [on] democracy…The High Court ruling is the continuation of the erosion of the delicate balance required in democracy between three authorities [i.e. branches of government] …The time has come for a recovery period that will return the country to the people.
Former Netanyahu ally and current opposition MK Gideon Sa’ar similarly blasted the activist Supreme Court, lamented that their ruling as leaving the state “without tools” to deal with problems, and called for limitations on judicial authority back in 2014. MK Sa’ar ran in 2021 on the issue of judicial reform and curbing the Supreme Court’s overmighty powers. Why then did the current government’s judicial overhaul plan engender such controversy?
Let us cast aside the shrill sky-is-falling jeremiads of the reforms bringing about the doom of Israeli democracy, the death of the Israeli economy, and the erosion of Israeli security. (These rallying cries being perhaps more indicative of what some in the crowd are trying to achieve in the event of the reforms’ passage than an earnest and rational warning.) According to Yair Lapid, his opposition to the current overhaul proposal rests on the fact it is a “unilateral revolution against the system of government in Israel.” The irony is that his statement about the reform package can just as easily be said about the Supreme Court activism that brought forth the call for reforms. Opposition MK Oded Forer of the Yisrael Beiteinu party was perhaps a bit more candid when he said that the reforms individually may be fine but “the problem is when you put them all together.” The reason being that the reforms could make for unchecked parliamentary supremacy, which eventually leaves all major decisions to be decided by the government without significant checks. In other words, the concern is out of the problems of concentrated overmighty judicial powers that were the result of the 1995 Constitutional Revolution, its modern-day counterrevolution would create problems of concentrated overmighty governmental powers.
It is on that matter that law professor Yaniv Roznai pointed out the ease of which (most) Basic Laws can be changed and how this can be problematic. Professor Roznai said in a public debate with MK Rothman:
[On] May 2018 our Knesset amended a Basic Law… [which concerned] the way by which the government can go to war, which is probably the most important constitutional rule that exists in a constitution. They amended it quickly without any public deliberation…they changed it so the person that can declare how to go to war is the Prime Minister together in consultation with the Minister of Defense. What if it is the same person? What if it is one politician?...They made it very quickly but afterwards people told them “but it is unbelievable, how you can do such a thing.” So, three months later they reversed that decision and again amended [the] Basic Law of the government. But this is to show you how quickly, how hastily, and without considerations our politicians amend our Basic Law.
In the same debate, Professor Roznai mentioned how he better trusts the Supreme Court with the safeguarding of human rights, rather than the Knesset and how the reforms proposed by Mr. Rothman would endanger those rights because they would then ultimately rest on a parliamentary vote and the fickleness of politicians. One may readily admit that the passage and amending of Basic Laws ought to be made more difficult due to the special status implied by said laws. That being said, at least in the case highlighted by Professor Roznai, public pressure did lead toward parliament correcting its mistake.
As for the record of the court in democracies being stalwarts of civil liberties that is, however, more muddled. In the United States at least a number of infamous legal decisions by the courts have led toward the denial of rights to people, ranging from Dred Scott v. Sandford (1857), Plessy v. Ferguson (1896), Buck v. Bell (1927), and Korematsu v. United States (1944) to name a few. In the case of the Israeli Supreme Court, there are allegations arising from the conservative and religious voter base of the governing coalition, who believe that neither the Supreme Court nor the legal establishment protects their rights and only protects “the segment of society from which they [the court and legal establishment] themselves come. As one example…[the alienated voter base cites is] the intolerable ease with which people from the “wrong” groups are held without bail until the end of their trials.”
The legal analyst Evelyn Gordon lists several examples of such justified grievances against the court. In one example in her lengthy essay on the subject, she noted that:
…during protests against the 1993 Oslo Accords and the 2005 disengagement from Gaza, thousands of demonstrators who blocked roads were beaten by police and jailed; the jailing of protesters was approved by the entire legal establishment—the prosecution, lower courts, and the Supreme Court. Moshe Feiglin, later a Likud MK, was charged with sedition for advocating civil disobedience and sentenced to jail (though the sentence was commuted to community service); his conviction and sentence were upheld by the Supreme Court. Today, too, there are widespread calls for civil disobedience; protesters have blocked roads on a weekly basis and also staged more severe disruptions, including collective refusals to do reserve duty and blockading Israel’s ports and airport. Yet almost nobody has been kept in jail for more than a few hours, and certainly nobody has been charged with sedition.
Surely civil liberties at their very essence mean equal treatment and protection under the law. Yet, this is one example out of many of the Israel Supreme Court being accused of holding a convenient and biased double standard and applying the law unequally.
Yet there is a notion posited by European countries, many of whom do not have a common law tradition like Israel, that any “judicial interference” by parliament amounts to an erosion of liberal democracy. This ignores that a branch, like the court, that operates without significant checks on its own power also undermines liberal democracy. Tellingly, there is no great analysis by said foreign philosopher kings about how exactly the content of the Israeli reforms does this. The open interference run by the European Union (which has democratic deficits of its own) and even the United States in matters of Israeli domestic import ought to concern anyone who believes in democracy. After all, democracy at its most basic distillment means voter sovereignty.
