Home inFocus Trials & Triumphs: Israel at 75 (Spring 2023) How Court Reform Will Strengthen Israeli Democracy

How Court Reform Will Strengthen Israeli Democracy

Avi Bell Spring 2023
Demonstrators against Prime Minister Netanyahu’s Supreme court reform block the Ayalon Highway in Tel Aviv. (Photo: Oren Rozen)

No observers of Israel can be unaware of the vast gap between the reality of the country, on the one hand, and the news media-reported version, on the other. Yet, even against that background, recent discussions about Israel’s proposed judicial reform are exceptional. In media reports, Israel’s Knesset is considering a set of proposals to “demolish” democracy, establish “dictatorship,” terminate human rights, and destroy everything from Israel’s economy to its medical system to nature itself. The reality of the proposals is very different – they are reforms that have been mooted for decades to correct serious and recognized flaws in Israel’s legal system.

To understand the proposed judicial reform requires an understanding of what it reforms.

Israel has operated under two entirely different constitutional-legal regimes during its short existence. The first legal regime lasted roughly from the founding of the country in 1948 until the ascension and reign of Aharon Barak over Israel’s Supreme Court during the 1980’s, ‘90’s, and early 2000’s. In its first legal regime, Israel was a fairly typical Westminster parliamentary democracy. Israel’s elected Knesset was supreme; like Britain, Israel did not adopt a written constitution.

Governments were approved by the Knesset, and could last only so long as they enjoyed the Knesset’s approval. Israel’s legal system was largely based in British law with some continental and, particularly German, influences. The courts comported themselves in accordance with the legal heritage from the British mandatory government, and were initially staffed by professional judges appointed by the government and approved by the Knesset. In 1953, Israel shifted appointment power to a professional committee comprised of some elected officials, some judges and some lawyers.

The second legal regime was instituted by Aharon Barak and his colleagues on the Supreme Court and has lasted until the present day. Aharon Barak was appointed to the Supreme Court in 1978. He became President (chief justice) of the Court in 1995, in which post he remained until mandatory retirement in 2002. Barak was an unabashed revolutionary; he himself chose the label of “constitutional revolution” for one of his more controversial innovations, the court’s fabrication of a power to cancel parliamentary legislation.

Barak and his colleagues’ changes to the legal system were systematic, comprehensive, and revolutionary, implemented slowly and methodically over decades. Barak also seized functional control of the judicial appointments committee, ensuring ideological uniformity on the court and unquestioning loyalty to his agenda of judicial aristocracy. Although Barak has not served in the court for two decades, his successors, many handpicked by Barak, have continued in his revolutionary path.

The Barak-era revolution vastly expanded the power of the court at the expense of the democratic branches of government and of individual liberty. The Court shuttered radio stations, ordered television and radio programs off the air, denied political parties and individual politicians the right to run for office, blocked senior appointments, fired elected officials including the Speaker of the Knesset and government ministers, and it terminated military operations. The Court cancelled some kinds of welfare payments and created others. It cancelled some kinds of taxes and created others. It cancelled government contracts and ordered others.

It transferred decision making authority from the Knesset, the government, mayors and city councils to itself and to legal advisors (including the Legal Advisor to the government) whom it deputized to the will of the Court. The Court systematically eroded the rights of the criminally accused, especially in the cases of public officials, by authorizing the use of illegally obtained evidence, functionally approving unlawful surveillance, and eviscerating the presumption of innocence. And the Court made its authority final and absolute, notwithstanding any law to the contrary. The Supreme Court has decided that Israel has a constitution after all, and its content is determined by the Court from time to time, according to contradictory principles that the Court has never fully articulated.

The Barak-era Supreme Court has downgraded Israel from a full-fledged democracy to a tutelary democracy, in which democratic governance is subordinated to a judicial aristocracy. The Court (together with subordinate government lawyers) is uniquely powerful in the democratic world. Israel, for instance, is the only country in the democratic world in which a Supreme Court can cancel legislation without any legal or constitutional authority or bond. In today’s Israel, it is the Supreme Court that reigns supreme, not the elected representatives of the people. The Court’s ideological guidelines are sometimes liberal, but more frequently populist, progressive, socialist, and self-aggrandizing. The Court recognizes no limits on its powers and brooks no challenges to its authority.

With this background, it is possible to understand the debate about judicial reform. While they differ in details, all the judicial reform proposals can be summarized in one sentence. They all cancel or limit changes to the legal system implemented by the Barak-era court. With one exception, all the proposed changes directly revise or eliminate the Barak era’s most controversial doctrines, such as the Court’s unlimited power to overturn legislation or government actions with which it disagrees. The one exception concerns the appointment system: all the proposed judicial reforms address the Barak-era court excesses by modifying the appointment procedure to break the ideological uniformity of the Barack era supreme court. Obviously one can argue about the wisdom of any particular element of the proposed reform. But no matter which proposal is adopted, Israel will end up with a liberal-democratic legal regime that is somewhere in between its initial form, and the Barak-era tutelary democracy. Israel’s democratic character will be enhanced, not harmed, by the reform. To claim that the reforms will end democracy in Israel, as opponents do, is to claim that Israel only became democratic 40-50 years after its founding, under Aharon Barak and his colleagues’ tutelage.

