Israel’s Exaggerated Judicial Crisis

AMAC Exclusive – By Daniel Berman

At a time when liberal America has written off the U.S. Supreme Court as a threat to “human rights” and even “democracy”, liberals in Israel are marching in the streets to protest efforts by Israeli Prime Minister Benjamin Netanyahu to overhaul the country’s judicial system. The irony is that the structure of the Israeli court that they are defending, derived from the British tradition, is not only anti-democratic, but has more than a few similarities with the filibuster and other institutions which liberals detest in the United States.

American liberals, especially in the media, who have shown solidarity with the Israeli protestors have largely done so out of sympathy for the policy ends which they believe the Israeli Court defends, and from hostility to Netanyahu and what his coalition’s policy agenda.

Much of the coverage of the debate over judicial reform in Israel, both in the United States, but also on the left within Israel itself, is from an American constitutional perspective where separation of powers is inherent to democracy. This is understandable for Americans, who grow up learning about the core principles behind our own Constitution, featuring a complex system of checks and balances.

Israel is different in fundamental ways. Rather than being based on the American model of co-equal branches of government, the Israeli Basic Law and legal system is modeled on Great Britain’s, where Parliament, or in Israel’s case the Knesset, is the sovereign voice of the people. The president is elected by the Knesset and wields little independent power.

There are two other adaptions of the British system which separate the Israeli system from the American system.

First, in the American system, the judiciary is a co-equal branch of government, both independent of, but also dependent on, the other two. Both the Congress and president are elected, while the Supreme Court and federal judiciary are appointed by the president and confirmed by the Senate.

In Israel, by contrast, the courts are administrative, treated like elements of a professional civil service, with internal “merit-based” promotions.

In theory, this is because it exists to administer the instructions of a sovereign Knesset. In practice, these assumptions have run into the second adoption from the British system: no written constitution.

While Israel has a Basic Law, it is incredibly vague, prescribing duties for government rather than powers. Rather than a sovereign system of justice, Israel’s judicial system is part of a wider Anglosphere world where precedents in Australia can bind Israeli courts.

This has led to an evolutionary process in which the Israeli High Court has asserted not just the right but the obligation to police whether elected Israeli governments carry out what it interprets to be their duties.

This extends far beyond merely striking down laws, as the Supreme Court does in the United States. The basis of the Israeli courts’ rulings is a “reasonableness doctrine” in which the court can block decisions on the basis that they are “patently unreasonable.”

According to this doctrine, the Israeli courts have asserted the right to exclude officials from office due to past corruption cases (most recently a senior cabinet member), to intervene in zoning cases on subjective grounds, and to interfere with regulations.

The most dramatic use of this power has come with political appointments. The court in 1993 blocked the appointment of a director general of a ministry on the basis of a past conviction, even though the individual in question had received a presidential pardon. The court alleged that “appointing such a person to a high-level position of authority undermines public trust in government and impairs the quality of the public service.”

The Court has extended this principle to deputy ministers, ministers and even the prime minister, with the implication that the court can force the resignation or removal from office of any politician whose presence would “undermine trust.”

This power, in short, is at the heart of the so-called “Netanyahu corruption case,” which involves allegations of the prime minister discussing favorable coverage with a media magnate.

In the American press, this has been portrayed as an effort for Netanyahu to try to gut the court in order to avoid jail time, but there was never much prospect of the prime minister facing jail.

The actual issue is whether, if the prime minister were to plead guilty to the equivalent of a misdemeanor, it is appropriate for the court to require the removal of the democratically elected leader of the country from office. Imagine if the U.S. Supreme Court ruled that the President of the United States would have to resign if it came out they had run a red light or stop sign years earlier.

A law requiring any official to resign if they were to plead guilty, or engage in activity which would meet a nebulous standard of “undermining public trust,” would be struck down by the U.S. Supreme Court for being unconstitutionally vague, not to mention an infringement on separation of powers and individual rights.

In most other countries, such a law could be amended or repealed by the legislature. In Israel, however, there is no way to challenge a court ruling to the same effect. The court exists outside of the political process. Non-politicians hold a majority on the nominating panel. The issue at stake is not one of interpreting a law, but a constitutional principle the court created on inference from a British case in 1947.

Because the court is not enforcing laws or policies passed by the Knesset, the only way the Knesset can regulate the court’s behavior is to legislate on the court’s make-up, procedure, and authority. The debate over “judicial reform” encompasses all three.

The Judicial Appointment Commission for the Israeli High Court is set down in the Judges Law passed by the Knesset in 1953. It created a nine-member commission including two Ministers, two Knesset Members, three Justices of the Supreme Court, and two members of the Israeli Bar Association.

As the Chair of the Knesset Committee at the time remarked, the government of its own will gave up its power to a commission where politicians would be a minority.

Yet the Knesset as the sovereign representative of the Israeli people retains the right to recover that power in response to misuse. In fact, it has been amended repeatedly, most recently in 2008 when it was made a requirement that any successful candidate receive at least seven of nine votes on the commission.