Still, what about the protesters' criticism that the current reforms proffered are too extreme and that the discussion over the content of reforms has been too short? The reform bills have been subject to massive scrutiny as the months-long protestations themselves demonstrate. Yet, the general discourse of reform has been around for decades and the first (and so far only) law concerning the current judicial reform package only passed on March 23rd. The immediate discussion about judicial reform began on January 11, 2023 when the government unveiled its general proposals. The election that brought in the current nationalist-religious coalition was fought on whether the public thought that Prime Minister Netanyahu’s indictments and trials were sufficient grounds to vote against him and a government led by him. MK Simcha Rothman, the parliamentary manager of the reforms, said that he expected that the reform proposals would be moderated through engagement with the opposition. Mr. Rothman went further still by saying that “I don't even want to pass the legislation exactly as it was written in the precise language it appears in the draft. It will be changed and it should be changed.” Basically, the text of the reforms was open to bargaining.
Mr. Rothman has acted upon those words too and the government has pitched and accepted revised proposals from their original position. Prior to the halt in legislation, the government expressed its desire for a negotiated settlement with the opposition but as one anti-reform source admitted “Lapid, however, did not take advantage of the opportunity.” In effect, the opposition did not meaningfully talk. This is not to write that the opposition has no right to protest or take its cause beyond the halls of parliament, they do. This is merely highlighting that the chances to water down what the opposition sees as the extreme elements of the reforms was there prior to the formal halt in the proceedings.
Nor was Mr. Rothman eager to take away anyone’s civil liberties. He insisted that should anyone demonstrate that any of his reforms violated key Israeli Supreme Court precedents like the 1953 Kol Ha’Am case that protected freedom of the press then he would immediately amend the draft to avoid such a thing. To quote Rothman back in early February:
I will just say this, and I hope it will settle the dispute down. Kol Ha’Am is a very important case…it did not cancel any Knesset law, that is why this judicial reform has nothing to do with it. I asked specifically…in the committee room…the legal adviser and…[asked] him if anything we are doing here today will prevent the court from giving the exact same ruling as in Kol Ha’Am…the answer [I received] was no. If you [the adviser] think that anything we are doing here today will be- or tomorrow- will prevent those rulings [favorable to civil liberties] given in Israel before 1992 and 1995…please raise your hand and prevent me from doing it because that is not my intention and offer changes to the reforms based on that.
Nevertheless, one can argue that Israel ought to have a written bill of rights and that the 1992 Human Dignity Basic Law ought to be amended to better define and protect civil liberties and enable the courts to strike down ordinary laws contrary to such civil liberties. Still even some legal analysts who are critical of the reforms agreed that even if they were passed in their original unmoderated form, Israel would still remain a vibrant democracy. Alan Dershowitz, who was cited by the anti-reformers as a prominent authority for their cause, conceded as much while viewing many of the reforms as potentially compromising the quality of the judges and their rulings on the bench. He opined about them:
In some respects, it [the reforms] would make Israel more democratic. If all of these reforms were enacted—and I oppose most, but not all of them—it would turn Israel into, God forbid, Canada or New Zealand or Australia, or many European countries. It would not turn it into Poland. It would not turn it into an autocratic country.
Eminent Canadian jurist Irwin Cotler basically admitted the same thing when he stated that the reforms “would [not] take Israel down the road to Hungary and Poland for all the reasons that I mentioned.”
One may still argue that even though the Supreme Court during the days of Aharon Barak acted immoderately and outside the bounds of traditional checks and balances, such politicized use of the court does not happen in Israel today. Even if this were the case, this ignores the fact that Barak’s Constitutional Revolution remains intact and theoretically nothing stops the Supreme Court from reverting back to such major activism. Furthermore, there is abundant evidence that these politicized practices still occur by the court. The recent dismissal of Arye Deri from his position in the government by the Supreme Court’s order on account of it being “unreasonable in the extreme” is one such example. Similarly, the overly broad gag order by the attorney general that previously prevented Netanyahu from taking part in the debate over the reforms due to a murky conflict of interest being present. None of the proposed reforms would allow Netanyahu to select the judges overseeing his trial and as such no conflict of interest is reasonably present. A conflict of interest can be argued on the part of the attorney general, who was appointed by the previous anti-Netanyahu government, and who has acted at every step to derail the reforms. Such reforms as mentioned in the beginning paragraph of this article touched on the powers of the attorney general. Nevertheless, the Supreme Court found that the attorney general did not have a conflict of interest. There is also pressure from the anti-reform legal intelligentsia on the High Court to strike down the Basic Law reforms by the government should they pass. Put simply, to imagine any government institution as free from politics is fantastical.
None of this is to write that the reforms as they are perfect. There are hints to this fact throughout this article. Personally, it would be desirous if a greater majority to pass and amend was required for Basic Laws. Whether this threshold is 70, 80, or 90 MKs is fine with me. A better written bill of rights can be passed (or amended) as a Basic Law that would clearly define what set of rights the courts could use to override ordinary legislation and better prevent judicial overreach. The reform permitting Knesset overriding the Supreme Court in the event of an adverse ruling on ordinary legislation should be dropped. Whether the government (and opposition) can deliver such personally desired items (or even on the overhaul itself) is a different matter. Ultimately though the tone, tenure, and content of the reforms (or lack thereof) should be up to the Israeli people and their duly elected representatives to be free to decide.