Australia/Israel Review


The Case for the Judicial Reforms

Jan 29, 2023 | David Weinberg

Israeli Justice Minister Yariv Levin announces the proposed legal changes (Screenshot)
Israeli Justice Minister Yariv Levin announces the proposed legal changes (Screenshot)

The reform of Israel’s legal system – proposed by Justice Minister Yariv Levin – does not only not threaten democracy, but is reasonable and necessary as it will restore the balance of power between the judiciary, legislature and government.

What made this reform necessary was the politicised Supreme Court, imperious office of attorney-general, and a legal clique in every government ministry that have policymaking in a chokehold at the expense of lawmakers in Knesset and government.

These legal beagles have fashioned a system whereby they self-replicate with impunity and occupy every central intersection of policymaking. They even pretentiously call themselves “shomrei hasaf,” the guardians of the gates of democracy.

Except that these much-too-powerful actors have upset Israeli democracy by usurping powers they were never intended by Israel’s founders or parliamentarians to have; powers that extend far beyond those held by the legal system in any other democracy.

Furthermore, they skew decision-making to the utmost progressive side of any issue, making it impossible for the right and centre-right – which is where most Israelis are – to govern effectively.

It is the judicial system that threatens Israeli democracy, not Levin’s reforms. 

As such, it is sensible to change the way justices are selected, and to circumscribe their ability to strike down Knesset legislation as they idiosyncratically see fit.

Former Supreme Court President Aharon Barak (Image: Wikimedia Commons)

As per the example set by former Supreme Court mega-President Aharon Barak – and as perpetuated ever since through his hand-picked successors – every matter in Israel today is subject to the personal prejudices and individual inclinations of the enlightened members of the highest bench. They often rule according to their own slippery scale of propriety.

And, as Barak unilaterally decided, any person has standing before the Court on any subject, and everything is “justiciable”, meaning that everything from tax to defence policy is subject to the reproach of the Supreme Court.

The Court has developed a series of pliant concepts with which to carry out its self-declared “judicial revolution”. Take the term “reasonableness,” which runs like a computer virus through the Supreme Court’s decisions over the past two decades. 

“Reasonableness” is authoritarian jargon that allows Court justices to elastically apply their own sensibilities and socially re-engineer Israeli society in their “enlightened” image.

“Substantive democracy” is another newfangled term that Barak concocted. This means that the Court takes on itself a made-up responsibility to set “substantive norms and standards of decency” for public life, and to apply “broad interpretations” of the law to fit its own perceptions of “values”, “balance”, and “equality” – even if the law books don’t contain any such terms or prescriptions.

Given the current makeup of the Court, decisions that employ such infinitely flexible principles invariably are skewed toward the progressive side of the political spectrum, as mentioned above.

And thus, the Court has ruled in recent years with a liberal fist on allocation of Jewish National Fund land, Palestinian residency rights in Israel, the operation of the Palestinian Authority headquarters in Jerusalem, rights of foreign converts to citizenship, ultra-Orthodox draft deferments and stipends to yeshiva students, commerce on Shabbat, and so much more.

There was little hard-core law involved in these cases. You could guess the Court’s decision in advance simply by looking at the composition of the panel of justices. The more progressive the panel, the more drawn-out-of-thin-air sermonising there was likely to be in the decision. Essentially, the Court made political decisions, “values” decisions, camouflaged as law.

For example, the Supreme Court ruled it “unreasonable” to compromise and close Bar-Ilan Street in Jerusalem for several hours on Shabbat, even though a public committee of prominent religious and secular Jews – which was far more representative of Israeli society than the Court – had found otherwise. 

The Court also struck down Knesset legislation relating to the illegal immigration of migrant African workers, and it did this three times even though the Knesset each time passed revised laws with a large majority. The Court simply decided that it knew better than parliamentarians what was “reasonable”.

 

What’s next? Would a decision by the government to extend Israeli law to all settlements in Judea and Samaria be a “reasonable” decision? How about the opposite decision – to dismantle all settlements? Or a cabinet decision to cut off relations with the United States or to bomb Iran? Which of these decisions would be “reasonable” and which not? The imperious justices will decide, not the electorate – unless something changes.

And it is not just the Supreme Court. The office of the attorney-general and its army of legal commanders in every government ministry have also fallen into the habit of overriding value judgements passed into law by the democratically elected representatives of the Israeli public and of replacing them with their own so-much-finer feelings.

Case in point, regarding terrorists: In 2018, the Knesset passed a law allowing the interior minister to revoke the citizenship or permanent residency status of convicted terrorists, and their social benefits too. But the Attorney-General decided to gut the law of its intent by forcing the interior minister to grant Arab murderers an alternative “temporary resident” status, which gives the terrorists full benefits, such as unemployment insurance, child support, disability insurance, and social security payments when they get out of prison. Of course, this is the exact opposite of what the Knesset intended.

Levin’s level-headed legislation will place limits on such interventionism by judges and attorneys-general. It will allow the Supreme Court to overrule Knesset legislation only when sitting with a full bench and with a large majority of justices. It will dissuade the Court from swatting away legislation with the amorphous argument of “unreasonableness”.

It will appropriately redefine the role of the attorney-general and its many associates as advisors to the government, not as judges-juries-and-executioners all rolled into one.

And most importantly, Levin’s proposal will give back to Israel’s elected representatives majority control of the committee that selects Supreme Court justices, and force open confirmation hearings in the Knesset – just like in the US.

This is not “the end of democracy,” but rather a long-overdue fix to Israeli democracy. It behoves opposition parliamentarians to relate to Levin’s proposals with the serious attention they deserve. Instead of climbing up the ramparts with ominous threats and intemperate sloganeering, lawmakers should debate and negotiate the terms of the legal reform.

David M. Weinberg is a senior fellow at The Kohelet Forum and Habithonistim: Israel’s Defence and Security Forum. © Israel Hayom (www.israelhayom.com), reprinted by permission, all rights reserved.

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