That law, which has been targeted by Netanyahu’s new government, allowed the three sitting members of the Supreme Court on the commission a veto over any future appointment, even if every member of the Bar and elected official supported a candidate.

The 2008 reform is anti-democratic and is arguably incompatible with the original intent of the Judges Law. Why include representatives of Cabinet, Knesset, and Bar if the Supreme Court could simply ignore the other three?

Rather than removing the “veto” of the Supreme Court Justices representing a threat to democracy, it is the presence of that veto which makes a mockery of the pretense of checks and balances.

Two other pieces of legislation are working their way through the Knesset at the moment. The first would limit the ability of the Court to apply the “reasonableness” standard to government decisions, though it is subject to internal debates within the coalition as to whether to apply merely to ministers or departmental decisions as a whole.

The second is a much more extensive effort to restore the sovereignty of the Knesset while retaining checks on a rogue executive. It would allow for a Knesset majority of 61/120 members to “override” a Supreme Court decision. This override in turn could be suspended by a supermajority of Supreme Court Justices, 12/15, until the next election, allowing for the public to weigh-in on the issue.

These proposals highlight a core aspect of the judicial reform controversy. The case for judicial reform is accepted by all but a few elements of left and ultra-secular circles who do not believe they will ever be able to implement policy democratically.

Where differences exist, and whether the “reform” threatens “judicial independence” or restores it depends on where the line is drawn. Allowing elected officials to hold a majority on the nominating commission is very different than allowing the Minister of Justice to simply appoint candidates at will, especially given the revolving door of Israeli cabinet appointments. Requiring 12/15 rather than 8/15 judges to vote to declare government decisions unreasonable is arguably much more reasonable than either 8/15 or 15/15.

The process of compromise has been obstructed by the unwillingness of the left to deal with either Netanyahu himself or the fact that he received a democratic mandate last fall. It has become a matter of conviction that Netanyahu is pursuing reform to “protect himself” from corruption charges ending his political career, and as such, any reforms which would allow Netanyahu to remain in the office to which he was elected are non-starters for the opposition.

Unfortunately for them, allowing a majority of the elected Knesset to decide who is prime minister is the most reasonable of the proposed reforms, and the minimum required for any serious discussion. A refusal to discuss that means a refusal to discuss anything else.

Worse, by focusing their opposition on Netanyahu, who is a relative moderate on reform, opponents have ignored the wider issues which motivate the other side. This is a belief that the court and the legal profession do not properly represent the diversity of Israel or the views of Israelis.

It would be simplistic to reduce this to a charge that the court is “left-wing.” The court reflects the social backgrounds of its selection process, which in practice means the Israeli Bar and the existing Supreme Court Justices. Such a system in the United States might not be inherently left-wing by design, but in practice, a judicial selection committee made up of three judges and two bar officials from Yale and Harvard would lean heavily secular and to the left on social issues, even among its nominally Republican members, who themselves would be underrepresented.

In Israel this situation is far worse. The legal system bears the imprint of the Ashkenazi academics and lawyers who founded it in a country where a majority of the Jewish population is descended from migrants who came either from the Arab world or the former Soviet Union. The latter are more likely to be excluded from top academic programs and lack the familial connections which make Israeli institutions pseudo-hereditary.

Worse, the Israeli judicial system is structurally rigged against Orthodox Jews and those without Anglo-American backgrounds. Complaints that Jewish or Halachic law does not prevail in the Israeli judicial system are often dismissed as calls for theocracy.

In reality, they are responses to a system which is based on British precedent, where it is difficult if not impossible to advance without familiarity with English, and experience abroad is a major advantage. The Jewish state has a non-Jewish system of justice where the Jewish language, Hebrew, is secondary to traditions and rulings in non-Jewish states. The entire principles of the system do not reflect how millions of Israelis see themselves.

These complaints, so easily dismissed by protestors and the American media, are justified. The solutions currently being offered may be clumsy, and in some cases counterproductive, such as bypassing a broken court system rather than fixing it, but the refusal to acknowledge them means that the left has rejected dialogue with figures such as the head of the Orthodox Shas party who reportedly favors a compromise.

There are in fact two different “judicial reform processes” occurring in tandem. One is aimed at delineating specific powers of the court in relation to the government and ending the Supreme Court veto on appointments, the other to make the judicial system better reflect Israelis.

By boycotting the Knesset process and trying to use the issue to oust Netanyahu while also treating those pushing for inclusion as advocates of “theocracy,” the opposition has forced the two processes to merge into proposals not merely to reform the judicial selection process but to take control of it, and not to limit court’s power but to make it subject to majority votes.

Agreeing to the demands of everyone else within the pro-reform coalition is the only way to ensure any of those demands, including absolutely necessary ones are met. The divisiveness of the process is a direct consequence of intransigence of opponents.

Like Democrats in the United States, the Israeli left and center-left have adopted a rule or ruin approach. Having defined their political project on the basis of the removal of Netanyahu, they have decided that accepting his permanence is too high a price to pay for working within the system.

Instead, they have attempted to push him into a corner where he must go much further, and then use that to insist they have been vindicated.

Daniel Berman is a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics. He also writes as Daniel Roman.