Consider, for instance, the controversy over various “override” provisions within the reform proposals. Several versions of the reform would allow the Court to continue its Barak-era practice of cancelling parliamentary legislation but limit it. The Court would not be able to overturn laws that the Knesset labels “Basic Laws” or other laws that the Knesset insulated in advance from review. The Court would only be able to overturn laws on the basis of Basic Laws, rather than willy-nilly the way it does today. Additionally, if the Court overturned a law, the Knesset could reverse the Court decision by vote of an absolute majority of Knesset members.

Such reversals would certainly be rare. Due to strict in-person voting requirements and relaxed quorum rules, almost no Knesset legislation is passed by an absolute majority in any of its readings. The one existing override clause in Israeli law (in Basic Law: Freedom of Occupation, which permits overrides with an absolute majority of 61 out of 120 members of Knesset) has been successfully exercised once in 29 years. The result would be a court with greater power to overturn Knesset legislation than before Barak’s “revolution” but less than today.

The one exception to direct revisions or revocations of Barak-era innovations – updating the appointments process – is a modest one. All the proposed versions of judicial reform retain the existing structure of judicial appointment by committee, rather than directly by elected officials. Today, all judges are appointed by a committee with three Supreme Court justices, two ministers in the government, two other members of Knesset, and two lawyers chosen by the Bar Association. Because the Supreme Court justices coordinate their votes (contrary to the law), and seven affirmative votes are required to appoint anyone to the Supreme Court, current justices can veto any new appointments. And because the justices sit on the committee until retirement, while the other members turn over frequently due to elections, the judges can ensure their candidates always win by simply waiting for the committee’s composition to change. The proposed judicial reform does not return Israel to its initial system of appointment by the government with approval by the Knesset (a system very close to the United States’ appointment by the president and approval by Senate). Instead, it adds more members of government and Knesset to the committee, eliminating the judicial veto, and enabling the appointment of Supreme Court justices that are not aligned with the judicial aristocracy.

What, then, explains the hysterical response of reform opponents? In part, opponents seek to defend the Barak-era regime. Naturally, the justices themselves and their deputized government lawyers seek to preserve the unlimited power they have seized. But beyond them are many who harbor deep suspicions of electoral democracy, and who would much prefer that a left-leaning judicial aristocracy manage the affairs of state than the Great Unwashed. In support of their claims, these opponents have developed an entire Orwellian vocabulary, in which true “substantive” democracy is comprised of governance by a judicial elite that knows the public’s true desires and needs, while governing by elected representatives approved by a majority of the public is nothing less than tyranny itself.

Opponents turn every accepted concept of democratic and liberal government on its head in order to claim that Israel must retain the Barak-era judicial aristocracy. They argue, for instance, that there can be no liberty if any organ of the state has unlimited power, and, therefore, the Israeli judiciary must continue to enjoy unlimited power. Likewise, they argue that Israel needs checks and balances among its institutions, and therefore the Knesset must be deprived of all power to check the courts.

But to a much greater degree than arguments of substance, the opposition to judicial reform must be seen as an artifact of Israeli democracy. The opposition opposes judicial reform because it is a centerpiece policy of the current government, no matter what its content. Israeli politics have always been hyperbolic, and the opponents’ rhetoric upholds this dubious tradition. Thus, opponents describe judicial reform not simply as a policy to be opposed, but rather as the transformation of Israel into a fascist dictatorship, a theocratic autocracy, and an exit from the family of democratic states. To a large degree, the debate has been ad hominem, with opponents rejecting reform on the grounds that reform politicians’ motives are largely political, although, naturally, opponent politicians’ motives are also largely political. None of these arguments affects the merits of the proposal.

There is an irony to the opposition to judicial reform – its existence and character demonstrate in practice exactly why the opponents’ claims of incipient dictatorship are nonsensical. Even in the era before Barak’s “constitutional revolution,” constitutional scholars agreed that Israeli governments and parliaments are exceptionally weak when compared to other democracies. All governments in Israel are unstable and subject to be undone in minutes by political bargains. The political logic of the opposition is to create chaos to destabilize the government and bring about new elections. It is, the opposition believes, exactly how the 1999 opposition toppled Prime Minister Netanyahu’s then-government, and, in their opinion, how the 2022 opposition toppled then-Prime Minister Naftali Bennet’s government.

Chaos works as an opposition strategy precisely because the opposition’s claims of unlimited government power (absent the court) is a lie. Governments in Israel last only as long as they enjoy the confidence of parliament, and governments have never lasted to term, even in the pre-Barak era. There have been 37 governments for 25 parliaments, meaning one half of all governments fail to last even the term of the Knesset. Knessets typically fall to early elections, and no party has ever won a majority of seats in the Knesset. The idea that judicial reform could lead to all-powerful Israeli governments is risible.

One of the central reasons for Israel’s electoral instability is proportional representation. Israeli elections are not conducted by district, but at-large, with even small minority parties winning representation in the Knesset. John Stuart Mill identified proportional representation as a democratic technique for protecting minorities centuries ago, and constitutional scholars of Israel have often complained that minority interests are too powerful (for instance, that ultra-Orthodox Jews are able to win draft exemptions and generous welfare payments by trading their minority votes). When opponents claim that Israeli minorities will be left unprotected if judicial aristocracy is curbed, they are arguing that Israelis should reject the wisdom of their experience in favor of a hollow cliche.

The battle for judicial reform will continue in Israel with the characteristic amounts of noise, demagoguery and anger, but in the end, the democratic process will win out. And lovers of liberal democracies should be all the happier if judicial reform prevails.

Avi Bell, J.D., is a professor of law at Israel’s Bar-Ilan University, a professor at the University of San Diego law school, and a senior fellow of the Kohelet Foundation.