Israel’s current judicial reform crisis and the future of constitutional democracy in the Jewish state

The airwaves and social media have been abuzz in recent weeks about the Israeli government’s program to reform the Israeli judiciary. Tens of thousands of protesters have crammed the Jewish State’s highways and bi-ways in an attempt to shut down the newly elected government’s premier legislative agenda, claiming that the proposed reforms would spell the end of Israeli democracy and the institution of a dictatorship. Nothing could be farther from the truth.

It is no exaggeration to say that the Israeli Supreme Court is probably the most powerful court in the world. Filling a vacuum created by the paralysis of the country’s political branches, a Supreme Court President named Aharon Barak, single-handedly reconfigured the constitutional balance of power in the mid-1990s through a judicial sleight of hand. First, Barak interpreted the Basic Law: Human Dignity and Liberty, 5792-1992, which passed the Knesset by a vote of 31-21 (there are 120 members of Knesset), to grant the Supreme Court the right to overturn Knesset legislation and Government action based on fundamental principles even though Israel has never adopted a constitution. In other words, any judge in any court can invalidate laws that in his/her opinion contradict the fundamental values or the fundamental laws. Who determines those fundamental laws and values? The judges themselves.

Second, Barak’s Supreme Court abolished virtually all principles of justiciability, which in other democratic systems act as a brake on judicial intervention. Thus, there is no requirement that High Court petitioners demonstrate standing to challenge legislation or executive action. A petitioner need not have any personal or concrete interest in the case or controversy. In fact, there need not be a case or controversy of the sort required by Article III of the U.S. Constitution for example. This means that anyone seeking to contest the “constitutionality” of a statute, regulation or executive action can bring a petition in the Supreme Court sitting as a High Court of Justice to obtain a judicial ruling.

Third, Barak’s Supreme Court applying judicially created principles of democracy and good government began interfering with the collective will of the electorate, by disqualifying ministers and other government officials without any statutory authority to do so. This meant that frequently the Supreme Court had as much or more to say who could sit in the Government than the voters themselves.

Fourth, decisions of the High Court of Justice are not based on a record developed by lower tribunals based on probative testimony and other competent evidence tested by the rules of evidence and cross-examination. Rather the High Court rules based on affidavit evidence supplied by the parties without the benefit of the adversary procedures needed to vet and validate the evidentiary record.

Finally, under Israel’s highly controversial system of selecting judges on the Supreme Court and inferior tribunals, Barak’s judges effectively could determine those who were appointed to the Supreme Court thereby perpetuating Barak’s judicial revolution.

“In fact, there need not be a case or controversy of the sort required by Article III of the U.S. Constitution for example.”

this transformation and developed it over the years. An expression of this attitude, which is clearly anti-democratic, is manifested in the intensive implementation of the pretensions to engage the court in “judicial legislation” and “judicial statesmanship”.

Ironically, the current Government’s attempts to curtail judicial overreach and restore balance among the collateral branches of government has been demonised as “anti-democratic” and even fascist. This is pure demagoguery. However, because the current centre-right government was elected by the greatest majority in recent election cycles, the campaign against judicial reform has become a vehicle for the defeated centre-left parties to overturn the results of the election.

To add to the confusion, Israel’s Attorney General operates to oversee the Government’s role in the judicial process, but the Attorney General is not subservient to the Government. The Attorney General is arguably the most powerful official in the entire world. His cluster of roles has no historical or modern equivalent in the democratic world. He serves as a consultant whose advice is final and binding, as the representative of the executive authority before the judicial authority, as the supervisor of the criminal prosecution and as someone who is authorised to represent the “public interest”. In addition to the disqualification of laws by the courts, hundreds of bills have already been stopped in the various government ministries due to the binding decision of legal advisors who believed that the proposals would not pass the “test in the High Court of Justice”.

The Supreme Court and the Attorney General work symbiotically. The Supreme Court has held that the Attorney General’s decisions do not allow the government to act contrary to his opinion or to use alternative legal representation, unless the Attorney General has given his consent to this. The symbiosis between the Attorney General and the judiciary is evidenced by the extraordinarily high criminal conviction rate that exists in Israel.

This state of affairs, which borders on real madness and chaos, has prompted a counter-reaction by those advocating judicial reform that is much more extreme than what is necessary to restore the system to the proper balance among the executive, legislative and judicial branches. This counter-reaction has fuelled the fury of the “democracy” protesters to the point that threatens the functioning of Israel’s government institutions, including the security forces.

The Government’s reform proposals can be summarised as follows:

  • The proposals will formally acknowledge for the first time the Supreme Court’s power to invalidate legislation.
  • The composition of the committee for the appointment of judges will also change. In the vast majority of democratic countries judges are appointed by those who hold a majority in the parliament, the coalition or the government supported by the parliamentary majority. The government’s proposals support both the representation of the judiciary and the representation of the opposition in the committee.
  • A third proposal involves the institution of justiciability principles in order to restrict the right of petition to those who have a personal and concrete interest in the controversy.
  • A fourth major issue is the regulation of the functions of the Attorney General: the separation of functions, headed by presidents of the Supreme Court. In this area, the intention is to also deal with arrangements for auditing the Attorney General and the State Attorney’s Office and the unlimited power that the ombudsmen currently have in the government ministries.
  • The fifth main issue is the use of the standard of reasonableness in the judges’ decisions. Today judges can invalidate the intentions of the executive authority even when they are legal and meet the requirements of common administrative law. “Reasonableness” is largely a subjective matter. From the beginning, the Minister of Justice declared a total cancellation of the use of the reasonableness standard, but now it is clear that the coalition is willing to compromise on this matter.